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Torts No. 01-1148, 3/27/2003. Click here for the full text of this decision FACTS: Wal-Mart hired a plumbing company to install an eyewash machine in the mechanics bay of a Wal-Mart store. Brian Miller, an employee of the plumbing company, went to the Wal-Mart store with a co-worker to show him where to install the machine. A Wal-Mart employee escorted Miller and his co-worker to the door leading to a storeroom. In the storeroom, there was a stairway leading to the water lines and shut-off valve. After entering the storeroom, Miller noticed that Wal-Mart employees in the stockroom were unloading boxes from trucks and placing the boxes on the stairs. Miller led his co-worker up the stairs, and on the way up, Miller noticed the stairs were “kind of slippery or slick” and that boxes were stacked along the sides of the stairway’s middle section. Neither Miller nor his co-worker used the stairway’s handrail while ascending the stairs. After looking at the water lines and shut-off valve, Miller and his co-worker walked down the stairs. Miller’s co-worker, who walked in front, warned Miller “to be careful of the stairs because they were kind of slippery.” Miller testified that he held onto the stairway’s one handrail, but, about halfway down the stairs, Miller released the handrail to walk around the boxes stacked along the side. Miller’s foot then caught on one of the boxes, and he slipped on a step and fell. Miller’s co-worker did not see the fall; he only turned to see Miller on the ground when a box hit the back of his legs. Miller sued Wal-Mart under a premises defect theory. His petition alleges that Wal-Mart failed to make the stairway safe and failed to warn Miller about the dangerous condition – specifically, a slippery stairway with boxes stacked on it. The jury found Wal-Mart 70 percent negligent and Miller 30 percent negligent and awarded Miller damages and pre-judgment interest. The trial court granted Wal-Mart’s motion for judgment notwithstanding the verdict, which asserted, among other things, that Miller’s actual knowledge of the dangerous condition precluded his recovery. Miller appealed and argued that the trial court erred in granting a judgment notwithstanding the verdict because evidence supported each element of his premises defect claim. A divided court of appeals, sitting en banc, held that there was some evidence that Miller lacked knowledge of the dangerous condition and reversed the trial court’s judgment notwithstanding the verdict. HOLDING: Reversed and rendered. Miller alleges the combination of the slippery steps and the boxes on the stairs blocking his path and access to the handrail caused him to fall. In determining if there is some evidence of Miller’s actual knowledge about the dangerous condition to support the jury’s finding, the court of appeals relied on Miller’s testimony that he did not notice the stairway was slippery until he was halfway up the stairs, and he did not notice the boxes blocked the handrail until he was going down the stairs. Then, the court of appeals held that a reasonable inference from this “ambiguous evidence” is “that Miller did not comprehend the fact that the stairway was ‘unreasonably’ dangerous until the moment he fell . . . .” But the court of appeals’ inference is unreasonable in light of Miller’s undisputed testimony that, before he ascended the stairs, Miller noticed boxes “stacked along the sides” of the stairway’s middle section. Moreover, as he ascended the stairs, he noticed some of the stairs were “slippery or slick.” And, as Miller descended the stairs, he noticed the boxes obstructed his access to the handrail. He recognized all these factors – the very factors he alleges created a dangerous condition – before he fell on the stairs. The corroborating testimony of his co-worker further supports that Miller knew about the stairway’s dangerous condition; the co-worker similarly noticed the boxes stacked on the stairs before they went up, and he warned Miller about the slippery stairway when he led the way down. Thus, the uncontroverted evidence demonstrates that, prior to his fall, Miller perceived and thus had actual knowledge of the dangerous condition. Because Miller had actual knowledge of the alleged dangerous condition, Wal-Mart was relieved of any duty to warn or make safe the dangerous condition. Because no evidence exists to support the jury’s finding that Miller did not know about the dangerous condition, the trial court correctly rendered a judgment notwithstanding the verdict. OPINION: Per curiam.

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