Wal-Mart Stores, Inc. d/b/a Sam's Club, (APPELLANT/CROSS-APPELLEE) v. Henry Cantu, (APPELLEE/CROSS-APPELLANT)--Appeal from County Court at Law No 5 of Bexar County

No. 04-02-00094-CV
WALMART STORES, INC. d/b/a Sam's Club,
Appellant
v.
Henry CANTU,
Appellee
From the County Court at Law No. 5, Bexar County, Texas
Trial Court No. 260918
Honorable Timothy F. Johnson, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 21, 2003

REVERSED AND RENDERED

Appellee Henry Cantu filed suit against Appellant Wal-Mart, Inc. d/b/a Sam's Club to recover damages sustained when he was hit by a child riding a bicycle inside a Sam's Club store. Cantu pled under the theories of premises liability and a negligent activity. Following trial, Cantu opted to submit the case to the jury solely on the theory of negligent activity. The jury returned a verdict in favor of Cantu, finding $72,000 worth of damages. Wal-Mart filed a motion for judgment notwithstanding the verdict, and the trial judge reduced the damages to $34,000, rendering a total judgment of $43, 950.55 plus post-judgment interest. Wal-Mart now appeals this judgment, citing two issues. Cantu cross appeals in one issue, complaining of the trial court's reduction of the damages.

Background

On July 17, 1998, Appellant Henry Cantu and a friend entered a Sam's Club store as customers. Also shopping at the store were Mr. and Mrs. Serna and their ten-year-old son. The son removed a bicycle from the hook where it was hanging and began to ride the bicycle around the store. The boy rode the bicycle into Cantu's leg, injuring him. Following the incident, Cantu found an assistant manager, Mr. Dovalina, who accompanied him to the sporting goods area and took statements from both the Sernas and Cantu.

Cantu subsequently sued Wal-Mart under the theories of premises liability and negligent activity. The case was tried, and Cantu submitted the issue to the jury under the negligent activity theory rather than the theory of premises liability. The jury returned a verdict in favor of Cantu, awarding $73,000 in damages. Wal-Mart filed a motion for judgment notwithstanding the verdict, and the trial court reduced the amount of total damages to $43, 950.55 plus post-judgment interest. Wal-Mart now appeals, claiming the trial court erred in submitting the issue to the jury under the theory of negligent activity rather than premises liability, and under the theory of premises liability, the jury's finding of simple negligence does not support a recovery by Cantu. Wal-Mart also argues the trial court abused its discretion by including a spoliation instruction in the jury charge. Cantu cross appeals, claiming the trial court erred in remitting the jury's verdict as to future medical expenses.

Negligent Activity and Premises Liability

In its first issue, Wal-Mart argues that the trial court erroneously submitted the case to the jury under a negligent activity theory rather than a premises liability theory. Liability for injury on business premises may be found under either a premises condition theory or a negligent activity theory. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Wal-Mart v. Bazan, 966 S.W.2d 745, 746 (Tex. App.--San Antonio 1998, no pet.). Recovering under a negligent activity theory requires the plaintiff to have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity. Keetch, 845 S.W.2d at 264; Bazan, 966 S.W.2d at 746. A premises liability claim, on the other hand, is a claim that the premises itself is unsafe. Bazan, 966 S.W.2d at 746.

Wal-Mart contends none of the allegedly negligent activities asserted by Cantu actually caused injury to the appellee, thereby negating any claim of negligent activity. Cantu alleges that Wal-Mart was negligent in (1) failing to tie the bikes down; (2) leaving the bikes within reach of children; (3) failing to implement procedures to keep children from riding bikes in the store; and (4) failing to stop the child in question from riding the bike. There was no ongoing activity by any Wal-Mart employee at the time of the injury. Although Cantu may have been injured by a condition created by Wal-Mart's alleged negligence, he was not injured directly by any of its activities. Therefore, the trial court erred in submitting the case to the jury under the theory of negligent activity. The issue should have been submitted as a premises liability cause of action.

The elements of a premises liability cause of action were laid out in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). To be successful, a plaintiff raising a premises liability claim must show that (1) the owner/ operator had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the owner/ operator did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner/ operator's failure to use such care proximately caused the plaintiff's injuries. Id; Bazan, 966 S.W.2d at 746.

Because Cantu's cause of action is properly categorized as a premises liability issue, he is required to obtain findings on premises liability jury questions. Keetch, 845 S.W.2d at 266; Bazan, 966 S.W.2d at 747. The charge submitted to the jury in the present case did not include questions addressing the Corbin elements. Instead, the trial court instructed the jury on ordinary negligence. The charge defined both ordinary negligence and ordinary care without referring to the duties of owners or occupiers of premises. In addition, there is no instruction on unreasonable risk of harm or actual or constructive knowledge. Wal-Mart objected to the charge as submitted, arguing the case should be submitted under a premises liability instruction and suggesting a corrected version of the charge. The trial court did not submit the instruction requested by Wal-Mart, and Cantu permitted the negligence instruction to go to the jury without objection. Under the rule set out in Clayton W. Williams, Jr., Inc. v. Olivo, Cantu has waived the findings on his only viable claim, premises liability, and the court must render judgment in favor of Wal-Mart. 952 S.W.2d 523, 529 (Tex. 1997); Bazan, 966 S.W.2d at 747.

Because we affirm Wal-Mart's first issue, we do not need to address its second issue or the cross-appeal issue raised by Cantu. The judgment of the trial court is reversed and rendered in favor of Wal-Mart.

Paul W. Green, Justice