the Kroger Company v. Betty Shaw and Robert Shaw

Opinion issued January 30, 2009

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-07-00030-CV

____________

THE KROGER COMPANY, Appellant

V.

BETTY SHAW AND ROBERT SHAW, Appellees

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Cause No. 16505

MEMORANDUM OPINION

Appellant, The Kroger Company, appeals from a judgment rendered on a jury

verdict finding them negligent in a premises liability lawsuit filed by appellees, Betty

Shaw and Robert Shaw. In its sole issue, Kroger contends the trial court erred by

denying its motion for judgment notwithstanding the verdict (JNOV), asserting that

there is no evidence to support the jury's finding that it had either actual or

constructive knowledge of the condition of the Mart Cart that caused Betty's fall.

Because we conclude that the evidence is legally insufficient, we render judgment in

favor of Kroger.

Background

Betty was legally blind, having only a ten degree field of vision. She was able

to see perfectly when looking straight ahead, but had no peripheral vision. In

February 2001, Betty entered Kroger's store in Clute, Texas. Betty walked in the

store's secondary, side entrance near the pharmacy. Betty saw a Mart Cart just inside

the side door that she said was "backed in place," ready "to be moved out and go

shopping." Betty boarded the Mart Cart and drove to an air-freshener display. As she

attempted to get off the cart, her left foot caught the Mart Cart's charging cord and

she fell against the store shelving, landing on her knee. When she crawled back to

the cart, Betty noticed the cord tied to the handles of the Mart Cart and a portion of

the cord stacked on the floorboard.

Drug manager Monique Miller was summoned by another customer to attend

to Betty. Assistant store manager Kendra Carey also soon arrived. Robert, Betty's

husband, was summoned into the store from the parking lot, where he had been

waiting. Later, Betty was helped into her car by a Kroger employee. Betty was

subsequently treated for knee and back injuries.

Carey completed an internal customer incident report, checking with the

customer service manager, Amy Gilliam, and the opening sacker to see whether they

had known of the problem. Neither the service manager nor the opening sacker had

known of the problem with the cart. Although the Mart Cart's cord reel was

supposed to retract into the rear housing unit to keep the cord out of the way, it was

undisputed that the cord reel on the Mart Cart boarded by Betty was not working at

the time of the accident and that the charging cord was not retracted, but instead was

coiled on the floorboard and tied to the stem of the handlebars.

Kroger had three Mart Carts, which were rechargeable, electric shopping carts

for the convenience of its infirm and disabled customers. Betty knew of the charging

area where the Mart Carts were normally kept, but said that the cart that she got on

was not in that area. Betty stated that she did not see the cord when she boarded the

Mart Cart, nor did she notice it at any point while driving the cart to her first stop.

Kroger's employees were trained that if they saw a Mart Cart unattended and

not in the charging area they were to return it to the designated charging area and plug

it in to be recharged. All employees received ongoing training that if they saw

something was out of order, they were to tag it "Out of Order" and to call

engineering. Additionally, the Clute store employed an opening sacker who was

responsible for getting the front of the store ready for business, including inspecting

the Mart Carts, around 6:00 a.m. every morning. There was conflicting testimony as

to whether or not customers or Kroger employees unplugged the Mart Carts before

putting them into use: Betty said that she never unplugged a cart in her twenty years

of Mart Cart use, while Kroger's manager testified that it was always the customer's

responsibility to unplug the carts.

The jury determined that both Kroger and Betty were negligent, and that their

negligence proximately caused Betty's injuries. The jury found Kroger to be 60

percent responsible and Betty 40 percent responsible. The judgment awarded

damages to Betty and Robert.

Premises Liability

Kroger contends the trial court erred by denying its motion for JNOV because

no evidence supports a finding of actual or constructive notice for premises liability.

A. Standard of Review

A trial court may disregard a jury's verdict and render a JNOV if no evidence

supports one or more of the jury's findings, or if a directed verdict would have been

proper. Tiller v. McLure , 121 S.W.3d 709, 713 (Tex. 2003); Brown v. Bank of

Galveston, N.A. , 963 S.W.2d 511, 513 (Tex. 1998); Williams v. Briscoe , 137 S.W.3d

120, 124 (Tex. App.--Houston [1st Dist.] 2004, no pet.). We view the evidence

under the well-settled standards that govern legal sufficiency, or "no evidence,"

review. See Wal-Mart Stores, Inc. v. Miller , 102 S.W.3d 706, 709 (Tex. 2003);

Williams , 137 S.W.3d at 124 .

