Scott v. Liebman

Inn, SCOTT Tidelands Motor Morin d/b/a Petitioner, Respondent. LIEBMAN,

James

No. A-10939.

Supreme Court of Texas.

May 18, 1966.

Rehearing Denied June 1966.

Baker, Botts, Shepherd Coates, & R. Gooch, Gordon Houston, petitioner. for Lapin, Schwartz & Houston, for re- spondent. GREENHILL, undisputed that he did not know that Justice. closed. brought action Liebman James question, Liebman the occasion Scott, doing business On

against Morin acquaintances and their per- for and some business Houston, Motor Inn in Tidelands gone to dinner and had re- wives had out when Liebman injuries sonal suffered Tide- turned to Mr. Liebman’s room at the glass sliding door through a clear walked m., de- p. Liebman Trial lands. At about 9:30 night. Inn at at the Tidelands Motor map papers get to a road and some defend- sired was to a which convicted the of plain- out his car. He was a nonresident of negligence ant of and exonerated the Texas, his a offered to mark negligence. trial and friend contributory tiff of The trip. sliding map The court, however, the road for his return rendered for parking area ad- up- glass door led the notwithstanding defendant the verdict opened jacent risk: to Liebman’s room. So phase of assumed he on the basis of one door, open, proceeded glass the the left it had breached no that defendant Meanwhile, map papers. get sit- plaintiff. The Court of Civil chilled; the felt so she shut judg- that Mrs. Liebman ting Corpus at Christi reversed proceeded to glass then plain- door. Liebman judgment for the ment and rendered room; seeing to his and not return tiff. 391 540. and was glass door, walked into it he Many appear undisputed. of the facts severely cut. the Tidelands was Mr. Liebman’s room at entrances. ground and had two at level un being as regard the evidence We sliding glass One of the entrances was a glass disputed that Liebman did not see polished. glass clear and door. The was is no closed condition. There door its lights the motel room. The were on inside suggestion did see it and neverthe that he There lighting The outside was subdued. deliberately proceeded to walk less tapes, designs markings to indi- were no or witnesses, plaintiff’s anyway. it One of the presence glass. of the The handle cate on the inside a associate who was business door. frame of the and lock were room, that he Liebman’s testified witnesses, a plaintiffs tendered as One other, eye looking each Liebman at were “glass expert, glass door” testified that room; eye, to the as Liebman returned design, and that was one of common door proceeded though the door and Liebman or sliding glass installed at doors open. 90% were near the time of the construction design. of that Tidelands were into evidence Pictures introduced lights night with the demonstrated that at at Mr. Liebman and his wife had been room, it difficult turned on inside day Tidelands a or two. He had to detect the the darkened outside from during used the door on several occasions posi presence glass door a closed day days they there. There had been that there was a There was evidence tion. previously used no evidence that he had was warping imperfection small amount undisput- night. glass door at But it it, too, detect easily is not glass; but door, knew ed that he knew about the short, in a glass clear ed. In glass, how the door was about the knew circum position night, at under the closed operated. constructed, it knew how regard present, not be stances here would He conceded that he that he would knew us, as an proposition, ed in an abstract it injured if he into or be walked open danger which would and obvious we shut; e., recognized when it was i. he knowledge. charge people with dangerous to walk into a closed it would be its jury, door, appreciated danger. issues submitted to and he The the de- as follows: problem it answers thereto were is made difficult because adjacent appropriate fendant failed to feet the window use such look- door, his head and without design sliding door as would ducked window, broke person ing been into the used further walked care, Having proximate it, injured. and this was a cause and was defect, said plaintiff’s the court injury; plaintiff particular Liebman the ex- obvious, actually keep open not fail to for as it proper did lookout was safety; plaintiff’s his own when the walked into wife was isted theory sliding guilty negligence shutting glass, recovery denied under the accident; door; no was not an the defendant was under unavoidable plaintiff’s damages $7,743.30. consequently and the had were breached

no to him.

