Wal-Mart Stores, Inc. A/K/A Wal-Mart Super Center 3286 v. Kimberly G. Sparkman ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00355-CV
WAL-MART STORES, INC. A/K/A APPELLANT
WAL-MART SUPER CENTER
#3286
V.
KIMBERLY G. SPARKMAN APPELLEE
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2010-50116-367
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MEMORANDUM OPINION 1
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In this slip-and-fall case, appellant Wal-Mart Stores, Inc. a/k/a Wal-Mart
Super Center #3286 appeals the trial court’s final judgment in favor of appellee
Kimberly G. Sparkman. We affirm.
1
See Tex. R. App. P. 47.4.
Background
On a rainy day in February 2010, Sparkman slipped and fell as she
entered the Hickory Creek Wal-Mart in Denton County, Texas. Wal-Mart had
implemented its inclement weather guidelines that day by placing two orange
caution signs in the entryway. Wal-Mart employees had also swept the floor, but
they had used a dust mop instead of a “dry mop.” The dust mop spread the
water around instead of absorbing it like a dry mop would. Wal-Mart’s high-gloss
entryway—known as a “wet look” floor—made it difficult to spot any accumulated
water. Sparkman claims not to have seen the water or the warning signs.
When Sparkman stepped off the entry mat and onto the concrete floor, her
foot slid out from underneath her. The fall shattered her femur. Sparkman sued
Wal-Mart for negligently maintaining its store. A jury found Wal-Mart negligent
and awarded Sparkman $510,820.60 in damages plus interest and costs. Wal-
Mart then filed this appeal.
Discussion
Wal-Mart raises three challenges to the sufficiency of the evidence.
Although Wal-Mart characterizes its arguments as matter-of-law challenges, it did
not have the burden of proof at trial; thus, we review its complaints as no-
evidence challenges. We may sustain a legal sufficiency challenge only when
(1) the record discloses a complete absence of evidence of a vital fact; (2) the
court is barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact
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is no more than a mere scintilla; or (4) the evidence establishes conclusively the
opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328,
334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No
Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–
63 (1960). In determining whether there is legally sufficient evidence to support
the finding under review, we must consider evidence favorable to the finding if a
reasonable factfinder could and disregard evidence contrary to the finding unless
a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827
(Tex. 2005).
To prevail on her premises-liability claim as set forth in the jury charge,
Sparkman had to prove that (1) Wal-Mart had actual or constructive knowledge
of the wet floor, (2) the wet floor posed an unreasonable risk of harm, and
(3) Wal-Mart failed to use ordinary care to reduce or eliminate the unreasonable
risk of harm by failing to adequately warn her of the wet floor and by failing to
make the wet floor safe. See LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex.
2006); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). In
three issues, Wal-Mart challenges the sufficiency of the evidence to prove all
three.
I. The adequacy of Wal-Mart’s warning
In its first issue, Wal-Mart argues that because the evidence shows it
placed warning signs in the entryway, Sparkman failed to prove the lack of an
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adequate warning. Premises owners can satisfy their duty to invitees by
adequately warning invitees of potentially dangerous conditions. State v.
Williams, 940 S.W.2d 583, 584 (Tex. 1996). An adequate warning is clearly
visible and communicates the specific condition that invitees face. TXI
Operations, L.P. v. Perry, 278 S.W.3d 763, 765 (Tex. 2009) (holding that 15-mph
street sign failed to warn plaintiff of specific danger of pothole).
Wal-Mart claims that under Texas law, placing warning signs by a danger
satisfies its duty to warn customers, and it cites a number of cases that it argues
support that proposition. See Brooks v. PRH Invs., Inc., 303 S.W.3d 920, 922
(Tex. App.—Texarkana 2010, no pet.); Tucker v. Cajun Operating Co., No. 11-
07-00026-CV, 2008 WL 802985, at *2 (Tex. App.—Eastland Mar. 27, 2008, no
pet.) (mem. op.); Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 370 (Tex.
App.—Houston [14th Dist.] 2002, pet. denied). However, none of these cases
indicate that such a bright-line rule exists. “Negligence is commonly a question
of fact unless the evidence establishes a complete absence of negligence as a
matter of law.” TXI Operations, 278 S.W.3d at 765. The cases cited by Wal-Mart
note a number of circumstances bearing on the determination of whether a
premises owner has adequately warned of a danger. See Brooks, 303 S.W.3d at
922 (noting that restaurant told plaintiff to “be careful, the floor may be a little
damp”); Tucker, 2008 WL 802985, at *2 (noting that yellow caution sign was
placed where plaintiff was forced to walk around it); Bill’s Dollar Store, 77 S.W.3d
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at 370 (noting that employee pointed to a spilled soda and told customer “to
watch the wet spot”).
Wal-Mart had placed two warning cones in the entryway. Sparkman’s
expert witness testified that the signs were “very small, very short, [and] hard to
see” and opined that Wal-Mart should have used taller signs that would better
attract customers’ attention and should have placed them closer to the doors.
Sparkman testified that she did not remember seeing the cones before she fell. 2
The Wal-Mart manager testified that the store had mats on the floor, but no more
than it usually did, nor was there anything else present that might alert customers
to the wet floor. Viewing the evidence in the light most favorable to the jury’s
verdict, we hold that the evidence is sufficient to support the jury’s finding that the
warning cones were not adequate in this circumstance to warn invitees of the
slippery floor. See Dimmitt v. Brookshire Grocery Co., No. 11-12-00129-CV,
2014 WL 2957438, *4–5 (Tex. App.—Eastland June 26, 2014, pet. filed) (mem.
op.) (holding, in summary judgment appeal, that “the evidence does not
conclusively show that a ‘wet floor’ cone placed some twenty feet away from
where [plaintiff] fell adequately warned her about excess water left by a defective
scrubber”); cf. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 771 n.32 (Tex.
