UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 96-41057
__________________
LARRY STEWART,
Plaintiff-Appellee,
versus
WAL-MART STORES, INC.,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
(2:95-CV-94)
______________________________________________
July 3, 1997
Before WISDOM, BENAVIDES, and STEWART, Circuit Judges.
BENAVIDES, Circuit Judge:*
This slip-and-fall case requires us to examine whether the
record contains substantial evidence from which the jury could
reasonably infer that Wal-Mart Stores, Inc. (“Wal-Mart”) knew or
should have known of the dangerous condition that caused Larry
Stewart’s injuries. We also review the jury’s award of past
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
medical expenses.
2
I.
Larry Stewart filed this diversity suit in federal district
court against Wal-Mart on a premises liability theory after he
slipped and fell in a Wal-Mart store. The case was tried to a
jury. After Stewart rested, Wal-Mart moved for a directed verdict
on the ground that Stewart failed to show that Wal-Mart had actual
or constructive knowledge of the dangerous condition that caused
his injury. The district court denied Wal-Mart’s motion. Wal-Mart
did not call any witnesses.
The jury was instructed that Stewart had the burden of showing
that Wal-Mart knew or should have known of the dangerous condition.
The jury found that both Wal-Mart and Stewart were negligent and
apportioned negligence 50 percent to Wal-Mart and 50 percent to
Stewart. The jury awarded Stewart $75,000 for past medical
expenses. Wal-Mart contends that the plaintiff adduced evidence at
trial of only $64,827 in past medical expenses.
On August 19, 1996, the district court rendered judgment on
the jury’s verdict for $37,500. Wal-Mart timely filed a motion for
judgment as a matter of law. In the alternative, Wal-Mart
challenged the amount of the award by filing a motion to amend or
modify the judgment. The district court denied both motions on
October 9, 1996. This appeal followed.
II.
Larry Stewart slipped and fell in a puddle of water at the
Wal-Mart Supercenter in Longview, Texas on a Saturday afternoon.
3
He fell in the self-service cut flower and potted plant sales
section near the entrance of the store. The fall knocked him
unconscious for several minutes.
Morris Belt, an off-duty Texas state trooper, came to
Stewart’s aid. At trial, Officer Belt testified that he knelt at
Stewart’s side until the ambulance arrived. When Officer Belt got
up, he noticed that the left knee of his blue jeans was soaked with
water. He then saw that there was a “pretty good puddle of water”
on the floor. The puddle “stemmed from the flowers to where Larry
fell.” When asked whether the water “appear[ed] to be coming from
those cut flowers, that area,” Officer Belt responded
affirmatively. He also testified that “[t]here was some brown
soily substance mixed in with the water,” which “kind of filtered
out to the edges where it appeared that it was running.” According
to Officer Belt, the water was flowing in a “three or four inch
stream, you know, a solid stream coming, and then just little
sprinkles coming off of that.” On cross examination, he stated
that he had not paid attention to whether the water was coming from
cut flowers or a potted plant.
The jury also heard testimony from David Boozer, an area
director (assistant manager) at the store. Boozer testified that
although he saw a puddle of water where Stewart had fallen, he did
not investigate the source of the water. He explained that “there
was no need to investigate because it was a puddle of water and it
could have come from several different places.” According to
4
Boozer, Wal-Mart employees started watering the plants in that area
at 3 a.m. daily. (The store is open 24 hours a day).
Finally, Stewart presented deposition testimony from Jeff
Waggoner, a Wal-Mart field manager. Waggoner agreed that “the
entrance area where the slip-and-fall occurred is one of the two
highest traffic areas in the store.” He also agreed that “it was
predictable that water would accumulate in that spot1 in the
store.” He added, “[w]e would have water in that area at some
time, sure.”
III.
DISCUSSION
A.
Wal-Mart appeals the district court’s denial of its Rule 50
motion for judgment as a matter of law. See FED. R. CIV. P. 50. In
reviewing the denial of a motion for judgment as a matter of law,
we use the same standard of review that guided the district court.
Crosthwait Equip. Co. v. John Deere Co., 992 F.2d 525, 528 (5th
Cir.), cert. denied, 510 U.S. 991, 114 S. Ct. 549, 126 L.Ed.2d 451
(1993). We consider all the evidence and all reasonable inferences
therefrom in the light most favorable to the nonmovant. A motion
1
Only designated portions of the deposition were read into the
record. It is not entirely clear that “that spot” refers to the
precise place where Stewart fell, but it is a reasonable inference
in support of the jury’s verdict. In fact, Wal-Mart appears to
assume in its brief that Waggoner’s testimony referred to that
area.
