The Texas Supreme Court has reversed a Houston [14th] Court of Appeals decision overturning a take nothing judgment in favor of a Randall’s grocery store.
Albertsons, LLC d/b/a Randall’s; Albertsons Companies, LLC d/b/a Randall’s; Randall’s Food Markets, Inc. d/b/a Randall’s; and Randall’s Food & Drugs, L.P. d/b/a Randall’s v. Maryam Mohammadi (No. 23-0041; April 5, 2024) arose from a slip-and-fall in which an employee of a Wells Fargo bank located inside a Randall’s store fell when she stepped in a puddle of water on the floor between the bank and a store restroom. The trial court determined that plaintiff was an invitee, which meant that Randall’s owed a duty to protect plaintiff from an unreasonably dangerous condition of which Randall’s had constructive or actual knowledge. The evidence of any kind of knowledge was pretty scanty, so the trial court bifurcated the jury question, asking first whether Randall’s should have known of the danger and, if so, whether Randall’s knew of the danger. The jury answered no to the constructive knowledge question, so, in accordance with the court’s instructions, did not answer the actual knowledge question. The trial court thus rendered a take nothing judgment for Randall’s. Plaintiff appealed.
The court of appeals reversed. The majority’s analysis turned on its conclusion that the trial erred in the jury instruction by conditioning the actual knowledge question on an affirmative answer to the constructive knowledge question. The court reasoned that the jury might have been either confused by the charge or perhaps willing to find that Randall’s actually knew of the dangerous condition, dispensing with the need to find that it should have known about the condition. The evidence, primarily a store video showing the area of the accident and the testimony of two Randall’s employees, didn’t show anything on the floor but did show the Randall’s employees looking at the floor and one of them wiping it with a paper towel. It also showed a Randall’s employee wiping the bottom of a bag with a paper towel before depositing it in a return cart close to the area where the accident occurred. Based on this evidence, the majority reasoned that placing an open-wire return cart in the area between the bank and the restroom could have foreseeably created a dangerous condition if a leaking bag were placed in the cart. (But there was no evidence the bag on the video was actually leaking.) Consequently, the court sent the case back for another jury trial.
Chief Justice Christopher dissented, bluntly asserting that the “majority’s analysis is wrong (and the same point is inadequately argued by [plaintiff] in her brief.” As Justice Christopher points out, “actual knowledge” is a higher standard than “constructive knowledge,” and that both the trial court and Randall’s “believed that it would be logically impossible for a jury, under the facts of this case, to answer ‘No’ to ‘should have known’ while answering ‘Yes’ to ‘know.’” Moreover, the “majority cannot cite to a single case where a premises owner actually knew about a dangerous condition but somehow should not have known about the condition. Nor can the majority cite a case where a premises owner has actual knowledge of a dangerous condition but somehow does not have constructive of the dangerous condition too. Those situations are illogical. Even if such a factual situation could be imagined, there are no such facts in this case.” To make matters worse, the majority’s analysis depended on evidence that didn’t exist—proof of the leaking bag—and misinterpreted a 1983 SCOTX case finding that knowledge could be imputed to a premises owner that customers might drop grapes on the floor when selecting them from a self-service display. But in that case, the grocery store put non-slip mats in front of the display, so the Court determined that the premises owner foresaw the danger that actually occurred. No such evidence existed here.
In a per curiam opinion, SCOTX reversed, holding that the trial court’s failure to submit actual-knowledge theory of premises liability to the jury as a separate question, even if it should have been submitted that way, constituted harmless error. Beginning with the assumption (without deciding) that Plaintiff was an invitee, the court restated the test requiring the premises owner to have actual-knowledge or constructive knowledge of a dangerous condition on the premises. It then recited the approved jury instruction for premises liability to an invitee, in which the knowledge element of the instruction incorporates both actual and constructive knowledge (“knew or reasonably should have known”). A finding of either form of knowledge is sufficient to meet the liability standard. In this case, as explained above, the trial court bifurcated the question and made the jury’s consideration of actual knowledge contingent on finding constructive knowledge. Whether or not that approach was proper, the Court went on, it did not “probably cause the rendition of an improper judgment.”
In this case, there was no legally sufficient evidence supporting Plaintiff’s contention that Randall’s had actual knowledge of the wet floor. There was some evidence, however, that Randall’s knew of the danger posed by leaking packages in a grocery court. But while this evidence may support an antecedent condition, it does not establish that Randall’s had actual knowledge of the relevant dangerous condition, the wet floor. And to the extent that this evidence might support a jury finding that Randall’s should have known of the wet floor, the jury rejected this theory in its verdict on constructive knowledge. Thus no reasonable juror could have found (or did find) that Randall’s had constructive knowledge of the condition, and any error in the charge was harmless.
This case is of interest, not only in its rejection of the court of appeals’ theory of the case, but for SCOTX’s continuing move away from the “exceptional case” approach of Corbin v. Safeway Stores, 648 S.W.2d 292 (Tex. 1983), a “Justice for Sale” vestige relied upon by the court of appeals in this case. In Corbin, SCOTX held that a premises owner’s actual knowledge of an antecedent condition (in this case a display of grapes above a linoleum floor) could be the basis for liability if a customer slipped on grapes that fell from the display. The Corbin holding further rested on the grocery store’s admission that it knew grapes fell on the floor and that customers could slip on them, but didn’t do anything about it. Here the Court seems to have considered Corbin a one-off that did not make good law in premises cases generally. Instead, courts should look to Brookshire Grocery Co. v. Taylor, 222 S.W.3d 407 (Tex. 2006) for the proper standard.
