Wal-Mart Stores, Inc. v. Paula Garza and Mauricio Garza--Appeal from 229th Judicial District Court of Duval County

CONCURRING OPINION
Appeal No. 04-99-00529-CV
WAL-MART STORES, INC.,
Appellant,
v.
Paula GARZA,
Appellee.
From the 229th Judicial District Court, Bexar County, Texas
Trial Court No. 16,596
Honorable Alex W. Gabert, Judge Presiding

Opinion by: Paul W. Green, Justice

Concurring opinion by: Phil Hardberger, Chief Justice, joined by Justice L pez

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and Filed: June 21, 2000

The result reached by the majority is odd and unjust. However, the majority opinion follows existing case law, so I am compelled to join it with this concurrence.

This case, simple in facts but artificially complex in archaic legal doctrine, illustrates the need for reform in the area of premises liability law. Here is what happened. A customer in a Wal-Mart store, Mrs. Garza, was hit in the head by a falling or mishandled box through no fault of her own. The box was being moved by a Wal-Mart employee. Mrs. Garza was injured - a perfect case of direct and simple causation. There is no contributory negligence, and no superseding or intervening cause. There are just the basic elements of negligence, proximate cause, and damages. All of this is correctly found by the jury and supported by the evidence. Specifically, the jury found that Wal-Mart's negligence proximately caused the injury in question and awarded damages to Mrs. Garza accordingly. As a result of the majority's decision, however, Mrs. Garza will receive no damages. The negligent party will not be held responsible for its negligence, and the injured party's damage award is reversed and rendered against her. The jury's verdict is nullified.

How does this happen? It happens because of a delicate and artificial framework of premises liability that has been outdated for years. This dilapidated framework recently added a super-structure of issue submission in which facts must be correctly placed under the correct shells of premises defect or negligent activity. Courts now tangle themselves in a web of determining whether an injury resulted from a condition or an activity. If the pleading or instruction is wrong, all is lost. Not even a backward glance is given to the essential unjustness of the result.

Why not simply ask the jury if the defendant's negligence proximately caused the injury and award damages, if any, accordingly. Are we so afraid of the jury that we will not even let them make this simple determination? Surely a jury is capable of determining who is wrong and who is right considering the circumstances existing at that time. What difference does it make whether the negligence causing the injury was a premises defect or a negligent activity? It doesn't. Defining types of negligent behavior may be intellectually interesting, but to people like Mrs. Garza, it only matters that a box hit her in the head and injured her. Her injury was not her fault. It was the fault of Wal-Mart. Do we need to go any further? Is justice enhanced, or denied, by a study of "what kind of negligence"?

I join in the majority's decision because it follows the law - not because it is right. Right would affirm the jury's findings and eliminate old unfair legalisms, as well as new shaky additions, that simply obscure the truth. I urge the Texas Supreme Court and the Texas legislature to revisit this dark section of the law.

The same archaic, problematic legalisms exist under the common law classification scheme for determining premises liability. Nearly forty years have passed since the United States Supreme Court rejected the common law classification scheme in admiralty law. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1958). Although the invitee-licensee-trespasser distinction may have provided a just disposition of disputes in England when the culture was deeply rooted to the land and tied to a heritage of feudalism, we must consider whether the distinctions do justice in an industrialized urban society. See id. at 630. As Justice Stewart stated in Kermarec:

In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards "imposing on owners and occupiers a single duty of reasonable care in all the circumstances."

Id. (footnote omitted). This movement or trend has led at least twelve jurisdictions to abandon the common law entirely in favor of a single duty of reasonable care although in one jurisdiction the distinctions were later reinstated by the legislature and another later restored the category of trespasser. See Carter v. Kinney, 896 S.W.2d 926, 929-30 n.3 (Mo. 1995); Heins v. Webster County, 552 N.W.2d 51, 54 (Neb. 1996)(listing jurisdictions); see generally Richard L. Ferrell, III, Emerging Trends in Premises Liability Law: Ohio's Latest Modification Continues to Chip Away at Bedrock Principles, 21 Ohio N.U.L. Rev. 1121, 1122 & n.8 (1995); Kathryn E. Eriksen, Premises Liability in Texas -- Time for a "Reasonable Change," 17 St. Mary's L.J. 417 (1986); Vitauts M. Gulbis, J.D., Modern Status of Rules Conditioning Landowner 's Liability Upon Status of Injured Party as Invitee, Licensee, or Trespasser, 24 A.L.R.4th 294 (1983). At least eleven other jurisdictions have abolished the invitee-licensee distinction while retaining the trespasser classification. Heins, 552 S.W.2d at 54 (listing jurisdictions). Two states have rejected the invitee-licensee distinction by statute. Ferrell, 21 Ohio N.U.L. Rev. at 1122 n.9. In fact, the invitee-licensee distinction has even been abrogated by statute in England. Jones v. Hansen, 867 P.2d 303, 307 (Kan. 1994)(citing Occupiers' Liability Act of 1957, 5 & 6 Eliz. II, c. 31).