The defendant does not have here points of being error that regard Stasny distinguish- there is no evidence to We as support only the jury. Stasny, answers of plaintiff the the In the Thus able. portions upon neg of the (he trial the glass issues of of the knew the existence of ligence negligence and contributory ended stated that he walked around it to enter favorably plaintiff. to the We turn to he a store), now the but that it was in knew phase the of position assumed through risk mentioned above. he closed which The position defendant’s main Stasny, is injury. that since could In not-walk without plaintiff knowledge had of the glass condition the was a static it condition. Here clear glass door and how worked], plaintiff it not. the [the was Here the of knew plaintiff and since the glass; conceded proof but there is no that he knew appreciation and danger of walking condition, the of dangerous wit, the through glass a door, closed the defendant of piece closed condition the door. A of the plaintiff owed no duty. glass night The defend clear at and under the circum- ant upon relies A. C. Burton & present open Co. stances here not so Stasny, 223 require Tex.Civ.App.1949, charge S.W.2d obvious court the refused, writ subsequent opinions person, some it, through who walks with knowl- Appeals, Courts of Civil edge of presence. opinion wherein its The of this Court applications refused for of Eighth Court for the Circuit writs error notation, Markets, with the Jiffy Re F.2d Vogel, “No in Inc. v. 340 versible Laundry invisibility Error”: (1965), persuasive Acme v. 495 Co. on the Ford, Tex.Civ.App., transparent 284 745 of glass S.W.2d at night ques- as that ; (1955) Bros., Crawford v. “open Given tion Tex.Civ. relates to obvious.” App., 318 S.W.2d 123 (1958); and Rae Perhaps Liebman should have known City

burn v. Houston, Tex.Civ.App., about, seen, and should have the closed (1961). S.W.2d 488 glass Perhaps door. he ascer- should have leading The case Stasny. There open tained that the door was still before invitee, daytime through walked out walking indicated, into the room. As these plate glass a fixed window which next was “should known” and “should have to a door. The had entered appreciated” proper sub- issues were the through store the door next to the window. jects inquiry for the issues glass He knew the window was there. contributory negligence to be followed opinion says he had “full proximate con- No facts,” issues cause. such forgot these but he about glass way tributory requested.1 window. On his negligence out when issues were some ests, Ine., (Tex.Sup.1963). 1. In fairness able for counsel the de 371 S.W.2d 368 fense, occurred, problem in this trial and the issues This -will be dealt later prepared submitted, opinion ordering were in remand for before our this opinion Halepeska in Inter v. Callihan a new trial. previous building; e., ex child contribu- Liebman had some i. was had posure glass working. torily negligent; citing Stasny, door and its (3) it, opened and had in duty. He had closed there had As been no breach however, a number of walked entrance about the Stasny, the child knew day times two he had been at (through condition the fixed stated, proof door; Tidelands. As is that these forgot ran) he next to the he but daytime exposures. be were it could While it. If had closed the about Mr. Liebman repeated argued that after observations remained door this case and had and use of the knew how closed, and he nevertheless walked back position, there were it looked a closed it, nearly it wrouldmore come with exposures night at here to not sufficient Stasny, Raeburn Laundry, Acme knoweldge charge him wtih such as was cases. Gillespie, done 382 S.W.2d Wesson The third case mentioned above is Craw- Moreover, (Tex.Sup.1964). in Wesson Bros., ford v. 123. As Given

