Stacy Richter v. Wal-Mart Stores, Inc. and Mark Miller--Appeal from 198th Judicial District Court of Kerr County

MEMORANDUM OPINION
No. 04-03-00799-CV
Stacy RICHTER,
Appellant
v.
WALMART, INC. and Mark Miller,
Appellees
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. 02-24-B
Honorable Emil Karl Prohl, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: August 18, 2004

AFFIRMED

Stacy Richter slipped and fell on a crushed tomato in the produce aisle at a Wal-Mart store in Kerrville, Texas. Richter sued Wal-Mart and its local store manager, Mark Miller, for negligence, alleging: (1) the produce display in the area where she fell posed an unreasonable risk of harm and caused her injuries; and (2) the crushed tomato on the floor of the produce aisle posed an unreasonable risk of harm and caused her injuries. Wal-Mart moved for summary judgment. The trial court granted summary judgment in favor of Wal-Mart without stating the grounds for judgment. After the trial court granted summary judgment, Richter filed an amended petition alleging a fraud claim against both defendants and reasserted her negligence claims against both defendants. In response, Wal-Mart filed a motion to strike Richter's first amended petition, and defendant Mark Miller filed special exceptions to Richter's original petition, and a motion to dismiss. The trial court subsequently granted Miller's special exceptions based on Richter's original petition and further granted his motion to dismiss. (1)

Richter now seeks a new trial claiming that there is more than sufficient evidence to raise fact issues on all of her causes of action. We affirm the trial court's judgment.

Jurisdiction

Richter initially questions whether there is a final, appealable judgment in this case because she asserts it is unclear whether the trial court's summary judgment order disposes of all of her causes of action against Wal-Mart. See Lehmann v. Har Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Richter contends the summary judgment order applies only to the "slip and fall" issue and is not specific as to the other issues. Further, Richter argues that her amended petition, which was filed after the trial court granted summary judgment, may still be alive and should be considered.

We disagree. After thoroughly reviewing the record, this court is of the opinion that the court's order does dispose of all of Richter's claims against Wal-Mart. Richter's original petition asserts a premises defect cause of action against Wal-Mart, claiming: (1) the produce display posed an unreasonable risk of harm and caused her injuries; and (2) the crushed tomato on the floor of the produce area posed an unreasonable risk of harm and caused her injuries. Wal-Mart's traditional and no evidence summary judgment motions assert that Richter presented no genuine issue of material fact or no evidence that the produce display was a cause in fact of her injuries or that Wal-Mart had either actual or constructive knowledge of the tomato on the floor. Because Wal-Mart's summary judgment motions challenged all of Richter's claims, we cannot say the trial court's ruling failed to address all of Richter's claims against Wal-Mart. Further, Richter's amended petition was not before the trial court when it granted Wal-Mart's motion for summary judgment; therefore, the amended petition is not reviewable as Richter claims.

Premises Liability

In her second issue, Richter contends that there is more than sufficient evidence to establish genuine material fact issues on all three of her causes of action: premises liability, design defects, and assumption of a duty or responsibility.

Summary Judgment

Under traditional summary judgment standards, we must adhere to these well-established guidelines: (1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in favor of the non-movant. American Tobacco Co., Inc., v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co., 690 S .W.2d 546, 548-49 (Tex. 1985). "Summary judgment is proper if the defendant disproves at least one element of each of the plaintiff's claims." American Tobacco Co., 951 S.W.2d at 425; Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476-77 (Tex. 1995).

We apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet. denied). We look at the evidence in the light most favorable to the respondent against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Id. A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id.

When the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the judgment if any of the theories raised in the motion for summary judgment are meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

Discussion

Wal-Mart had a duty to exercise reasonable care to protect Richter, an invitee, from dangerous conditions in the store that were known or reasonably discoverable, but Wal-Mart was not an insurer of Richter's safety. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). In order to prevail on her premises liability claim against Wal-Mart, Richter needed to prove: (1) Wal-Mart had actual or constructive knowledge of the alleged defective produce display (2) or the tomato on the floor; (2) the condition of the display or the actual tomato on the floor posed an unreasonable risk of harm; (3) Wal-Mart did not exercise reasonable care to reduce or eliminate the risk; and (4) Wal-Mart's failure to use such care proximately caused Richter's injuries. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).

Even if we assume that the display and the tomato on the floor in the produce section did pose unreasonable risks of harm, we must address whether Wal-Mart had actual or constructive notice of them. In order to prove actual or constructive notice, Richter must establish that (1) Wal-Mart placed the tomato on the floor, (2) Wal-Mart actually knew the display was defective or knew that the tomato was on the floor, or (3) it is more likely than not that the defective display or the fallen tomato existed long enough to give Wal-Mart a reasonable opportunity to discover it. See Reece, 81 S.W.3d at 814.

