Mass Marketing, Inc., d/b/a Super S Foods v. Josie Gaines--Appeal from 81st Judicial District Court of Frio County

DISSENTING OPINION
No. 04-00-00578-CV
Mass Marketing, Inc. d/b/a Super S Foods,
Appellant
v.
Josie Gaines,
Appellee
From the 81st Judicial District Court, Frio County, Texas
Trial Court No. 95-06-00161CVF
Honorable Olin B. Strauss, Judge Presiding

Opinion by: Catherine Stone, Justice

Dissenting opinion by: Tom Rickhoff, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: December 26, 2001

Because the "circumstantial evidence [] relied upon to prove constructive notice" did not establish "that it is more likely than not that the dangerous condition existed long enough to give [Super S Foods] a reasonable opportunity to discover the condition," I respectfully dissent from the majority's holding to the contrary. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (1998).

The evidence in the record reveals that none of the witnesses had seen or were aware of any grapes on the floor prior to the time Gaines fell. In addition, there is very little circumstantial evidence to show how long the grapes were actually on the floor. It is clear, from the record, that the grapes were neither smashed nor soiled with dirt, which tends to show that the grapes were probably not on the ground very long. Furthermore, even if the grapes had been damaged, the Texas Supreme Court has held that such evidence alone is insufficient to show how long the grapes had been on the floor. Gonzalez, 968 S.W.2d at 937 (citing H.E. Butt Grocery Co. v. Rodriguez, 441 S.W.2d 215, 217 (Tex. Civ. App. - Corpus Christi 1969, no writ)(holding that testimony that the grape on which plaintiff slipped was squashed and muddy, that the floor was dirty, and that pieces of paper were strewn around nearby was no evidence that the grape had been on the floor long enough to charge the store with notice)); see also H.E. Butt Grocery Store v. Hamilton, 632 S.W.2d 189, 191 (Tex. App. - Corpus Christi 1982, no writ)(holding that testimony that grapes were stepped on and that the juices from both red and green grapes had blended together was no evidence of how long the grapes were on the floor).

In summary, it was Gaines's burden to demonstrate that "it was more likely than not" that the grapes had been on the floor long enough to charge Super S Foods with notice. However as in Gonzalez, "the circumstantial evidence ... supports only the possibility that the dangerous condition existed long enough to give [Super S Foods] a reasonable opportunity to discover it." Gonzalez, 968 S.W.2d at 936. "This rule, while harsh and demanding on plaintiffs, is nevertheless well established and plaintiffs must always discharge the burden of proving that the dangerous condition was either known to the defendant or had existed for such a length of time that he should have known it." Id. at 938 (quoting Henderson v. Pipkin Grocery Co., 268 S.W.2d 703, 705 (Tex. Civ. App. - El Paso 1954, writ dism'd w.o.j.)). Accordingly, I find that there is insufficient evidence from which the jury could have inferred that the grapes were on the floor long enough for Super S Foods to have had a reasonable opportunity to discover them.

Tom Rickhoff, Justice

PUBLISH