When the Supreme Court of Nebraska abolished the invitee-licensee distinction in 1996, it noted that thirty-six states and the District of Columbia have reconsidered the common-law classifications. See Heins, 552 N.W.2d at 55. Twenty-three of those jurisdiction abolished either some or all of the categories, while only fourteen states expressly retained them. See id. Fourteen states continue to apply the common-law classifications without specifically addressing their continuing validity. See id. It would appear that Texas falls in this last category, mired in the past and applying a common law scheme that has been rejected by its originators and our highest court as unworkable.

"The principle of stare decisis was not meant to keep a stranglehold on developments which are responsive to new values, experiences and circumstances." Webb v. City and Borough of Sitka, 561 P.2d 731, 734 (Alaska 1977). The reasons for rejecting the outdated classification approach are sound. The system creates confusion and judicial waste, precluding the application of community standards by a jury. See Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97, 102 (D.C. Cir. 1972), cert. denied, 412 U.S. 939 (1973); Rowland v. Christian, 443 P.2d 561, 568 (Cal. 1968); Jones, 867 P.2d at 307. In a modern society, jurors are more likely to be landowners and are better able to understand the extent of and limitations on the protection a landowner can provide. Tab H. Keener, Can the Submission of a Premises Liability Case Be Simplified? 28 Tex. Tech. L. Rev. 1161, 1172 (1997). In Texas, the emphasis on broad-form submission also supports the adoption of a single duty of reasonable care. See id.; see also Tex. R. Civ. P. 277.

Another reason advanced for abolishing the common law categories is the rejection of the premise that land is predominant over life and that a landowner changes his conduct in relation to the nature of the entrant. Smith, 469 F.2d at 101. As Justice Peters reasoned when he started the modern trend in Rowland:

A man's life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. The common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty.

443 P.2d at 568.

Allocating the costs and risks of human injury is far too complex an equation to be decided solely upon the status of the entrant, particularly when the resolution of the status question "prevents the jury from ever determining the fundamental question [of] whether the defendant has acted reasonably in light of all the circumstances in a particular case." Mounsey v. Ellard, 297 N.E.2d 43, 51 (Mass. 1973); see also Smith, 469 F.2d at 102. The standard of "reasonable care under all the circumstances" enables a jury, as representatives of the community, to achieve an allocation of the costs of human injury which conforms to community standards of acceptable landowner behavior. See Smith, 469 F.2d at 102; Mounsey v. Ellard, 297 N.E.2d at 51. Landowners do not become insurers of their property under this new standard because foreseeability is still a factor, and the status of the entrant must be considered in determining the foreseeability of that entrant's presence. The single standard simply permits the jury "to determine what burdens of care are unreasonable in light of the relative expense and difficultly they impose on the owner or occupier as weighed against the probability and seriousness of the foreseeable harm to others." Mounsey v. Ellard, 297 N.E.2d at 53 (emphasis added). In my view, the common law classifications should be replaced with a rule of law that requires a landowner to act as a reasonable person in maintaining his property in a reasonably safe condition in view of all the circumstances, including the foreseeability of injury to the entrant, the likelihood and seriousness of potential injury in maintaining the condition, and the burden on the respective parties of avoiding the risk. See, e.g., Smith, 469 S.W.2d at 105-06; Webb, 561 P.2d at 733; Ann M. v. Pacific Plaza Shopping Center, 863 P.2d 207, 212 & n.5 (Cal. 1993); Rowland, 443 P.2d at 564.

The Texas legislature has debated whether the common law is sound in at least one area of our outdated premises liability law. See Tommy W. Gillaspie, Premises Liability, State Bar of Texas, Advanced Personal Injury Law Course R2, R-1-R-2 (1997)(discussing introduction of bill to limit liability for criminal acts of third party). It is time for Texas to stop tinkering with archaic feudal classifications and simplify premises liability law for the benefit of the trial judges, the juries, the landowners, and those injured on another's premises. "The judiciary gave birth to the classifications, and the judiciary can lay [them] to rest." Mariorenzi v. Joseph DiPonte, Inc., 333 A.2d 127 (R.I. 1975).

PHIL HARDBERGER,

CHIEF JUSTICE

PUBLISH