Bill's Dollar Store, Inc. v. Bean

MAJORITY OPINION

LESLIE BROCK YATES, Justice.

Appellant, Bill’s Dollar Store, contests jury findings of negligence .and gross negligence in a premises liability action arising out of a slip and fall at appellant’s store. Appellant contends the wet floor warning given to appellee was adequate as a matter of law. We agree, reverse the judgment below, and render judgment that appellee take nothing.

Background

Appellee, Linda Mae Bean, was checking out of appellant’s store in Winnie, Texas, when a child spilled cola between the store exit and the check-out counter where appellee stood. Linda Weekly, the store assistant manager, ■ immediately began cleaning the spill with a wet mop and instructed the cashier to inform customers of the spill while she retrieved a dry mop. The area of floor mopped by Weekly was *369approximately three feet from where ap-pellee stood at the check-out counter. The cashier warned appellee that the floor was wet and advised her to be careful. Appel-lee acknowledged that she heard the warning and that she knew where the spill was and of the risk posed. Nevertheless, she walked over the wet area and fell. Appel-lee sued the store alleging negligence and gross negligence. The jury found appellant acted with negligence and gross negligence and awarded $495,954.27 in actual damages and assessed $1,000,000 in exemplary damages. Based on the jury’s assessment of forty percent responsibility to appellee, the trial court reduced the damage award by forty percent.

Issues

Appellant contends the trial court erred in submitting the issue of negligence to the jury and overruling its motion for judgment notwithstanding the verdict because the evidence established as a matter of law that appellant discharged its duty to appel-lee by warning her of the dangerous condition.

As to gross negligence, appellant contends there was no evidence to support submission of the gross negligence issue to the jury. Because we reverse the negligence finding, we also reverse the finding of gross negligence. See Travelers Indem. Co. of Illinois v. Fuller, 892 S.W.2d 848, 849-52 (Tex.1995) (plaintiff cannot recover punitive damages unless she has suffered a compensable injury).

Negligence — Adequacy of Warning

In reviewing a “matter of law” challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law. Id.

Tort liability depends on both the existence of and the violation of a duty. Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex.1997). An owner or occupier of land has a duty to keep the premises under his control in a safe condition. Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985). This duty is discharged by warning the invitee of unreasonable risks of harm either known to the owner or which would be known to him by reasonable inspection or by making the premises reasonably safe. McCaughtry v. Barwood Homes Assn., 981 S.W.2d 325, 330 (Tex.App.—Houston [14th Dist.] 1998, pet. denied).

In this case, the jury was instructed that appellant was negligent if:

1. The condition posed an unreasonable risk of harm, and
2. Defendant knew or reasonably should have known of the danger, and
3. Defendant failed to exercise ordinary care to protect Plaintiff from the danger by both failing to adequately warn plaintiff of the condition and failing to make that condition reasonably safe.

Therefore, appellant’s duty to appellee is discharged if it either warned appellee of the condition or made the condition safe. In other words, if the evidence conclusively established that appellant adequately warned appellee of the condition, appellant cannot be found negligent as a matter of law. See State v. Williams, 940 S.W.2d 583, 584 (Tex.1996).

Appellee and the dissent argue that allowing a warning to discharge duty is predicated on the assumption that any *370subsequent mishap is caused solely by the plaintiffs negligence. Therefore, they argue, the issue of appellant’s warning was properly addressed in the jury’s answer to the comparative negligence question. In Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978), the supreme court abolished the no duty concept with regard to premises liability cases. The court in Parker concluded the plaintiffs knowledge of the dangerous condition, whether derived from a warning or the facts, should not affect the defendant’s duty. Id. at 521. Prior to Parker, a plaintiff was not only required to establish a duty owed and violation of that duty by a defendant, but he had to additionally “prove the absence of his own subjective knowledge and appreciation of any danger.” Id. at 516. The Parker court abolished the additional requirement, but, contrary to appellee’s assertion, did not change the underlying obligation to establish a duty on the part Of a defendant and a violation of that duty. Dixon v. Van Waters & Rogers, 682 S.W.2d 538, 534 (Tex.1984); See also Middleton v. Harris Press & Shear, Inc., 796 F.2d 747, 751 (5th Cir.1986). Here, appellant acknowledges its duty to appellee, but asserts the evidence shows it discharged that duty as a matter of law.

Applying the appropriate standard of review, we first examine the record for evidence that supports the jury’s finding that appellant failed to adequately warn appellee of the wet floor. In an attempt to show she was not adequately warned, appellee presented'the testimony of Dr. Harvey Cohen, a safety and human factors expert. Dr. Cohen testified that the warning given by the cashier was not adequate because warnings should both point out danger and describe how to avoid the condition. An owner or occupier is required to warn of the condition or take reasonable steps to make the condition safe. McCaughtry, 981 S.W.2d at 330. We have found no case that requires the owner or occupier to also explain how an invitee can avoid the condition of which she has been warned. See Restatement (Second) of ToRts § ■ 343 cmt. b. (“To the invitee the possessor owes ... [the] duty to exercise reasonable affirmative care ... at least to ascertain the condition of the land, and to give such warning that the visitor may decide intelligently whether or not to accept the invitation.... ”). Therefore, Dr. Cohen’s testimony does not support the jury’s finding that appellee was not adequately warned.

We now review the record to determine if the contrary position is established as a matter of law. See Dow Chemical, 46 S.W.3d at 241. Appellant contends that the warning given to appellee discharged the duty owed to appellee. The cashier testified that she “told [appellee] to watch the wet spot as she walked out the door.” The cashier testified that she pointed out the wet area for the customers that followed appellee, and that those customers were able to avoid the wet area by walking around it. ■ Appellee testified that the cashier pointed out the wet area, that she “could see the floor was wet,” and that she knew from her experience working at a convenience store and from “common sense” that the freshly mopped-floor could potentially be a slipping hazard. Appellee further testified she could see that the route she planned to take out the front door was wet. Appellee stood at a distance of approximately three feet from the spill as it was being mopped. Under these particular facts, the warning given was adequate as a matter of law. Because appellant conclusively established that it adequately warned appellee of the dangerous condition and appellee presented no evidence to the contrary, the trial court erred in submitting the issue of negligence *371to the jury. Appellant’s first issue is sustained.

Accordingly, the judgment below is reversed and it is ordered that plaintiff take nothing.

WITTIG, J., concurred and dissented.