the defect was a static condition. opinion, opin- we read the basis of opinions by of the three Courts Two primary negligence ion is the absence of on Appeals previously mentioned dis- Civil part the de- defendant. Since tinguishable upon same basis as building safely” “soundly fendant’s Laundry Stasny case. In Acme Co. built, was held not to be en- Ford, 745, plaintiff in 284 S.W.2d warning any concerning glass titled to daytime through glass a fixed win- walked paneling in no the store. If there was glass evi- dow or wall next to a door. The primary negligence, duty” aspect the “no plaintiff dence is clear that the knew about properly of assumed risk was not reached. court further glass window. The Opinions jurisdic- from this and other at “there was no evidence that stated that Space tions are discussed in An Illusion of they the time of the accident [the Farmer, Panel, by —The Norvell and Glass plain- panels] perceptible.” were Since (Oct. 29 Insurance 633 Counsel Journal conditions, tiff true it was knew of the 1962); Cases, Door and Panel 31 Glass not recover. The deci- held that could Lawyers seq. American Trial 98 et Journal by holding that sion is further buttressed pro- (1965); Annotation, “Liability law, a matter of there was no evidence prietor premises open public for in- the construction primary negligence walking or occasioned one into premises. of defendant’s door, colliding plastic panel or or with Houston, Similarly, City in Raeburn v. wall,” opin- (1959). 68 A.L.R.2d 1204 This daytime 488, upon 346 the child part S.W.2d a consid- ion has been based panel plate glass next ran a fixed eration of those articles. fact, opinion three has, door. The concepts review, then, basic holding: (1) the court To

grounds for its place this duty) and to (no risk primary negligence of assumed no found evidence by this opinion in with others context city; (2) part on of the defendant Court,2 following be stated. will care” ran the child “without due Triangle (1952); 2. For McKee, example, v. Motors of Dallas E. General Robert 517, 354, Richmond, Patterson, 258 S.W.2d 152 Tex. v. 163 Tex. Contractor Supply (1953); Henger, (1954); Auto v. 60 Campbell, Western Smith v. 391 271 S.W.2d (Tex.Sup. 456, 425, 373 735 20 A.L.R. S.W.2d 226 Tex. Interests, 1963); Halepeska Seale, (1950); Harvey Callihan 362 S.W. 2d 853 (Tex.Sup.1963); Inc., (Tex.Sup.1962); Kane 371 S.W.2d 368 Wood v. 2d 310 Works, 191, Moore and Red Ellis v. Wardlaw 238 S.W.2d Boiler 150 Tex. d/b/a Farm, Tex., Parish, (1951); Town Tex. 401 S.W.2d 789 Dee v. 172 171, (March 22, 1966). (1959); Schiller 327 S.W.2d Rice, 246 S.W.2d 151 Tex. knowl- (1) actual suggest begins premise Court that the oc- themselves with ap- knowledge and condition, cupier duty ordinary edge owes a care to plaintiff, by the danger preciation of the duty it is in invitees. That remains unless knowledge and (2) constructive discharged some or removed. manner part of the appreciation on the patently ob- danger was (either because principles Under the of assumed repeated exposures), or vious or because of risk, occupier in owed an to an warning. (3) may vitee be reduced to zero if the invitee assumes the risk or held assumed to have first, Lieb- held that we have As to concept the risk. This basic originated knowledge of the condi- man had actual no leading English case of Thomas v. known He conceded that if he had tion. Quartermaine (Ct. of Appeals) [1887], 18 condition—that the door was shut—he Q.B.D. 685: appreciated would have known dangerous. But he did not know occupier “The of an the condition. danger upon

which have element of its vanishing point them reaches second, As constructive cognisant case of those who are charged knowledge, that the we have held voluntarily danger, full extent of the physical night not so conditions at were run the injuria.” risk. Volenti non fit patently require charge obvious as to us him knowledge of the condition. Sim Stated differently, say the cases ilarly, we had have stated that Liebman occupier owes no if the invitee has previous not had a ex sufficient number of actual of the condition knowl- posures to the dangerous condition to edge of danger, appreciation charge him with of the condi Or, danger. if patently the condition is so he, prudent tion. Whether as an open and obvious that the must person under the circumstances should it, have seen the Court charge will him with glass, seen the or should have known knowledge of the condition. It is some- of the condition, contributory are issues of times stated that may not close negligence. eyes his Or, obvious conditions. duty discharged occupier Or, if the suggested, occupier may warns as above the invitee. The warning discharge duty by function of warning the invitee give is to (so give invitee as to him knowledge apprecia- an opportunity tion). appreciate The defendant danger. Ellis does not contend that any v. Moore there Wardlaw, warning; was argued and it is not Red Town d/b/a Farm, Tex., that a warning 22, 401 would have been unneces- (March S.W.2d 789 sary or 1966). except If useless say person with such ap- preciation, does not warning or if need a if after a he knows of warning, plain- tiff in conditions appreciates and knows and case pro- nevertheless ceeds, the danger. duty zero; Whether he knew of the condi- occupier tion e., leads us i. back to whether occupier there was longer duty no any owes actual or knowledge. invitee, We have and the may invitee re- not held that there was none. cover because he has assumed the risk. Applying concepts the above to the facts duty Therefore occupier, of the case, of this we possibilities examine the Inn, Tidelands Motor discharged was not

