*1 State, v. Cantrell 129 Tex.Crim. (App.1935). longA line 781-82 construing
of Texas decisions art. 38.23 if con
hold that a fact issue is raised
flicting concerning stop, and requested,
an instruction is such instruc State, v. See Stone given.
tion must be (Tex.Crim.App.1986);
703 S.W.2d State, (Tex.
Jordan
Crim.App.1978). proving
The State had the burden of that either of
beyond a reasonable doubt violations occurred. The evi- two
dence on this issue was oral tes- police conflict-
timony by the officers and
ing by the defendant. it for the to decide whether a traffic occurred. We hold the trial court
violation requested by failing
erred submit
instructions. this error
The next issue is whether Jordan, the Court of
is reversible. Appeals held that the failure to
Criminal requested instruction such
submit a
instruction is raised the evidence is re analysis was followed
versible error. hold, therefore, Stone.
error is reversible. court’s is reversed
The trial for trial.
and remanded STORES, INC.
STANLEY d/b/a Foods, Appellant, Jr., Orgain, Bell & Knabeschuh, Louis H. Beaumont, Tucker, for VEAZEY, Appellee. Reaud, Quinn, Quinn, Morgan & Cris E. Beaumont, appellee. for No. 09-91-169 CV. WALKER, C.J., Appeals of Before BURGESS, JJ. Beaumont. BROOKSHIRE OPINION 22, 1992. Rehearing Denied Oct. WALKER, Chief Justice. appropri- presents
This case involving of a case ate submission store. slip and fall incident *2 885 Factually, 17, 1988, July on or interject about or cause of action appellee, Veazey, shopping plaintiff Katherine which the was could recover. Vidor, Orange in store in in Specifically, appellee Coun- for the first time ty, appellee alleged appellant guilty Texas. the suit shopping, was negligence (1) liquid failing supervise on a to in to clear and fell (2) Appellant’s premises; appellant vendors manag- floor. assistant store on its er, Billingsley, negligent Mr. Sam in was in the exercise of control it was a back room checking groceries retained over the conduct of vendors on its a load of premises; and, (3) appellant employee lady when an notified him that a in maintain had its Upon Billings- fallen on aisle Mr. two. area, conditioning system roof and air on the ley’s inspection of the he found “a premises. The trial court allowed the puddle paper small cup.” of water and a “Supplemental Pleading” objection over cup The trial-type was a small similar to appellant. being those used in the store at that time in
promotion Pepsi display. Billings- of a Mr. Appellant brings points four of error to ley inspected liquid noting that it was Appellant’s point this Court. of error num- clear and looked like water. The soft dispositive appeal. ber one shall be of this promotion Pepsi was for Cola and Slice. Point of error number one contends the Billingsley Mr. concluded that the sub- trial in overruling appellant’s court erred stance on the floor was either Slice or motion entering judg- for new trial and in possibly water since the water fountain appellee ment for jury’s based Pepsi promotion. was near the Pepsi The Question Question answer to 1 because display was located near the front entrance failed to include the essential elements of a quite of the store some distance from premise defect case. appellee where fell. There is no evidence The trial court submitted this case under showing cup how the small and the clear simple negligence theory recovery by substance came to rest in its location. inquiring, negligence, any, “Did the Other evidence admitted at trial showed those proximately named below cause the that the air conditioning units located on question?” jury occurrence re- the roof appellant’s building had been sponded by answering “Yes” as to both repaired 29, 1988, 6, 1988, on March May appellee Question 2 the May July 1988. Evidence inquired as to percentage indicated that there had been in excess of negligence to be attributed party. to each during 15 leaks period of time from 1983 jury appellee, Veazey, found to 1984. eventually The roof replaced percent negligent appellant, Stanley but continued to leak into 1987. There had Stores, Inc. d/b/a/ Foods to be 75 been rain showers in the immediate area percent Question Jury at fault. 