"[L]egal-sufficiency review in the proper light must credit favorable evidence

if reasonable jurors could, and disregard contrary evidence unless reasonable jurors

could not." City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005). If the

evidence "would enable reasonable and fair-minded people to differ in their

conclusions, then jurors must be allowed to do so." Id. at 822 . "A reviewing court

cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls

within this zone of reasonable disagreement." Id. Although the reviewing court must

"consider evidence in the light most favorable to the verdict, and indulge every

reasonable inference that would support it[,] . . . if the evidence allows of only one

inference, neither jurors nor the reviewing court may disregard it." Id. "The final test

for legal sufficiency must always be whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review." Id. at 827 .

However, an inference that is stacked only upon other inferences, rather than direct

evidence, is not legally sufficient evidence. See Marathon Corp. v. Pitzner , 106

S.W.3d 724, 728 (Tex. 2003).

A no-evidence point will be sustained when (a) there is a complete absence of

evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving

weight to the only evidence offered to prove a vital fact, (c) the evidence offered to

prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively

establishes the opposite of the vital fact. King Ranch, Inc. v. Chapman , 118 S.W.3d

742, 751 (Tex. 2003); Heritage Housing Dev., Inc. v. Carr , 199 S.W.3d 560, 565

(Tex. App.--Houston [1st Dist.] 2006, no pet.).

In claims or defenses supported only by meager circumstantial evidence, the

evidence does not rise above a scintilla, and thus is legally insufficient, if jurors

would have to guess whether a vital fact exists. Keller , 168 S.W.3d at 813 . "When

the circumstances are equally consistent with either of two facts, neither fact may be

inferred." Tubelite, A Div. of Indal, Inc. v. Risica & Sons, Inc. , 819 S.W.2d 801, 805

(Tex. 1991). In such cases, we must "view each piece of circumstantial evidence, not

in isolation, but in light of all the known circumstances." Lozano v. Lozano , 52

S.W.3d 141, 167 (Tex. 2001).

Similarly, when injury or death occurs without eyewitnesses and only meager

circumstantial evidence suggests what happened, we cannot disregard other meager

evidence of equally likely causes. See Marathon , 106 S.W.3d at 729 . Thus, when the

circumstantial evidence of a vital fact is meager, a reviewing court must consider not

just favorable but all the circumstantial evidence, and competing inferences as well.

Keller , 168 S.W.3d at 813-14 .

B. Requirements for Premises Liability

Betty was Kroger's invitee, to whom Kroger owed a duty to exercise

reasonable care to protect her from dangerous store conditions known to or

discoverable by it. Wal-Mart Stores, Inc. v. Gonzalez , 968 S.W.2d 934, 936 (Tex.

1998) (citing Rosas v. Buddies Food Store , 518 S.W.2d 534, 536-37 (Tex. 1975)).

This duty, however, does not make Kroger an insurer of Betty's safety on the

premises. See Gonzalez , 968 S.W.2d at 936 . In order to recover from Kroger, the

Shaws must prove:

(1) Kroger's actual or constructive knowledge of some condition on

the premises,

(2) the condition posed an unreasonable risk of harm,

(3) Kroger did not exercise reasonable care to reduce or eliminate the

risk, and

(4) Kroger's failure to use such care proximately caused Betty's

injuries.

See id. (citing Keetch v. Kroger Co ., 845 S.W.2d 262, 264 (Tex. 1992); Corbin v.

Safeway Stores, Inc. , 648 S.W.2d 292, 296 (Tex. 1983)). Liability for knowledge of

a potentially harmful condition can be established either by:

(1) proof of actual knowledge--employees caused the harmful

condition or employees either saw or were told of the harmful

condition prior to the plaintiff's injury therefrom; or

(2) proof of constructive notice--the harmful condition was present

for so long that it should have been discovered in the exercise of

reasonable care.

Wright v. Wal-Mart Stores, Inc ., 73 S.W.3d 552, 554 (Tex. App.--Houston [1st Dist.]

