Wal-Mart Stores, Inc. v. Blanca Barrera, Individually and as Next Friend of Juan Andres Barrera--Appeal from 229th Judicial District Court of Starr County

Appellant

v.

Blanca BARRERA,

Individually and as Next Friend of Juan Andres Barrera,

Appellees

From the 229th Judicial District Court, Starr County, Texas

Trial Court No. DC-97-278

Honorable Alex W. Gabert, Judge Presiding

Opinion by: Paul W. Green, Justice

Dissenting opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: February 14, 2001

REVERSED AND RENDERED

In this premises liability case, the minor plaintiff, Juan Andres Barrera ("Barrera"), was injured as he attempted to dismount what he claims was a defectively assembled exercise bike displayed in the defendant's store. Wal-Mart Stores, Inc. ("Wal-Mart") appeals the trial court's judgment, rendered pursuant to a jury verdict, on grounds that Barrera presented no evidence of a dangerous premises condition or that Wal-Mart had notice of any dangerous condition. We reverse the trial court's judgment, and render judgment in favor of Wal-Mart.

Blanca Barrera took her two sons, Silvestre and Juan, to a Wal-Mart store to purchase groceries. As Blanca shopped for groceries, the boys went to the toy aisle. A short time later, Silvestre located Blanca and told her Juan had broken his foot. She followed Silvestre and found Juan sitting on a box in the middle of an aisle with his shoe in his hand. Juan was crying and showed Blanca his swollen foot. Juan told Blanca he got on an exercise bike and began pedaling and then, "as he stood, when he tried to brace himself the left-hand side let go of the rod and it hit him on the chest and the pedals start, the bike pedal just [kept] on going, the foot slipped and the pedal came around and hit his foot, his ankle, his foot," and "all the screws came out."

Juan testified he went to the exercise bikes and started using one with the handle bars and pedals connected by a pipe and hook, which caused the pedals to move when the handle bars are pushed back and forth. Juan said, while he was on the bike, the hook came loose and hit him on the chest. His foot then slipped off the pedal and the pedal hit his foot.

Blanca testified that, after obtaining medical help for Juan, she returned to the Wal-Mart store to report the accident. She spoke to Manager Domingo Perez, telling him the accident had occurred three hours ago. She told Perez the screws were still laying on the floor and getting into the middle of the aisle. She testified Perez picked up the screws and the bike pedal was on the floor.

Perez testified the bike was in good condition when he saw it. There were items on the carpet next to the bike which he identified as a soda cap, an end cap belonging to the next display, and a spring. Perez said Wal-Mart employees assembled and displayed the exercise bikes for the customers to try. He said the bikes are normally inspected after assembly and prior to displaying. Perez said that when he inspected the area to locate the loose parts mentioned by Blanca, he could not find any bolts or nuts. Further, he found both pedals in place on the bike. He admitted, however, the bike could have been fixed between the time of the accident and the time of the inspection.

Wal-Mart challenges the legal sufficiency of the evidence. In considering legal sufficiency points, a reviewing court considers only the evidence favorable to the decision of the trier of fact and disregards all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex. 1988). If more than a scintilla of evidence is offered on a fact, the evidence is legally sufficient. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

At the outset, we must address Barrera's contention that Wal-Mart waived its legal sufficiency challenge. Barrera claims Wal-Mart failed to specifically identify its complaint of no evidence of "premises defect" or "notice" to the trial court, and, therefore, it cannot do so on appeal. It is not necessary, however, to use specific words to preserve an appellate complaint. All that is required to preserve error is to timely bring the complaint to the attention of the trial court "with sufficient specificity to make the trial court aware of the complaint." Tex. R. App. P. 33.1 (a). The record shows Wal-Mart timely urged its complaint that "there is not a single shred of evidence in the record" of negligence by Wal-Mart or of a defect in the exercise bike. The statement is unambiguously a no evidence complaint. The error is preserved.

The elements of a premises liability claim are: (1) the premises owner or occupier has actual or constructive knowledge of a condition; (2) the condition poses an unreasonable risk of harm; (3) the premises owner or occupier failed to exercise reasonable care to reduce or eliminate the risk; and (4) the premises owner or occupier's failure to use such care proximately caused the plaintiff's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 1999). Wal-Mart claims the evidence is legally insufficient to support a jury finding on more than one of these elements.

Wal-Mart argues, even if the bike posed an unreasonable risk of harm, Barrera produced no evidence showing Wal-Mart had actual or constructive knowledge of the condition. In reply, Barrera argues Wal-Mart is charged with knowledge of the condition because its employee, by assembling the bike, created the condition. Moreover, Barrera says it is reasonable to infer the employee assembled the bike improperly because it came apart when Juan used it.

The supreme court has held that if an owner or operator creates the condition posing an unreasonable risk of harm, that fact could support an inference of knowledge. Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1995). However, the jury must still find the owner or occupier knew or should have known of the condition. Id. Further, making the inference as a matter of law is improper unless knowledge is uncontroverted. Id.

In this case, Wal-Mart denied knowing the exercise bike posed an unreasonable risk of harm. Consequently, knowledge is controverted. See id. The inference of knowledge does not apply, and Barrera is required to produce evidence demonstrating Wal-Mart had actual or constructive knowledge of the unreasonable risk of harm.

Barrera does not identify and we have been unable to find any evidence in the record tending to show Wal-Mart either knew or should have known of the condition of the exercise bike. Although the evidence that the handle bars and a pedal became disconnected or came off at the time of the accident may suggest the bike was improperly assembled, it does not address Wal-Mart's knowledge of the bike's condition. Moreover, the evidence of loose screws, springs, or other items found on the floor after the accident, none of which were linked to the exercise bike in question, likewise fails to support an inference that Wal-Mart knew or should have known that the bike posed an unreasonable risk of harm.

We conclude Barrera failed to produce more than a scintilla of evidence to support an essential element of her premises liability cause of action against Wal-Mart. Consequently, the trial court's judgment is reversed, and judgment is rendered in favor of Wal-Mart. Because of the disposition, we do not reach the other issues urged on appeal.

PAUL W. GREEN

Justice

DO NOT PUBLISH