3 related day prior appellee slipped to the date damages. and fell. There were also water marks on Subsequent to the trial of this case and ceiling indicating of the store that there while pending appeal, this case was had been leaks. Texas Court handed down its deci- Appellee’s original sought petition sion in Linda Kroger Com- appellant hold premise liable under a defect pany, 1992 WL theory alleging that the floor condition con- (June 3, 1992). It is the dangerous stituted a condition or unreason- case that this Court to reverse and able risk of harm. At the conclusion of the remand this cause to the trial court for part charge and as a trial on the merits. ference, appellee sought granted and was “Supplemental Pleading”. leave to file her sought Linda Keetch to hold “Supplemental Pleading” sought liable under both a condition and a originate Pepsi The trial court fall did indeed from the theory. ongoing on at the Keetch submitted the case to the which was only premise an theory. time of the fall. we have slippery spot activity (Pepsi display) found that there on the one area gen- *3 floor which an unreasonable risk store and and fall substance activity of harm to refused to erated from that in another area of Keetch. says, “Recovery on a find that knew or should have the store. Keetch a slippery spot, the that known therefore nothing by a judg- person injured trial court rendered a take have been or as temporaneous of ment. The Court of affirmed the result the itself by by a created the judgment and our rather than ours). under activity.” Even Court affirmed the of the Court proof positive assumption, Veazey Mrs. Appeals. slipped by on a “condition created the activ- that, Kroger The facts in Keetch reveal ity.” employee sprayed plants prior some time p.m. 7:00 Keetch on the floor and then, plain We conclude that for a approximately p.m. fell At the time at 7:30 negligent activity tiff to entitled to a be ongoing activity Keetch there no fell submission, the evidence must show that relating spraying plants. to the Our injuries directly to the the were related Supreme Court determined that Keetch activity itself. may injured by the condition have been by spraying created the but she was not Applying to the case before spraying. injured by the Court, supportive this there is a lack of justify evidence to the trial court’s submis in the record be- sion of a cause of action. support negli- fore us is insufficient to injury find no connection the between activity theory recovery, or the gent ongoing Pepsi display which would simple negligence theory by submitted injury conclude that the occurred lead us to present state of the trial court. Under the as a result of an law, there are two avenues available activity. The trial court erred jury by for submission of according submit this case to those ele the trial court in cases. premise liability forth in ments of set Cor The first of these two theories is set forth Stores, Inc., supra. Safeway bin v. Stores, Inc., 648 Safeway Corbin (Tex.1983). The second timing opin- of the Keetch view recovery by for submission available cause, ion to the trial of this we believe negligent activity theory. trial court is the justice is better served a reversal Redinger Living, See this for trial on the and remand of cause (Tex.1985). understanding Our merits. submitting negli- Keetch is before REVERSED AND REMANDED. recovery, gent activity theory of a trial should first consider from the evi- pleading injury BURGESS, Justice, if the dissenting. dence and contemporaneous to an on- created respectfully majority I dissent. The activity. “Contemporaneous,” is de- going injury finds “no connection between the Collegiate Ninth New fined Webster's ongoing Pepsi display and the which would as, “existing, occurring, origi- or Dictionary that the occurred lead us to conclude nating during the same time.” contemporaneous result of a activity.” disagree. I There was testimo- Lets assume that all of manager law) (matter liq- ny from the assistant proof positive company drink had a dem- Veazey duty that a soft Mrs. uid which caused samples onstration/display dispensing free Yeazey’s
at the time of Mrs. accident.
Furthermore, paper cup that looked like
one of those used in the soft drink
was found where Mrs. had fallen. manager
The store testified that whenever cus-
there was a soft demonstration get cups,
tomers would throw them
everywhere spill and sometimes “stuff” ev-
erywhere. manager agreed further
that the store had to extra careful to be
keep days the floors clean on those *4 promotions.
there were soft drink Co., (June 3, 1992) is informative and
instructive, it is the converse of the case There, supreme up-
before us.
held a Corbin submission when it stated:
“The trial court did not submit a added). these In the facts.” us,
case before we are called to re-
view a submission based
activity. The lesson of Keetch is to look at Here,
the facts. the facts show an when the This is occurred.
some evidence that Mrs. in-
jured result1 of the itself, which takes this case outside supports
of Keetch and a submission under
simple negligence. Therefore, I would point
overrule of error number one. PALERMO, Relator,
Danny McCORKLE, Lamar
The Honorable
Respondent.
No. C14-92-00201-CV. (14th Dist.).
Houston 1992. Unfortunately Hopefully, dispo- result"? the ultimate Justice Cook has inserted a new raneous jurisprudence phrase with- into the of our state of this case will tell us. sition "contempo- suggesting out a definition. What is