5
for judgment as a matter of law is properly granted if the facts
and inferences point so strongly and overwhelmingly in favor of one
party that reasonable jurors could not arrive at a contrary
verdict. Id. If the record contains substantial evidence opposing
the motion, then the motion should have been denied. Id. (citing
Normand v. Research Inst. of Am., Inc., 927 F.2d 857, 859 (5th Cir.
1991)). Substantial evidence is “evidence of such quality and
weight that reasonable and fairminded jurors in the exercise of
impartial judgment might reach different conclusions.” Id.
(citation omitted).
This case was properly submitted to the jury as a dangerous
condition premises liability case.2 To establish a premises
liability claim under Texas law, an invitee must show: (1) the
occupier had actual or constructive knowledge of some condition on
the premises; (2) the condition posed an unreasonable risk of harm
to the invitee; (3) the occupier did not exercise reasonable care
to reduce or to eliminate the risk; and (4) the occupier’s failure
to use such care proximately caused the invitee’s injuries. Corbin
v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983); see also
Folks v. Kirby Forest Indus., Inc., 10 F.3d 1173, 1175-78 (5th Cir.
2
This case was not, nor should it have been, submitted to the
jury on a “negligent activity” theory. In Texas, recovery under a
negligent activity theory “requires that the person have been
injured by or as a contemporaneous result of the activity itself
rather than the condition created by the activity.” Keech v.
Kroger Co., 845 S.W.2d 262, 265-66 (Tex. 1992).
6
1994) (applying Texas premises liability law). Wal-Mart disputes
that the record contains substantial evidence that it had actual or
constructive knowledge of the condition of which Stewart
complains.3
Under Texas law, the jury may infer that the owner or occupier
knew or should have known of a dangerous condition if there is
evidence that the dangerous condition was created by the owner or
occupier. See Keech, 845 S.W.2d at 265-66; Corbin, 648 S.W.2d at
297; Coffee v. F.W. Woolworth Co., 536 S.W.2d 539, 540 (Tex.
1976).4 Under this rule, the record in this case contains
sufficient evidence from which the jury could reasonably infer that
Wal-Mart knew or should have known of the dangerous condition.
The jury could have reasonably concluded that Wal-Mart created
a dangerous condition by placing a display of plants and flowers
near the store’s entrance in one of the most highly trafficked
3
Wal-Mart does not argue that the puddle of water on the tile
floor did not constitute a dangerous condition, nor does it contest
any element other than actual or constructive knowledge.
4
Wal-Mart relies on Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1,
3 (Tex. 1996). In Motel 6, the supreme court reaffirmed that the
owner’s or occupier’s actual or constructive knowledge of a
dangerous condition gives rise to a duty toward invitees. Id. The
court of appeals found, and Motel 6 did not dispute in the supreme
court, that Motel 6 neither knew nor should have known that the
shower was unreasonably dangerous. Accordingly, the supreme court
held that Motel 6 had no duty to remove risks of which it was not
nor should have been aware. Id. The court said nothing about the
evidence necessary to show actual or constructive knowledge. The
court’s decision in Motel 6 is entirely consistent with previous
Texas law, including Corbin.
7
areas of the store. Testimony from Wal-Mart managerial employees
indicated that Wal-Mart managers made a conscious decision to place
this display in a busy area near the entrance of the store to
attract impulse buyers. Officer Belt’s uncontradicted testimony
established that the water on which Stewart slipped was flowing
from a potted plant or cut flowers in Wal-Mart’s display.5
Boozer’s testimony that Wal-Mart employees usually watered the
plants at 3 a.m. does not alter the undisputed fact that the water
on which Stewart slipped in fact came from Wal-Mart’s own display.
Stewart’s evidence that Wal-Mart created the dangerous condition is
sufficient to allow the jury to infer that Wal-Mart knew or should
have known of the dangerous condition. See Keech, 845 S.W.2d at
265; Coffee, 536 S.W.2d at 540.
Aside from Texas’s rule that the jury may infer actual or
constructive knowledge from the creation of a dangerous condition,
the jury’s verdict is also supported by common sense. Wal-Mart
should have known that plants, which must be watered, and cut
flowers, which must be kept in water, will create slippery floors
in the area where they are displayed.6 Indeed, the record shows
5
Boozer, the assistant manager at the scene, neglected to
investigate the source of the water and did not contradict Officer
Belt’s testimony.