by which the (to of the Tidelands use removed. The remained. Since the due care to make the jury safe or to found the defendant-occupier to be Liebman) warn might have been discharged guilty primary negligence acquitted or removed so that longer it was no under contributory negligence, any duty plaintiff. to the ways The since there was no removal discharge of 294 duty, Brandon, 636,

defendant’s the trial court erred in Ins. Ass’n 126 Tex. 89 entering judgment for the (1936); City defendant not- Houston 982 S.W.2d withstanding the jury. Blackbird, verdict (Tex.Sup.1965). S.W.2d 394 159 Here, however, the trial did court brings question us to the as to This judgment. not enter an Assum errorless judgment what by should be entered this ing that other in the Rules matters set out Court. The trial judgment court entered a satisfied, ordinarily such as 434 for the Ap defendant. The Court of Civil appellate court to render the peals found this to have been an erroneous judgment which the trial court should have judgment, and conclusion we Master Transit entered. Le v. Fort Worth agree. begin Therefore we with an erron Co., 512, (1942). 138Tex. 160 224 S.W.2d judgment eous of the trial court. The Court Appeals of Civil reversed and rendered However, both the Court of Civil judgment in plaintiff. favor of the Our Court, Appeals having found error this problem is judgment whether to affirm that court, in of the trial are auth or to order a remand of the cause to the proper in orized case to remand in the in trial court in justice. the interest of justice. terest of Both courts have discre justice” question “interest of is rais- Holden, Dahlberg tion in this matter. 150 ed the following circumstances. The 179, (1951); Tex. Rule S.W.2d 699 trial of this case occurred before our deci- specifically 434.3 Rule 505 authorizes this Halepeska, sion in supra. opin- Before that power Court to do so. This constitutes McKee, ion and under Robert E. General exception to the rule announced the Le Patterson, 517, Contractor v. 153 Tex. 271 Master case cited above. 391 (1954), S.W.2d the “should have

known” appreciated” and “should have is- The Court of did not Civil sues were considered at least some to be justice, remand in the interest of but that issues of fact for the in assumed risk preclude doing does this so. Court (“no duty” and volenti) cases. The state- Couch, Southampton Tex. Civic Club v. ment in McKee, Robert E. General 464, 470, 516, Con- (1959) at 520 S.W.2d tractor v. giving Patterson rise to that ; Wilson, as- (on rehearing) Benoit v. 150Tex. sumption disapproved Halepeska. (1951). therefore We Counsel for the defendant here tells us that power hold that this Court does have good faith upon and in reliance this justice, remand the interest of and we opinion McKee, Court’s prepared proper have concluded that is a case requested his “should known” issue or power. in which to exercise that part duty” theory issues as of the “no rather judgments courts below are than contributory negligence as to issues reversed, and the is remanded to the cause by proximate be followed issues of cause. district court for a new trial. urges He therefore that his client has not fairly been changes treated when this Court

the rules after the case has been tried. WALKER, GRIFFIN, HAMILTON STEAKLEY, JJ., dissent. thing Halepeska.

