# Keetch v. Kroger Co. > Texas Supreme Court · December 2, 1992 · 36 Tex. Sup. Ct. J. 273 URL: https://www.frixlaw.com/law-library/cases/9771257 ## 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:** Dissent by Mauzy - **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/9771257 ## 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 MAUZY, Justice, dissenting on motion for rehearing. The dissenting opinion of June 3, 1992 is withdrawn, and the following is substituted therefor. The majority gives some friendly advice to those who create hazardous conditions: Look the other way. Ignorance of the law may be no defense, but hereafter ignorance of what your own employees did will be. In creating this new “ignorance defense,” the majority continues its assault on precedent and disapproves what the bench and bar had considered well-accepted Pattern Jury Charges. I dissent. I. The ignorance defense is not only contrary to common sense; it is also a radical departure from settled law. For decades, Texas courts have adhered to the rule that “where a dangerous condition upon a floor is created by the servants and employees, a corporate defendant would have notice thereof as a matter of law and hence proof of knowledge thereof, either actual or constructive, is unnecessary.” Safeway Stores Inc. v. Bozeman, 394 S.W.2d 532, 537 (Tex.Civ.App.—Tyler 1965, writ ref’d n.r.e.). Compare 3 Texas Pattern Jury Charges § 61.02 (1982) (asking whether possessor knew of hazard) with id., § 61.03 (knowledge not required where possessor created hazard). Today the majority totally abolishes this rule, casually dismissing the vast body of case law supporting it. 1 *269 The traditional Texas approach is not peculiar to this state. Other jurisdictions have adopted the same approach unequivocally: The rule requiring actual or constructive knowledge of the defective condition on the part of the storekeeper in order to hold him liable does not apply where the dangerous condition was created by the storekeeper or by persons for whose conduct he is responsible; in other words, where the condition is traceable to an act of the storekeeper or his employees, it is not necessary to prove that he was aware of the condition in order to hold him liable for injuries resulting therefrom. 62A Am.Jur.2d Premises Liability § 574 (1990) (citations omitted); see also 81 C.J.S. Negligence § 81(11) (1966). Six annotations in the American Law Reports reiterate the same rule, 2 three of them calling it a rule of “fundamental significance,” and noting: “No case falling within the scope of this annotation has so much as intimated disagreement with, or possible qualification of, this principle.” 3 The policy concerns underlying the traditional approach are apparent. Unlike a customer, a store owner or occupier has control over the store and its employees, and is able to adopt policies to protect the public. Thus, a store owner or occupier may legitimately be expected not to create a condition that presents an unreasonable risk of harm. By making the owner/occupier liable for the creation of such hazards, the traditional rule encourages the adoption of safeguards to prevent injury. Conversely, by abolishing the traditional rule, the majority removes the incentive for store owners and occupiers to take precautions to protect the public. This court reaffirmed its acceptance of the traditional rule in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (1983). The *270 plaintiff in Corbin complained that the store’s method of displaying grapes resulted in an unreasonable risk of customers falling .on grapes that had fallen to the floor. We unanimously reversed a summary judgment for the store and remanded the cause for trial on this claim, expressly rejecting the approach the court adopts today: Safeway believes the only duty it owes its customers with respect to the prevention of these kinds of falls is to pick up whatever objects it finds or should find on the floors of the store. We do not agree. 