# Keetch v. Kroger Co. > Texas Supreme Court · December 2, 1992 · 36 Tex. Sup. Ct. J. 273 URL: https://www.frixlaw.com/law-library/cases/9771256 ## Case - **Full name:** Linda KEETCH, Petitioner, v. the KROGER COMPANY, Respondent - **Court:** Texas Supreme Court - **Decided:** December 2, 1992 - **Citations:** 36 Tex. Sup. Ct. J. 273; 845 S.W.2d 262; 1992 Tex. LEXIS 159; 1992 WL 353305 - **Precedential status:** Published - **Opinion:** Concurrence by Hecht - **Judges:** Cook, Hecht, Phillips, Cornyn, Mauzy, Doggett, Gammage - **Cited by:** 659 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9771256 ## How later opinions describe it (automated extraction) - stating that submitted a proposed charge to the trial court, “[e]rror in the charge must be preserved by dis- which omitted any inclusion of Ronnie's contribut- tinctly designating the error and the grounds for the ory negligence and the new and independent cause objection” an… - explaining that the fact that the premises owner creates a condition may support an inference of knowledge, but alone is insufficient to prove knowledge as a matter of law; an inference of knowledge cannot be made as a matter of law unless knowledge is uncontroverted; and give… - explaining that a premises defect claim exists when the injury allegedly occurred as a result of a condition created by the activity while a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather tha… - holding that a plaintiff who slipped on water that an employee had sprayed on the floor could not recover under theories of general negligence or negligent activity because the employee had sprayed the water 30 minutes before plaintiff’s fall and “there was no ongoing activity… - stating that “[e]rror in the charge must be preserved by distinctly designating the error and the grounds for the objection” and holding that error was not preserved when the complaint of the trial court’s failure to submit in broad form was first raised in this Court ## Opinion text HECHT, Justice, concurring. I concur in the Court’s opinion and write separately only to respond to the dissent. The dissent would hold that if a store owner or his employees creates a dangerous condition in the store, he has notice of the condition as a matter of law. This is simply incorrect. A person’s awareness of a condition cannot necessarily be inferred from the fact that he created it, and thus proof that he created a condition cannot establish his awareness of it as a matter of law. It often happens that a person who creates a condition knows it at the time, as the authorities the dissent cites reflect. But this is not always so. As in this case, for example, an employee may accidentally spray something on the floor without actually knowing it. And he is not charged with constructive knowledge of the condition when it occurs despite his exercise of ordinary care, so that he neither knew nor in the exercise of ordinary care should have known what had occurred. It is perfectly logical to conclude, as the jury did in this case, that a Kroger employee created the slick spot where Keetch slipped and fell, but that he neither knew nor should have known that he had done so. The dissent also argues that to submit jury questions in broad form in premises liability cases, an element of liability — in this case, whether the owner had actual or constructive knowledge of the unreasonable risk — must be omitted from the charge. It should hardly need be said that broad form submission does not entail omitting elements of proof from the charge. Broad form involves inclusion of multiple elements within a single question, usually by adding accompanying instructions, when it is feasible to do so. It alters only the form of the charge, not the substance. *268 One element which must be proved to establish liability in the circumstances of this case is that the premises owner or occupier knew or reasonably should have known of the dangerous condition before the accident occurred. Keetch was obliged to obtain a jury finding on this issue. The trial court might have submitted the matter to the jury in the manner the Court suggests, by including the element as part of the definition of negligence, instead of submitting a separate question to the jury. But it could not omit the finding altogether, as the dissent contends. Finally, the dissent charges that the Court holds Keetch specifically, and plaintiffs generally, to a higher standard for preserving error in the charge than it set in State Dept. of Public Highways v. Payne, 838 S.W.2d 235 (Tex.1992). The dissent claims “that Keetch objected to the trial court’s granulated jury charge”. Ante, at 272. But the objection the dissent refers to did not so much as hint that the trial court’s granulated submission was improper or that the charge should have been in broad form. Keetch did request the same question the Court suggests today, but she requested no accompanying instructions. A party does not object to a failure to submit a jury charge in broad form by requesting questions without the necessary instructions. This case is quite different from Payne , where the State specifically requested a question on the one element of proof missing from the charge under the proper theory of liability. Keetch did not complain to the trial court that the charge was not submitted in broad form. Even if she had, I would not hold that the trial court’s refusal to submit a broad form charge in this case was reversible error. See H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259-60 (Tex.1992). PHILLIPS, C.J., and CORNYN, J., join in this concurring opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9771256. Public record. Not legal advice.