2002, no pet.) (citing Keetch , 845 S.W.2d at 264 ); see also Wal-Mart Stores, Inc. v.

Reece , 81 S.W.3d 812, 814 (Tex. 2002) (stating, "A slip-and-fall plaintiff satisfies the

notice element by establishing that (1) the defendant placed the substance on the

floor, (2) the defendant actually knew that the substance was on the floor, or (3) it is

more likely than not that the condition existed long enough to give the premises

owner a reasonable opportunity to discover it.").

1. Actual Knowledge

Kroger contends no evidence shows actual knowledge that employees caused

the harmful condition or employees either saw or were told of the harmful condition

before Betty was injured.

Actual knowledge requires knowledge that the dangerous condition existed at

the time of the accident, as opposed to constructive knowledge which can be

established by facts or inferences that a dangerous condition could develop over time.

City of Corsicana v. Stewart , 249 S.W.3d 412, 414-15 (Tex. 2008) (citing City of

Dallas v. Thompson , 210 S.W.3d 601, 603 (Tex. 2006)). "Circumstantial evidence

establishes actual knowledge only when it 'either directly or by reasonable inference'

supports that conclusion." Id. at 415 (citing State v. Gonzalez , 82 S.W.3d 322 , 330

(Tex. 2002); City of San Antonio v. Rodriguez , 931 S.W.2d 535, 537 (Tex. 1996)).

The Shaws contend the following evidence shows Kroger's actual knowledge

of the cart's defective condition:

• It is uncontroverted that when Betty boarded the Mart Cart, its

cord retractor was broken and the cord was tied to the cart's

handlebar.

• Monique Miller's statement noted that the cord retractor was

broken and the cord was tied to the handlebar.

• Defendants Exhibits 1 and 2 show the Mart Cart with the cord

tied to the stem of the handlebars.

Although the Shaws contend this evidence shows that Kroger had actual knowledge

of the condition, none of this evidence pertains to knowledge of the condition. This

evidence shows only that the Mart Cart's cord was visibly broken, but it does not

show that Kroger had actual knowledge of the condition of the cord.

The Shaws also point to testimony by Bob Janik, Kroger's manager, but his

testimony is not pertinent to whether Kroger had knowledge about the condition of

the cart Betty rode. Janik stated, "[W]e park [the Mart Carts] in the front end, back

them up, and keep them plugged in in the same spot everyday." However, it is

undisputed that the Mart Cart that Betty boarded was not in its proper location where

the carts are plugged in for recharging. Carey testified that the Mart Carts were

normally kept at the main entrance, not in the pharmacy entrance where Betty found

her Mart Cart. Betty acknowledged that she knew of the charging location at the

store, "but that's not where the cart was that [she] got on."

The Shaws assert that an employee must have been the one who wrapped the

cord around the handle bars and who left the cart in the "backed in" position near the

pharmacy door. However, the only evidence that might support this assertion is

Betty's opinion that is based on speculation about the habits of others. Betty said that

she did not think a Kroger customer would back the cart into place and wrap the cord

around the handlebar, and that was something she believed only a Kroger employee

would do. Betty's opinion contradicts her own testimony that her husband would

leave the carts near the door to the store. Betty's unfounded opinion based on

speculation is no evidence that Kroger employees left the Mart Cart where Betty

found it. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp. , 136 S.W.3d 227,

232 (Tex. 2004) (noting opinion testimony that is speculative is "incompetent

evidence" and cannot support a judgment) (citing Tex. R. Evid. 401).

Our decision turns on whether Assistant Store Manager Carey's testimony

suggesting that customers probably left the Mart Carts they drove outside the store

and Kroger employees would then probably be the ones to bring those carts into the

store is some evidence that the cart found by Betty was probably left there by a

Kroger employee. We begin by noting that Betty's own testimony disputes this

assertion. Betty testified,

[Kroger's Attorney] Okay. When you finished using the Mart Cart

before this [the day of the injury], where

would you - - or how would you return the

Mart Cart?

[Betty] I would drive out to the sidewalk. My

husband would drive the car up and get out

and put the groceries in the cart, then he

would drive the Mart Cart back in the store.