648 S.W.2d at 296 . If the dangerous condition had been created by the store, we explained, the notice requirement would be satisfied: Because the placing of [a walk-off] mat in front of the grape display was a function of general store maintenance, the jury reasonably could have inferred that Safeway, through its employees, had failed to put the mat in place. This inference would satisfy the requirement of notice to Safeway. Id. (emphasis added). To support its repudiation of this approach, the majority misrepresents and misapplies two earlier decisions from this court: Coffee v. F.W. Woolworth Co., 536 S.W.2d 539 (Tex.1976), and Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.1970). In Coffee , we held that there was legally-sufficient evidence to support jury findings in favor of a customer who tripped and fell over a low, empty platform in the defendant’s store. The jury found both (1) that the defendant had created the dangerous condition, and (2) that the defendant knew or should have known of the dangerous condition. 536 S.W.2d at 540 . If there had been no evidence to support the second finding, we would have had to decide whether the first finding was sufficient to support a judgment for the plaintiff, and the outcome of Coffee would have controlled this case. We decided, however, that the evidence supported both findings; so the proposition for which the majority relies on Coffee was not before the court. The language of Coffee , however, provides strong support for Keetch’s position in this case. The personnel supervisor in Coffee had testified that there were two possible explanations as to why the platform was empty: either the store personnel were changing a display or customers had bought all of the merchandise on the platform. Our discussion on the latter possibility is instructive. Proof of actual or constructive notice of a dangerous condition is necessary, we held, “where an obstacle or slippery substance is on a floor because of the acts of some person, for whom the proprietor is not responsible.” 536 S.W.2d at 539 (emphasis added). The reason for this requirement is that “it is unjust to hold the proprietor liable for the carelessness of some person over whom he has no control, unless he had a reasonable opportunity to discover the dangerous condition.” Id. (emphasis added). The converse is clear: where the dangerous condition is created by the carelessness of a person over whom the proprietor does have control, the proprietor may be held liable regardless of his actual or constructive knowledge. The majority’s reliance on Seideneck is as misguided as its reliance on Coffee . In Seideneck , we determined that there was no evidence that the condition and location of a rug created an unreasonable risk of harm. 451 S.W.2d at 754 . 4 In the present case, Kroger does not dispute the jury’s finding that a slippery spot on the floor created an unreasonable risk of harm. Thus, Seideneck is simply inapplicable. The litigants apparently understand this better than the majority does; neither the parties nor the amici curiae have even mentioned Seideneck in the briefs and argument before the court. *271 II. I agree that premises liability cases should be submitted in broad form, as suggested by Pattern Jury Charge 66.04. I strongly disagree, however, with the court’s rejection of the standard instructions that were meant to accompany that charge. The Comment to Pattern Jury Charge 66.04 explains that it was “designed to be accompanied with the appropriate definitions of ‘negligence,’ ‘ordinary care,’ and ‘proximate cause’ in PJC 65.01-.03.” The majority approves the standard definition of “proximate cause” in Pattern Jury Charge 65.03; but it abruptly rejects the definitions of “negligence” and “ordinary care” set out in Pattern Jury Charge 65.01, which states: “Negligence” means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. “Ordinary care” means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. 