The same in occurred Halepeska, inBut the trial court had enter- judgment.

ed an errorless Since the trial CALVERT, (concurring). Chief Justice court judgment, had entered an errorless I I in entered. do this Court could concur not remand the interest Halepeska 613, v. justice. Davis, under the rule announced of Davis v. 141 Tex. so Inc., Interests, Tex.Sup., 371 S.W. (1943); Employers’ Texas Callihan of Procedure. 3. All rules referred Texas Rules Civil to are 368, defining duty (1963), 2d an It also this might be well to observe that occupier invitees, occupier land to his as follows: Court has that never stated premises care owes a “If there are dangers which are not which it in some manner “remains unless open obvious, is under a he discharged Halepeska In or removed.” precautions reasonably

take such as a Interests, Tex.Sup., Callihan 371 S.W.2d prudent person protect would take to we said “in a suit an that invitee invitees therefrom or to warn them there- against occupier, the invitee must not open of. But if there are obvious only prove injured proxi- that he was as a dangers know, of which the invitees mate encountering result of a condition on they of which charged with knowl- an involving unreasonable risk edge, occupier then the owes them ‘no harm, prove, part but he must also duty’ protect to warn or to the invitees. plaintiff’s case, occupier that owed so, say, This is the cases because there is him a duty precautions to take reasonable duty’ ‘no person to warn things he warn protect him or danger.” him such already knows, dangerous or of condi- open tions or activities which are so holding, base its The Court seems obvious that as a matter law he will respondent did analysis, the fact last on charged be apprecia- with he knowledge that the door not have actual tion thereof.” fails, my opin- It open left was closed.

ion, proper weight to give to consider and WALKER, respondent (dissenting). Justice Re- a matter of law. charged as should be I respectfully my opinion In dissent. spondent he knew he would testified that case ruled A. C. Burton Co. Stasny, into the injured if he walked probably be Tex.Civ.App., 223 S.W.2d 310 (wr.ref.); knew that the door glass door. He closed Laundry Ford, Acme Co. Tex.Civ.App., polished glass. He was made of clear and ; (wr.ref.n.r.e.) S.W.2d 745 and Craw handle lock were also knew that the Bros., ford v. Tex.Civ.App., Given 318 S. frame, tapes, de- there were no and that W.2d 123 (wr.ref.n.r.e.). In so far as the glass. He further signs markings on the question concerned, it seems to open made to knew that the door was me that there is no material distinction be purpose, and He had it for that close. used tween a aperture in an so con certainly known that a door must have structed appearance as to have the of an necessarily opened remain once does not open door and sliding glass door which Respondent open indefinitely. knew that appears open to be when is closed. There lighted, interior of was well the room is as much anticipate reason to inat lighting and that was subdued. the exterior tentive guest attempt would walk through If he did not realize that it was difficult to other, the one as anyone who tries presence detect the from the walk through probably either will be in circumstances, it outside under these seems jured. Only one basic difference occurs to fair that he should be with knowl- me: pass visitor could unharmed every edge possessed by child who has look- doorway happened if the door night ed window at opened to be but would have no chance lighted the darkened lawn into room of whatsoever getting safely through the his home. glass. I do see how the cited can cases be distinguished, respondent as the Court It is true that did not know says, ground on the opened evidence there that the door he had been closed wife, failed primary negligence petitioner. show did but neither Re- construction premises spondent when that is knew as much about the condi- very question petitioner with which we are tion of the here knew or concerned. might learned exercise of care, my opinion and in he is appreciation law with danger using encounted in I

as he did. would reverse affirm

the Court Civil

of the trial court.

GRIFFIN, HAMILTON and STEAK

LEY, JJ., join in this dissent. Petitioner, Texas,

The STATE of al., Respondents.

Tom D. EASLEY et

No. A-10830.

Supreme Court of Texas.

June 1966.

Case Details

Case Name: Scott v. Liebman

Court Name: Texas Supreme Court

Date Published: May 18, 1966

Citation: 404 S.W.2d 288

Docket Number: A-10939

Court Abbreviation: Tex.