[Kroger's Attorney] Okay. And do you know where he would put

it?

[Betty] No.

[Kroger's Attorney] Do you know if he took it to the charging area

or if he just put it right inside the door like the

other customers?

[Betty] He never put it in the charging area I don't

think. I don't know anybody that ever has

done that.

[Kroger's Attorney] So, you think that when people finish using

the Mart Cart they drive it maybe inside the

door and just set it there?

[Betty] They move it aside, yeah.

[Kroger's Attorney] Okay. Right by the door, right where you

used this Mart Cart?

[Betty] Uh-huh.

[Kroger's Attorney] Right?

[Betty] (Witness nods head).

Although Betty claims her husband would return the Mart Cart into the store,

Carey testified that most customers did not. Carey testified that customers would

probably leave the Mart Carts in the parking lots when they were done using them,

which would then require a Kroger employee to move the cart into the store. The

record shows:

[Shaws'Attorney] But you know that as the testimony was earlier, I

think it was from your counsel, she doesn't return

carts to the inside. And most customers that use the

cart and if they take it outside, a customer's not

going to ride that all the way back in if they're using

the cart, are they?

[Carey] Most of them don't. You're right sir.

[Shaws'Attorney] That's right. And so, it's more likely than not that it

wasn't a customer that rode this thing back in and

parked it in the main entrance that way, is it?

. . . .

[Carey] Probably yes.

. . . .

[Shaws'Attorney] Okay. Well, in this particular instance, wouldn't you

agree with me that it is more probable than not that

if you have a lazy person or an infirmed [sic] person

who has to use one of these carts, that if they take

the cart out to their vehicle to unload their groceries

that they're not likely to drive it all the way back so

they have to walk back to their car?

. . . .

[Carey] As I said before, it is more likely than not.

We must determine whether evidence that customers would leave Mart Carts

outside more often than not and that Kroger employees would then bring those carts

into the store is some evidence to establish that Kroger knew the cart with the broken

cord was left by the front door. Evidence establishes actual knowledge only when it

"either directly or by reasonable inference" supports that conclusion. Gonzalez , 82

S.W.3d at 330. No evidence shows that the Mart Cart Betty rode had been outside

the store at any time before Betty rode it. There was no evidence about how or when

the Mart Cart driven by Betty came to rest where she found it. Because no evidence

shows that this Mart Cart had been outside the store on the day Betty was injured, the

inference that Kroger employees were the likely people to bring carts from outside

into the inside is immaterial. Therefore, even if Kroger employees would probably

bring carts left outside of the store into the store, that fact has no bearing on whether

this cart was left where Betty found it.

Even if we assume that the evidence supports an inference that the cart was

returned to the store by a Kroger employee, that inference does not support the

inference that the Kroger employee left the cart used by Betty near the side door. We

must consider not just favorable evidence but all the circumstantial evidence, and

competing inferences as well, when the plaintiff's case is based on meager

circumstantial evidence. Keller , 168 S.W.3d at 813-14 . Kroger employees were

trained that whenever they saw an unattended Mart Cart, they were to return it to the

designated charging area and plug it in to charge. Employees who drove the carts

back were also responsible for inspecting them; if they found something wrong they

were to tag the cart out of order and then either they would call or a manager would

call facility engineering to come repair it. Kroger also employed an opening sacker

who was responsible for inspecting the Mart Carts, while readying the front of the

store for business around 6:00 a.m. every morning. Assuming the evidence suggests

the inference that employees brought carts from outside to inside, the evidence does

not support the next inference that the employee left the cart used by Betty in the

damaged condition because the evidence in the record shows employees were trained

to tag a broken cart and send notice that it needed to be repaired. We hold the

evidence is legally insufficient to prove that Kroger had actual knowledge of the

harmful condition under the theory that an employee left the Mart Cart at the place

where Betty found it.

For the same reasons the evidence is legally insufficient to show that a Kroger

employee left the cart where Betty found it, the evidence is legally insufficient to

show that Kroger had actual knowledge of the Mart Cart's condition under the theory

that employees either saw or were told of the Mart Cart's condition before Betty took

it. See Wright , 73 S.W.3d at 554 ; see also Reece , 81 S.W.3d at 814 . No evidence

was presented that anyone told Kroger or any of its employees of the condition of the

Mart Cart, and no evidence was presented that any employee was aware of the

condition of the Mart Cart before Betty fell. The evidence is legally insufficient to

show that any employee was aware of the Mart Cart's condition prior to Betty's

injuries. No evidence, therefore, establishes that Kroger had actual knowledge of the

Mart Cart's condition before Betty fell.

