X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
No. 12-02-00115-CV, 7/9/2003. Torts Click here for the full text of this decision FACTS: Plainview Motels Inc. d/b/a Surplus Sales appeals the trial court’s judgment entered in favor of Philip Reynolds and Lucy Reynolds, individually and as next friend and natural guardian of Dillon Reynolds (collectively “Reynolds”). HOLDING: Affirmed in part, reversed and rendered in part. To successfully prosecute a cause of action for premises defect, Reynolds was required to prove that 1. the defendant was an owner or occupier of the premises; 2. a condition on the premises posed an unreasonable risk of harm; 3. the defendant knew or reasonably should have known of the danger; 4. the defendant failed to exercise reasonable care to reduce or eliminate the risk of harm; and 5. the defendant’s breach proximately caused the plaintiff’s injuries. Surplus Sales does not contest that it was the owner or occupier of the premises in question. A condition poses an unreasonable risk of harm for premises defect purposes when there is a “sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.” Foreseeability does not require that the exact sequence of events that produced an injury be foreseeable. Instead, only the general danger must be foreseeable. As a matter of law, the mere fact that a store has a customer sampling display cannot, without more, be evidence of a condition on the premises that poses an unreasonable risk of harm. H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218 (Tex. 1999). In reaching its decision, the court in Resendezdistinguished that case from its previous decision in Corbin v. Safeway Stores Inc., 648 S.W.2d 292 (Tex. 1983), noting that in Corbin, it stated that the self-service grape bin in conjunction with the absence of any protective covering on the store’s green linoleum tile floor posed an unusually high risk of customer falls resulting from grapes dropped on the floor. Comparing Resendezand Corbin, it is apparent that the question of whether a self-service display is unreasonably dangerous can only be answered by considering the nature of the display in light of, but not limited to, its surroundings. In the case at hand, Surplus Sales’ display consisted of multiple mirrors stacked vertically, one against the other and leaning at a slight angle against a two-by-four support post. Although the total number of mirrors was unclear from the record, their combined weight was significant, which is apparent from the fact that it was sufficient to trap an adult male and ultimately, required the strength of between three and four adults to be removed. The nature of Surplus Sales’ business is that customers will view items in one of Surplus Sales’ warehouses, help themselves to such items as they may desire, and transport such items to the checkout area of the facility. Surplus Sales argues that the testimony of Barry Lee Richard (“Richard”), a certified safety professional and consultant, who testified that the manner in which the mirrors were displayed was “stable” and “not precarious[,]” is the only evidence related to this element. The court disagrees. The jury could reasonably determine that a group of 30-pound mirrors leaning against a support column could potentially fall. Moreover, given the nature of Surplus Sales’ business, it is a reasonable deduction from the evidence that, no matter how stable the stack is, a customer desiring a mirror deep within the stack could seek to move some of the mirrors around to look at others or remove a mirror that strikes his fancy. Considering that a customer could reasonably be expected to move any number of mirrors while examining them, the jury could further surmise that the potential for prolonged stability of the display without upset was, at best, fleeting and that the notion that the display was stable so long as it remained undisturbed was contrary to the nature of Surplus Sales’ business. Professional safety management consultant Wayne Seelbach (“Seelbach”) testified that the manner in which the mirrors in question were displayed was hazardous and not in accordance with industry standards. Seelbach further testified that the mirrors should have been displayed in bins with an upright support on each side of the stack, with such bins placed perpendicular to the aisle, rather than in the aisle. Finally, the record reflects that Surplus Sales had such storage bins on the premises, but did not use them to store mirrors. Similar to the absence of a protective floor covering in Corbin, Surplus Sales’ failure to utilize a storage bin to display the mirrors in question further supports the jury’s determination that the display in the instant case was unreasonably dangerous. Therefore, considering the totality of the circumstances surrounding the self-service display in the instant case, the court concludes that there was evidence to support the jury’s finding. OPINION:Griffith, J; Worthen, C.J., Griffith and Ramey, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.