In The
Court of Appeals
For The
First District of Texas
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NO. 01-02-00019-CV
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RICE FOOD MARKET, INC., Appellant
V.
RHONDA HICKS, Appellee
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 99-57526
DISSENTING OPINION ON DENIAL OF EN BANC REVIEW
I respectfully dissent from the Court's denial of en banc review.
The majority, citing Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992), states that an inference that a premises owner had actual or constructive notice of an unreasonable risk of harm to invitees "as a matter of law is improper unless knowledge is uncontroverted"; and it holds that Rice's knowledge is not established as a matter of law because it denied knowing that the sign which fell was hazardous. The majority does not mention the rule for inferring knowledge when knowledge is controverted, namely, that knowledge may be inferred, in an appropriate case, when (1) the owner has actual knowledge of the unusually high risk associated with a display (e.g., a slanted grape display), even though it does not know about the particular hazardous event (a particular grape on the floor); (2) the condition has existed for a period of time; (3) "store employees were working on the display stand which caused the injury"; or (4) "the premises owner or occupier created a condition which poses an unreasonable risk of harm." Id. at 265-66.
The majority states first that there is no evidence the sign had fallen down before. This type of argument, that the past is predictive of the future, is valid only when the dangerous condition actually has caused harm in the past and been ignored; it does not follow from the fact that an event did not happen in the past that it will not happen in the future. The majority concludes, "there is no evidence in the record that the sign was a dangerous condition from the moment it was installed." This is simply false. The evidence shows that the condition was created by Rice employees' having attached a large, heavy overhead sign by means of velcro straps, ignoring the screw holes by which the sign was designed to be attached.
Finally, the majority states that there was no evidence of how long the sign had been in place. That argument applies only when the length of time the condition was present makes it more likely that the injury which did occur will occur, such as the increasing risk over time that steps will become unstable, as in CMH Homes, Inc., v. Daenen, 15 S.W.3d 97, 102 (Tex. 2000), which the majority cites, or when the owner lacks a reasonable opportunity to discover the dangerous condition. See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 297 (Tex. 1983). The danger of an improperly attached sign's falling does not increase over time; or, if it does, that fact does not alter the fact that a large, heavy overhead sign attached with velcro straps instead of screws is dangerous from the moment it is improperly installed.
Rice admitted that simply looking inside the kiosk would have revealed that the sign was improperly attached. The occupier of premises is considered to have constructive knowledge of any dangerous condition that a reasonably careful inspection would reveal. Id., 648 S.W.2d at 295.
Under Keetch and Corbin, the majority should have held that the jury could reasonably have inferred Rice's knowledge of the unreasonably harmful condition posed by the sign from the proof that Rice employees created it and even a minimal inspection would have revealed it. Because I believe that the majority's opinion is contrary to established law and that its disposition in this case will affect the outcome of many cases tried in the fourteen county jurisdiction of this Court, I respectfully dissent from the denial of en banc review.
Evelyn V. Keyes
Justice
Panel consists of Justices Hedges, Jennings, and Alcala.
Justice Alcala, dissenting.
Appellee requested en banc review.
Justices Hedges, Taft, Jennings, Nuchia, and Higley voted to deny en banc review.
Chief Justice Radack and Justices Keyes, Hanks, and Alcala voted to grant en banc review.