2. Constructive Notice

The evidence is also legally insufficient to prove that Kroger had constructive

knowledge, because no evidence shows that the Mart Cart was in the dangerous

condition long enough to give Kroger a reasonable opportunity to discover the

condition.

In the context of premises liability, to prove constructive notice, the evidence

must establish that it is more likely than not that the dangerous condition existed long

enough to give the proprietor a reasonable opportunity to discover the condition.

Gonzalez , 968 S.W.2d at 936 . The rule requiring proof that a dangerous condition

existed for some length of time before a premises owner may be charged with

constructive notice is firmly rooted in the state's jurisprudence. Brookshire Grocery

Co. v. Taylor , 222 S.W.3d 406, 409 (Tex. 2006); see Bendigo v. City of Houston , 178

S.W.3d 112, 114 (Tex. App.--Houston [1st Dist.] 2005, no pet.); Wright , 73 S.W.3d

at 554 .

No evidence shows when the Mart Cart's charging cord stopped retracting or

what caused it to stop retracting. No evidence shows the length of time the Mart Cart

was located by the pharmacy entrance before Betty found it. We conclude no

evidence shows that the harmful condition was present for so long that it should have

been discovered in the exercise of reasonable care. See Reece , 81 S.W.3d at 814 . The Shaws contend we should apply the rule articulated in Corbin. Corbin ,

648 S.W.2d at 295 . In Corbin , the Supreme Court of Texas held that "evidence that

a proximate cause of the fall was the storeowner's failure to use reasonable care to

protect its customers from the known and unusually high risks accompanying

customer usage of a self-service display of goods . . . establishes a right to have a jury

determine the storeowner's liability, even in the absence of evidence showing the

storeowner's actual or constructive knowledge of the presence on the floor of the

specific object causing the fall." Id. The court explained its holding by noting that

"Safeway acknowledged its full awareness of every circumstance under which it

operated the self-service grape display, but contended a walk-off mat was in place at

the time Corbin fell." Id. at 296 . The court determined the requirement of notice to

Safeway was satisfied by the employee's failure to put the mat in place because "the

placing of such a mat in front of the grape display was a function of general store

maintenance." Id. However, the court clarified that it was not imposing liability for

"the failure to comply with a company policy." Id. at 298 . The court stated, "If

reasonable store conduct includes the use of mats or other floor coverings or even

warnings in front if a particular display, then Safeway may be held liable for not using

them, regardless of whether company policy requires them." Id. The court concluded

that its holding was consistent with "[m]any states [that] now recognize that a store

keeper may be held liable for any dangerous premises condition about which he

should be aware, not just for specific objects left on the floor by customers." Id.

The Shaws contend Corbin requires a finding that Kroger had notice of the

cord's condition because the manual for the Mart Cart required daily inspection of the

cord and that this type of inspection would have revealed its broken condition, which

would have prevented this fall by Betty. Unlike Corbin , here no evidence shows that

the problem with the cord was a "known and unusually high" risk, so that "even in

the absence of evidence showing the storeowner's actual or constructive knowledge"

of the broken cord, Kroger had notice of the condition. See id. at 295 . Although

Kroger did not abide by the specific inspection requirement stated in the manual for

the Mart Cart, we cannot impose liability "for failure to comply with company

policy." See id. at 298 . Moereover, the record shows Kroger complied with its policy

to have the opening sacker inspect the carts every morning. Because no evidence

shows the cord was a known risk, Corbin is inapplicable. See id. at 295 .

We hold the evidence is legally insufficient to support the jury's finding that

Kroger had either actual or constructive knowledge of the condition of the Mart Cart

that caused Betty's fall. We therefore sustain Kroger's sole issue that the trial court

erred in denying Kroger's motion for judgment notwithstanding the verdict.

Conclusion

We reverse the judgment of the trial court and render a take-nothing judgment

against appellees, Betty and Robert Shaw.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.