Court of Appeals
Ninth District of Texas at Beaumont
DOLGENCORP OF TEXAS, INC. d/b/a DOLLAR GENERAL, Appellant
PETER LYND, Appellee
On Appeal from the 163rd District Court
Orange County, Texas
Trial Cause No. B-090145-C
Peter Lynd sued Dolgencorp of Texas, Inc. (Dollar General) for an injury he
sustained when he slipped and fell while shopping at a Dollar General store. A jury found
in Lynd‟s favor, awarded damages, and the trial court signed a judgment based on the
jury‟s verdict. Because there is legally insufficient evidence that Dollar General knew or
should have known of the slip hazard in its store before Lynd fell, we reverse and render
judgment that Lynd take nothing from Dollar General.
On the morning of the accident, Lynd was shopping for groceries when he slipped
in a liquid near the back of Dollar General‟s store. Shortly before Lynd fell, one of the
store‟s customers, Janice Overman, noticed a thick liquid on the floor, but she failed to
report that it was there to a Dollar General employee. As Overman checked-out, she saw
Lynd talking to a store employee, and she told Lynd that she had seen the liquid on the
floor where he fell. Although there were other customers in the store in addition to
Overman and Lynd, none of them were called as witnesses during Lynd‟s trial.
Kathy Overton, the manager and the only employee on duty at the time Lynd fell,
opened the store at nine o‟clock in the morning. Overton testified that before opening the
store, she walked down each of the store‟s aisles but saw nothing on the floor. Overton
was at the check-out counter when Lynd approached her and reported his fall. Overton
went to the back of the store, inspected where Lynd fell, and saw a pastel blue liquid on
the floor. Overton testified that she could not tell what the blue liquid was, nor did she
locate a container that it came from. At that point, Overton went to the stock room and
returned with caution signs. Lynd suggested where she should position one of the signs.
According to Overton, there were no warning cones in the area before Lynd fell.
Lynd testified that he was shopping with a shopping cart when he lost his footing,
slipped backwards, and fell, landing on his elbow, shoulder, and his head. Lynd explained
that a lady then offered to help him, told Lynd she had seen him fall, and she gave him a
piece of paper with her name on it.1 After Lynd reported his fall to Overton, he showed
Overton where he fell, and he saw her put a substance on the spill that looked like cat
litter. While observing Overton putting out the absorbent, Lynd backed into a rubber
tripod, which led him to ask: “„What‟s this for?‟” According to Lynd, Overton
responded: “„That‟s to keep people [f]rom stepping in the aisle way.‟” Lynd then told
Overton that “„[t]his should be in the aisle where the slippery stuff is, it shouldn‟t be on
the end section.‟” After that, according to Lynd, Overton put the sign where Lynd
suggested that it be placed.
Dollar General raises five issues in its appeal. The first three of Dollar General‟s
issues challenge whether the evidence is legally sufficient to support the jury‟s finding
that Dollar General was negligent. Issues four and five challenge the legal sufficiency of
the evidence supporting the jury‟s award for lost future earnings.
In a premises liability case, a business-invitee must plead and prove that the
(1) . . . actual or constructive knowledge of some condition on the premises
[by the owner/operator];
(2) that the condition posed an unreasonable risk of harm to [the plaintiff];
(3) that [the owner/operator] did not exercise reasonable care to reduce or to
eliminate the risk; and
(4) that [the owner/operator]‟s failure to use such care proximately caused
[the plaintiff]‟s personal injuries.
The woman Lynd identified as having offered to help him did not testify at the
Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983); see also Keetch v.
Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). In Lynd‟s case, the dispute between the
parties concerns the first element, actual or constructive knowledge of the slippery
In issues one through three, Dollar General argues that there is no evidence
proving that it had actual or constructive knowledge of the condition. Lynd responds and
argues that his testimony about backing up into a warning sign near the hazard after he
fell, along with his testimony that no signs were put up after the spill, together with other
testimony about how busy Overton was on the morning of the accident, constitutes
legally sufficient evidence allowing the jury to infer that Dollar General had actual or
constructive knowledge of the spill before Lynd fell.
When analyzing a challenge to the legal sufficiency of the evidence supporting a
jury‟s verdict, we view the evidence in the light most favorable to the prevailing party,
crediting favorable evidence if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d
802, 807, 827 (Tex. 2005). Since Lynd prevailed at trial, we view the evidence in the
light most favorable to his claim. See id. The evidence is legally sufficient if it enables
“reasonable and fair-minded people to reach the verdict under review.” Id. at 827.
Nevertheless, with respect to claims “supported only by meager circumstantial evidence,
the evidence does not rise above a scintilla (and thus is legally insufficient) if jurors
would have to guess whether a vital fact exists.” Id. at 813.