5 A comparison of these definitions with those adopted by the majority, Op. at 267, reveals two significant differences. The majority has engrafted onto the standard definition of negligence a new requirement that the owner or occupier have actual or constructive knowledge of the unreasonable risk. Additionally, the majority totally omits the final phrase of the pattern jury charge’s definition of negligence: namely, the part holding an owner or occupier responsible for “doing that which a person of ordinary prudence would not have done under the same or similar circumstances.” The majority thus creates two overlapping exemptions from liability: one for defendants who are ignorant of conditions they created, and one for defendants who actively do imprudent things. Only by crafting these new exemptions is the majority able to uphold the trial court’s judgment in favor of Kroger. Before today’s opinion, this court had emphasized that premises liability cases were to be governed by the traditional definitions of “negligence” and “ordinary care.” See Corbin, 648 S.W.2d at 295 (“an invitee’s suit against a store owner is a simple negligence action”); Parker v. Highland Park, Inc., 565 S.W.2d 512, 519 (Tex.1978) (premises cases are more easily tried under ordinary negligence principles). These definitions, which limited an owner’s duty to keep the premises safe, determined liability based either on a premise defect or on a dangerous activity. See Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985). The majority’s ad hoc modification of the simple negligence charge sets the court on a dangerous path. The fundamental purpose of broad-form submission is “to simplify the jury’s chore.” Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass’n, 710 S.W.2d 551, 555 (Tex.1986). That aim is thwarted when the court continually tinkers with a charge, adding layer upon layer of new law to benefit litigants it favors. Chief Justice Pope, writing for a unanimous court, warned of this very danger: This court’s approval and adoption of the broad issue submission was not a signal to devise new or different instructions and definitions. We have learned from history that the growth and proliferation of both instructions and issues come one sentence at a time. For every thrust by the plaintiff for an instruction or an issue, there comes a parry by the defendant. Once begun, the instructive aids and balancing issues multiply. Judicial history teaches that broad issues and accepted definitions suffice and that a workable jury system demands strict adherence to simplicity in jury charges. Lemos v. Montez, 680 S.W.2d 798, 801 (Tex.1984). Regrettably, with today’s opin *272 ion, the danger against which Chief Justice Pope warned has come to pass. III. Though it determines that this case could have been submitted in broad form, the majority declines to consider whether the trial court’s failure to do so was reversible error. According to the majority, Keetch waived any error on this point because she “did not provide the trial judge with any indication that her complaint was with the trial court’s failure to submit in broad form.”' Op. at 267. The majority fails to mention that Keetch objected to the trial court’s granulated jury charge, and in conjunction with her objection presented the trial court with a broad-form negligence question which matched, verbatim, the broad-form negligence question the majority approves today. 6 The majority’s strict approach to preservation of error contrasts sharply with the approach it took less than three months ago when a defendant argued that it had preserved error in the jury charge. In State Department of Highways v. Payne, 838 S.W.2d 235 (Tex.1992), the majority recognized the difficulty of deciding whether to object or request “under the pressure of the courtroom,” and acknowledged that the procedure “has been further complicated by our adoption of broad form submission.” 838 S.W.2d at 240 . The majority’s discussion ended with the adoption of a general test: There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling. 838 S.W.2d at 241 . Applying this test, the court held that the State had preserved error in the charge by making an objection that was technically incorrect and by requesting an instruction that misplaced the burden of proof. Id. By almost any measure, Keetch did a better job of preserving error in the charge than the State did in Payne . Keetch’s objection was at least as clear as the State’s objection, which wrongly argued that the characterization of a culvert should have been a jury issue. Unlike the State, Keetch expressly mentioned the appropriate question in her objection, ensuring that the trial court understood what she was complaining about. Additionally, the question Keetch requested was perfectly correct, while the State’s objection misplaced the burden of proof. 