6
Texas law does not require that Wal-Mart have known of the
presence of this particular puddle. Keech, 845 S.W.2d at 265
(“Safeway did not have to know that a particular grape was on the
floor at a particular time because it knew that the grapes would be
on the floor due to the nature of the display.”)(discussing Corbin,
8
that that is exactly what happened in this case. Finally, the
jury’s finding is also reinforced by some evidence, albeit slim, of
actual knowledge: Waggoner, a Wal-Mart field manager, testified
that it was predictable that water would accumulate in this area.7
Although we recognize that this appeal presents a close
question, we are not convinced that the “facts and inferences point
so strongly and overwhelmingly in favor of [Wal-Mart]” that a
reasonable jury could not find that Wal-Mart knew or should have
known of the dangerous condition. Thus, the district court
properly denied Wal-Mart’s motion for judgment as a matter of law.
B.
Wal-Mart next argues that the district court erred when it
failed to grant Wal-Mart’s motion to amend or modify the judgment.
Wal-Mart claims that Stewart adduced evidence at trial of
$64,827.09 in past medical expenses, yet the jury awarded $75,000.
As Wal-Mart points out, counsel for plaintiff in closing argument
asked for only $64,827.09.
648 S.W.2d at 296). By contrast, proof only of the presence of the
puddle would be insufficient to allow the jury infer actual or
constructive knowledge, absent evidence of the length of time the
puddle remained on the floor. Compare Rojas v. Wal-Mart Stores,
Inc., 857 F. Supp. 533, 538 (N.D. Tex. 1994).
7
Waggoner gave no indication that water would accumulate in
this area because of the floral display. He was specifically
questioned only about “water slickened or snow slickened floors.”
9
Remittitur is the appropriate remedy for an excessive damage
award, especially where the award does not appear to be the product
of passion or prejudice and “the defects in the award are readily
identifiable and measurable.” Brunnemann v. Terra Int’l, Inc., 975
F.2d 175, 178 (5th Cir. 1992). The jury’s award in this case does
not appear to have been based on bias or prejudice, but instead
appears to have been “merely excessive” based on the evidence
Stewart proffered at trial. See id. (noting that “[d]amage awards
which are merely excessive . . . are subject to remittitur . . .”).
Moreover, the defect in the award is “readily identifiable and
measurable.” Id.; Texarkana Mem. Hosp., Inc. d/b/a Wadley Reg.
Med. Ctr. v. Murdock et al., No. 95-1073, 1997 WL 205982, at *5
(Tex., Apr 25, 1997), pet. for reh’g filed (May 12, 1997)(“The
award of past medical expenses is readily capable of measurement by
a certain standard.”). We construe Wal-Mart’s motion to amend or
alter the judgment as a motion for remittitur. This court
generally reviews the denial of a motion for remittitur under an
abuse of discretion standard. Id.
Stewart offered and the district court admitted into evidence
Stewart’s medical records, which reflect a total of $64,827.09 in
past medical expenses. Stewart argues that in addition to the
amounts reflected in these records, the record supports an
additional award of $25,000-$30,000 for spinal fusion surgery,
which Stewart underwent prior to trial. Stewart offered the
10
deposition testimony of Dr. Guy Danielson, the surgeon who
performed the operation, that the reasonable cost of the surgery
would be $25,000-$30,000. Although the surgery had not yet been
performed at the time of Dr. Danielson’s deposition, Stewart
testified that he had undergone the fusion surgery before trial.
Dr. Danielson also testified that the physical therapy associated
with the surgery would cost between $3,500 and $5,000.
Although Stewart offered testimony that a range of charges
would be reasonable, Stewart failed to offer testimony that the
surgery was necessary. Texarkana Mem. Hosp., 1997 WL 205982, at
*4. Thus, the total necessary past medical expenses proven at
trial fall short of the $75,000 awarded by the jury. Inasmuch as
the evidence of past medical expenses would only support a finding
of $64,827.09 and in view of the jury’s comparative negligence
findings, Stewart should be limited in this proceeding to the
recovery of $32,413.54 rather than the $37,500 actually awarded.
On the basis of this record, Stewart should be required to remit
$5086.46.
Stewart also argues that even if the evidence adduced does not
support the award of $75,000, the error was harmless because he
presented evidence of other types of damages that were not awarded
by the jury. He also appears to argue that because the
discrepancy, if any, is not large, it does not affect Wal-Mart’s
substantial rights. These arguments are without merit.
11
IV.
For these reasons, we AFFIRM the district court’s denial of
Wal-Mart’s motion for judgment as a matter of law. We REVERSE the
district court’s denial of Wal-Mart’s motion to amend or alter the
judgment, and we direct the district court to grant a remittitur of
$5086.46. If the plaintiff refuses to remit this amount, we order
a new trial as to damages for past medical expenses only.
12