Lynd‟s argument relies heavily on whether reasonable and fair-minded people
could infer that the warning sign that he backed into after his accident was present before
he fell. However, a witness‟s noticing the presence of a moveable object, such as a sign,
after an incident, when the site has been accessed by at least one other person between
the time the incident occurred and the point the moveable object is noticed, and the
location is open to the public, is meager circumstantial evidence that could give rise to
any number of inferences, none more probable than another. See Lozano v. Lozano, 52
S.W.3d 141, 148 (Tex. 2001) (Phillips, C.J., concurring, joined by four justices) (citing
Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997)). Also, the inference
that Lynd argues the jury reached is based heavily on his testimony that he did not see
any of “those” warning signs put out after he fell, which he argues allowed the jury to
infer that the sign he backed into was present before he fell. However, Lynd‟s own
testimony contradicts this statement, as he also testified that Overton put out a warning
sign before he left. In this case, neither Lynd nor any other witness testified that the
warning sign that Lynd backed into after his accident was present in the area before the
accident. When asked by his attorney “[w]ere there any warning signs[,]” Lynd
responded, “[n]o, sir.” Additionally, Overman, a shopper who passed by the spill before
Lynd fell, did not testify that she saw any warning signs in the area. Nor, did the
testimony establish that Dollar General should have discovered the spill because there is
no evidence that would allow a determination to be made regarding how long the spill
was present before Lynd fell. See Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 936-38
(Tex. 1998). Finally, there was no testimony that any Dollar General employee put the
substance on the floor that caused Lynd to slip and fall. See Keetch, 845 S.W.2d at 266
(“Proof that the premises owner or occupier created a condition which poses an
unreasonable risk of harm may constitute circumstantial evidence that the owner or
occupier knew of the condition.”).
Based on the meager circumstantial evidence in the record, we conclude that Lynd
failed to show it was more probable than not that the warning sign was placed in the area
of the fall prior to the time that Lynd fell. While circumstantial evidence may establish an
essential fact, it must transcend more than mere suspicion. Lozano, 52 S.W.2d at 149.
When the circumstances that are proven are consistent with either of the two facts, and
nothing shows that one fact is more probable than the other, no fact can be inferred. Id. at
Lynd bore the burden to establish that it was more likely than not that Dollar
General was aware of the spill because one of its employees saw it, or that the spill
existed long enough that Dollar General had a reasonable opportunity to discover and
rectify it or to warn of its presence. After carefully reviewing the record, and because no
legally sufficient evidence shows that Dollar General knew about the spill, or that it
should have discovered the spill before Lynd fell, we reverse and render the judgment the
trial court was required to render and order that Lynd recover nothing. Tex. R. App. P.
43.2(c). Because the arguments raised by Dollar General in its fourth and fifth issues
would not result in greater relief, we need not address those issues. Tex. R. App. P. 47.1.
REVERSED AND RENDERED.
Submitted on October 6, 2011
Opinion Delivered January 12, 2012
Before Gaultney, Kreger, and Horton, JJ.
Peter Lynd testified before the jury as follows:
After -- the boss came by there and I showed her what had
happened, where I had fallen. And so she said step back and I stepped back.
She took some bags of, I believe it was cat litter or something similar. It
was right there by us and she opened them up and started putting it on
there. She was kind of nervous and I noticed she was throwing it all over
and I said, “You missed a few spots here and there.” I thought it was funny,
but it wasn‟t.
Anyway, she said come with me and I said just a minute, I stepped
on -- I was stepping on something in the aisle that inner section there, there
was rubber tripod in there and I had stepped on it and I asked her “What‟s
this for?” She says, “That‟s to keep people [f]rom stepping in the aisle
way.” I said, “This should be in the aisle where the slippery stuff is, it
shouldn‟t be on the end section.
I said, “You put it over there”, and anyway she puts it in front of it,
and she says come with me and she gave me a piece of paper to fill out, an
accident report, and she started back checking someone.
Mr. Lynd testified further:
How many of those warning signs were put out after you fell?
None. While I was there, but I didn‟t stay a long time.
Well, there was one that you had stepped on?
That was the only one that was there. I made her move that one in
the aisle where the spill was.
Only one employee was working at the store on the day of the accident. The
defendant did not produce the accident report in discovery; apparently the report was
missing. The employee testified:
One of the documents that I asked for and they swore and answered
was all accidents, injury or illness reports or documents concerning
the plaintiff, or the occurrence in question. That was asking for
accident reports. Do you see that?
Tell the folks on the jury what the Dollar General people swore
when I asked for that.
“There are no documents responsive to this request.”
Is that true?
Umm. To the best -In this case?
I did all the paperwork on Mr. Lynd and I sent it in.
I want to make sure we all understand that because I‟ve never seen it
because they say it never existed.
An accident report.
And Kathy, you‟re telling the folks on the jury that you did an
accident report on Pete Lynd‟s case.
Yes, sir, I did.
You sent it up to these guys.
Do you have any explanation about why there‟s swearing that it
I don‟t know.
The evidence was conflicting, and the jury was required to address issues of
credibility. As factfinder, the jury believed Mr. Lynd‟s testimony, and could reasonably
conclude the warning tripod was in the wrong place before the accident. A reasonable
person could conclude from the size of the spill, the testimony of another customer who
saw the spill before the fall, and the misplaced warning tripod, that the defendant knew or
should have known of the spill before the accident, and failed to clean it up simply
because there was only one employee at the store. The defense argued to the jury that if
they reached the percentage question, the jury should find Mr. Lynd was seventy-five
percent at fault. The jury found Mr. Lynd was twenty-five percent at fault, but that
finding is not challenged on appeal. Appellant does not challenge the factual sufficiency
of the evidence either, or ask for a new trial. Legally sufficient evidence established that
the defendant knew or should have known of the spill before Mr. Lynd encountered it.
On this record and on the issue raised, we should not set aside the unanimous jury verdict
and the judgment of the trial judge who heard the evidence. I respectfully dissent from
this Court‟s judgment.
January 12, 2012