7 *273 The majority cites only one case in support of its holding that error was waived: Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex. 1987). At 267. Notably, this is the main case relied upon in the dissenting opinion in Payne. 838 S.W.2d at 243 . Apparently, defendants alone are to enjoy the benefit of the liberal Payne standard for preservation of error; plaintiffs are still governed by the strict Wilgus v. Bond standard. Today the court only extends a dual standard of justice — an easy requirement for defendants, an inexplicably strict one for plaintiffs. This approach to justice is similar to that recently announced for the provision of mandamus relief in Walker v. Packer, 827 S.W.2d 833 (Tex.1992). Mandamus is readily available to deny discovery, but seldom accessible for those seeking discovery. See id. at 846 (Doggett, J., dissenting). I would hold that Keetch was entitled to submission of the charge she requested, and that she adequately preserved the trial court’s error for review. Thus, I would reverse the judgment of the court of appeals and remand this cause for a new trial. DOGGETT and GAMMAGE, JJ., join in this dissenting opinion. . Dozens of Texas courts have held that a plaintiff need not prove a store’s knowledge of a foreign substance on the floor if the store itself put the foreign substance on the floor. See, e.g., Houston Natl. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374, 376 (1948); Heritage Manor, Inc. v. Tidball, 724 S.W.2d 952, 955 (Tex.App.—San Antonio 1987, no writ); Texas Farm Products Co. v. Stock, 657 S.W.2d 494, 502 (Tex.App.—Tyler 1983, writ ref'd n.r.e.); Johnson v. Kroger, Inc., 623 S.W.2d 479, 480-81 (Tex.App.—Corpus Christi 1981, no writ); Furr's, Inc. v. Sigala, 608 S.W.2d 789, 790 (Tex.Civ.App.—El Paso 1980, no writ); H.E.B. Foods, Inc. v. Moore, 599 S.W.2d 126, 128 (Tex.Civ.App.—Corpus Christi 1980, no writ); Robledo v. Kroger Co., 597 S.W.2d 560, 560 (Tex.Civ.App.—Eastland 1980, writ ref'd); H.E.B. Grocery Co. v. Hawkins, 594 S.W,2d 187, 188 (Tex.Civ.App.—Corpus Christi 1980, no writ); Furr's, Inc. v. Quijano, 571 S.W.2d 343, 345 (Tex.Civ.App.—El Paso 1978, no writ); Furr's, Inc. v. Leyva, 553 S.W.2d 202, 203 (Tex.Civ.App.—El Paso 1977, writ ref'd n.r.e.); Whitfield v. Furr's, Inc., 502 S.W.2d 897, 898 (Tex.Civ.App.—El Paso 1973, no writ); H.E. Butt Grocery *269 Co. v. Tester, 498 S.W.2d 683, 685 (Tex.Civ.App.—Corpus Christi 1973, no writ); H.E.B. Food Stores v. Slaughter, 484 S.W.2d 794, 796 (Tex.Civ.App.—Corpus Christi 1972, writ dism’d); Foodway, Inc. v. Lopez, 480 S.W.2d 227, 228 (Tex.Civ.App.—El Paso 1972, no writ); H.E. Butt Grocery Co. v. Marroquin, 466 S.W.2d 837, 838 (Tex.Civ.App.—San Antonio 1971, no writ); H.E. Butt Grocery Co. v. Rodriguez, 441 S.W.2d 215 (Tex.Civ.App.—Corpus Christi 1969, no writ); H.E. Butt Grocery Co. v. Dillingham, 417 S.W.2d 373 (Tex.Civ.App.—Corpus Christi 1967, no writ); DuBose v. Parkdale Plaza Co., 408 S.W.2d 324, 326 (Tex.Civ.App.—Corpus Christi 1966, writ ref'd n.r.e.); Safeway Stores Inc. v. Bozeman, 394 S.W.2d at 537 ; H.E. Butt Grocery Co. v. Russell, 391 S.W.2d 571, 573 (Tex.Civ.App. —Waco 1965, writ ref'd n.r.e.); H.E. Butt Grocery Co. v. Kirkwood, 384 S.W.2d 790, 791 (Tex.Civ.App.—Corpus Christi 1964, no writ); Furr's Super Market, Inc., v. Jernigan, 380 S.W.2d 193, 194 (Tex.Civ.App.—Amarillo 1964, no writ); Great Atlantic & Pacific Tea Co. v. Giles, 354 S.W.2d 410, 412 (Tex.Civ.App.—Dallas 1962, writ ref'd n.r.e.); Sherwood v. Medical & Surgical Group, Inc., 334 S.W.2d 520, 521 (Tex. Civ.App. —Waco 1960, writ ref'd); O’Neal v. 1. Weingarten, Inc., 328 S.W.2d 793, 795 (Tex.Civ.App.—Beaumont 1959, writ ref'd n.r.e.); Del Camino Courts, Inc. v. Curtice, 323 S.W.2d 355 (Tex.Civ.App.—El Paso 1959, no writ); Beard v. Henke & Pillot, Inc., 314 S.W.2d 844, 845 (Tex.Civ.App.—Beaumont 1958, no writ); Furr’s Inc. v. Martin, 296 S.W.2d 607, 608 (Tex.Civ.App.