In analyzing constructive notice under the third prong, we look to the "time notice rule" for guidance. The "time-notice rule" indicates that temporal evidence is the best method to determine if a store owner had a reasonable opportunity to discover and remedy the alleged dangerous condition. Id. at 816. "Without some temporal evidence, there is no basis upon which the factfinder can reasonably assess the opportunity the premises owner had to discover the dangerous condition." Id. In order to determine what constitutes a reasonable time, we may look at employee proximity in relation to how conspicuous the condition is. Id. "But in either case, there must be some proof of how long the hazard was there before liability can be imposed on the premises owner for failing to discover and rectify, or warn of, the dangerous condition." Id.

After reviewing the record, we have not found any evidence suggesting that Wal-Mart either placed the tomato on the floor, knew it was on the floor, knew that the display was defective as Richter claims, or had a reasonable opportunity to discover these alleged dangerous conditions. Richter described the fallen tomato as bright red lying against a white floor, on a main aisle, and located within view of the bakery, the fish market area, and checker number one. During Richter's deposition, however, she explained that she did not see any Wal-Mart employees in the produce section during the short time she was in there up until her fall. The following excerpt from her deposition describes her temporal knowledge regarding the tomato and the alleged defective display:

Q. . . . Do you know anybody with any information as to how long the tomato was on the floor?

A. No, ma'am.

Q. You've already told me that you don't know how long it was on the floor?

A. Prior to me entering, no, ma'am, I do not.

Q. And do you know how it got there?

A. No, ma'am, I do not.

Thus, Richter could not provide any temporal evidence supporting her assertion that there was a reasonable opportunity for Wal-Mart to discover the fallen tomato. Although Richter claims the tomato appeared to be broken apart and flattened suggesting it must have been there a while, one can just as easily infer that someone just ran over the tomato right before Richter entered the produce area. See Gonzalez, 968 S.W.2d at 937 (holding that dirt and cart tracks in macaroni salad are no evidence of the length of time the macaroni had been on the floor since one can infer that the macaroni had just been dropped on the floor and was quickly contaminated by customers). Richter herself stated that she had been in the produce department for less than five minutes before she fell, which implies that someone could have just rolled over the tomato with their cart.

Richter also argues that the fact Wal-Mart had two security cameras in the produce department proves there was a reasonable opportunity to discover the problems. She further contends that Wal-Mart assumed the duty of providing security cameras for the benefit of their customers and claims that the cameras provided a false sense of security. This argument is unfounded since Miller stated in his deposition that the security cameras are designed for loss prevention and are primarily used for cash registers and store entrances and exits and not focused on fallen produce. In addition, Richter admitted in her deposition that she did not have any personal knowledge regarding the security cameras or their intended use. Therefore, there is no evidence that Wal-Mart claimed the security cameras provided the type of security Richter postulates they should provide. Nor is there any evidence that a Wal-Mart employee saw the tomato on the floor or observed the alleged defectiveness of the display via the security cameras.

Discovery Issue

In her third issue, Richter argues that the trial court erred by not permitting additional discovery before granting Wal-Mart's motion for summary judgment because she would be "unfairly prejudiced without such additional discovery." Richter, however, does not provide the court with a substantive analysis of her legal contention; she fails to explain how she was "unfairly prejudiced" by the trial court's discovery ruling. Because the Rules of Appellate Procedure require an appellant's brief to contain a clear and concise argument for the contentions made, see Tex. R. App. P. 38.1(h), we hold Richter's third issue is inadequately briefed and presents nothing for our review.

Conclusion

Contrary to Richter's claim, we hold the order granting summary judgment did dispose of all of her causes of actions. Further, after viewing the evidence in the light most favorable to Richter, and disregarding all contrary evidence and inferences, we affirm the trial court's order granting summary judgment in favor of Wal-Mart. We likewise affirm the order of dismissal as to Miller. Finally, we overrule Richter's discovery issue since she failed to explain adequately how she was unfairly prejudiced by the trial court's ruling. We affirm the judgment of the trial court.

Catherine Stone, Justice

1. Richter argues the decision to dismiss Miller should be reversed; however, because we determine the trial court properly granted summary judgment in favor of Wal-Mart, the dismissal as to Miller was also proper. Wal-Mart is liable for Miller's alleged negligence under the doctrine of respondeat superior since he was acting within the scope of his employment as the store manager of Wal-Mart. See Cortez ex rel. Estate of Puentes v. HCCI-San Antonio, Inc., 131 S.W.3d 113, 121-22 (Tex. App.--San Antonio 2004, pet. filed). Since the court properly determined that Richter failed to establish Wal-Mart's negligence, Miller likewise is not liable.

 

2. Richter's claim regarding the condition and allegedly defective design of the tomato display is included within her premises liability claim since she claims it created an unreasonable risk of harm within Wal-Mart. See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296-98 (Tex. 1983); H.E. Butt Grocery Co. v. Resendez, 988 SW.2d 218, 219 (Tex. 1999).