—Eastland 1956, no writ); H.E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501, 502 (Tex.Civ.App.—San Antonio 1949, writ ref'd n.r.e.); F. W. Woolworth Co. v. Goldston, 155 S.W.2d 830, 832 (Tex.Civ.App.—Amarillo 1941, writ ref'd w.o.m.); Montford v. West Texas Hotel Co., 117 S.W.2d 811, 812 (Tex.Civ.App.—El Paso 1938, writ ref'd). . See Donald M. Zupanec, Annotation, Store or Business Premises Slip-and-Fall: Modern Status of Rules Requiring Showing of Notice of Proprietor of Transitory Interior Condition Allegedly Causing Plaintiff’s Fall, 85 A.L.R.3d 1000 , § 2(a) (1978); R.D. Hursh, Annotation, Liability of Proprietor of Store, Office, or Similar Business Premises for Fall on Floor Made Slippery by Washing or Cleaning, 63 A.L.R.2d 694 , § 5 (1959); R.D. Hursh, Annotation, Liability of Proprietor of Store, Office, or Similar Business Premises for Injury from Fall on Floor Made Slippery by Tracked-in or Spilled Water, Oil, Mud, Snow and the Like, 62 A.L.R.2d 6 , § 7(a) (1958); R.D. Hursh, Annotation, Liability of Proprietor of Store, Office, or Similar Business Premises for Injury from Fall on Steps Made Slippery by Tracked-in or Spilled Water, Oil, Mud, Snow and the Like, 62 A.L.R.2d 131 , § 7(a) (1958); R.D. Hursh, Annotation, Liability of Proprietor of Store, Office, or Similar Business Premises for Injury from Fall Due to Presence of Litter or Debris on Floor, 61 A.L.R.2d 6 , § 7(a) (1958); R.D. Hursh, Annotation, Liability of Proprietor of Store, Office, or Similar Business Premises for Injury from Fall Due to Presence of Obstacle Placed or Dropped on Floor, 61 A.L.R.2d 110 , § 7(a) (1958). . 62 A.L.R.2d at 31; 61 A.L.R.2d at 24 and 124. . See Comment to Pattern Jury Charge 66.04 (1990) (citing Seideneck only for the proposition that "[sjome conditions have been held, as a matter of law, not to create unreasonable risks”). . Pattern Jury Charge 65.02 sets out corresponding definitions describing a child's requisite degree of care. . Keetch objected as follows: Plaintiff objects to question No. 3 for the reason that the question inquires about whether Krogers was negligent in failing to remove the slick spot and thereby fails to submit the negligent activity of Krogers in conducting its spraying operation in its floral department in the area where customers could be expected to walk, and deprives plaintiff of the theory of Kroger’s active negligence and plaintiff requests that the court submit, and in connection with this objection, plaintiff has filed a requested issue in substantially correct form which is Question No. 3 on plaintiffs requested issues inquiring about whether the negligence of Kroger was the proximate cause of the occurrence in question without any condition and without any limitation to failure to remove the slippery spot. This objection complains that question 3 is too narrow; that the question should be submitted as Keetch suggested in her Question 3, which read: Did the negligence, if any, of those named below proximately cause the occurrence in question? Answer “Yes” or "No" for each of the following: A. The Kroger Company ANSWER: _ B. Linda Keetch ANSWER: _ This question is exactly the same, word-for-word, as the broad-form question approved in the majority opinion. At 266, n. 6. . The concurring opinion insists that Keetch’s objection “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." At 268. As indicated in note 6, supra, Keetch did object on the ground that the case should have been submitted as Keetch suggested in her Question 3, which was a proper broad-form question. Keetch’s objection did not expressly state that her requested question was proper because it was a "broad-form" question. A similar criticism, however, could have been directed at the State’s objection in Payne : the State's objection did not so much as hint that the charge was improper because it omitted the element of *273 Payne’s knowledge. In fact, I made that very argument in my dissenting opinion, 838 S.W.2d at 241 ; but the majority ignored that criticism, and held that the State had preserved error by making an incorrect objection. At 267. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9771257. Public record. Not legal advice.