2010) (“We have recognized that owners must adequately warn or make
2
Wal-Mart argues that Sparkman’s “subjective appreciation” of the warning
cones is irrelevant, but it also acknowledged in its reply brief that whether
Sparkman saw the cones was a “factor which can demonstrate [their] adequacy.”
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safe, . . . and in some circumstances no warning can adequately substitute for
taking reasonably prudent steps to make the premises safe.”). We overrule Wal-
Mart’s first issue.
II. The dangerousness of the condition
In its second issue, Wal-Mart argues that, as a matter of law, 3 it owed no
duty to Sparkman because the wet entryway was not an unreasonably
dangerous condition. Wal-Mart relies on Scott & White Memorial Hospital v. Fair,
310 S.W.3d 411 (Tex. 2010). Scott & White held that “naturally occurring ice that
accumulates without the assistance or involvement of unnatural contact is not an
unreasonably dangerous condition.” Id. at 414. The “naturally occurring” rule
has been limited to outdoor accumulations without human intervention. See,
e.g., Callahan v. Vitesse Aviation Servs., 397 S.W.3d 342, 352–54 (Tex. App.—
Dallas 2013, no pet.) (applying Scott & White when plaintiff slipped on ice while
walking outdoors); Lough v. Pack, No. 02-12-00336-CV, 2013 WL 1149524, at *2
(Tex. App.—Fort Worth Mar. 21, 2013, no pet.) (mem. op.) (applying Scott &
White when plaintiff slipped on porch). This case involves rainwater, not ice or
snow, on an indoor concrete floor treated with a shiny sealant. Texas courts
have consistently found that indoor wet floors can pose an unreasonably
dangerous condition. See, e.g., City of San Antonio v. Rodriguez, 931 S.W.2d
535, 536 (Tex. 1996) (noting that city was required to prevent water leaking
3
Whether a landowner owes a duty to an invitee in the first place is a
question of law for the court to decide. TXI Operations, 278 S.W.3d at 765.
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through roof from causing a dangerous condition by dripping onto indoor
basketball court); Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 537–38 (Tex.
1975) (holding wet floor, caused by customer foot traffic and windblown water,
may be an unreasonably dangerous condition); Dimmitt, 2014 WL 2957438, at
*4–5 (implying puddles left from floor cleaner are an unreasonably dangerous
condition); Duprie v. Dolgencorp of Tex., 59 S.W.3d 196, 198–99 (Tex. App.—
Beaumont 2000, pet. denied) (implying wet floors caused by tracked-in water are
an unreasonably dangerous condition).
Here, it is undisputed that Sparkman slipped on a wet floor inside the
store, which was caused by rain––not ice or snow––that had made its way inside
the store, either by wind or by being tracked in by customers. This is not a
natural location nor is it a natural manner for rain to accumulate. Further, Scott &
White reasoned that naturally accumulated ice or snow is not unreasonably
dangerous because, like with mud accumulation, accidents are “likely to occur
regardless of precautions taken by landowners, and invitees are often better
positioned to avoid the dangers associated with muddy walkways.” 310 S.W.3d
at 413. In this case, the sealant used by Wal-Mart on its store’s floor caused the
floor to be glossy and slippery making it more difficult to see accumulated water.
Without the knowledge of the store’s flooring, the customer is not in a better
position than Wal-Mart to protect herself from accidents on the floor. We
therefore decline to extend the rule in Scott & White to this case.
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Wal-Mart also implies that its wet floor was not an unreasonably
dangerous condition because it was not responsible for the rainfall. Wal-Mart is
responsible for protecting its customers from dangerous conditions of which it
knew or should have known. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97,
101 (Tex. 2000). This duty is not dependent on Wal-Mart’s being the source of
the danger. See Rodriguez, 931 S.W.2d at 536 (noting that city was required to
prevent dangerous conditions caused by water leaking through roof). We
therefore overrule Wal-Mart’s second issue.
III. Wal-Mart’s actual or constructive knowledge
In its third issue, Wal-Mart argues that the evidence does not show that it
had actual or constructive knowledge of the wet entryway. To prove the
premises owner’s knowledge, the plaintiff can show either that (1) the owner
placed the substance on the floor, (2) the owner actually knew that the substance
was on the floor, or (3) it is more likely than not that the condition existed long
enough to give the owner a reasonable opportunity to discover it. Wal-Mart
Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).
Wal-Mart argues that because an employee had recently mopped the floor,
there is no evidence that it knew the floor continued to pose a danger. However,
there was evidence that the employee’s use of the dust mop only made the
dangerous condition more difficult to see because it dispersed the water over the
floor instead of soaking it up. The jury was free to believe that in the roughly
fifteen minutes between when the employee mopped the floor and when
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Sparkman fell, a reasonable inspection of the employee’s work would have
revealed that she had not remedied the dangerous condition. See Farrar v.
Sabine Mgmt. Corp., 362 S.W.3d 694, 700 (Tex. App.—Houston [1st Dist.] 2011,
no pet.) (“Constructive knowledge, which is defined as knowledge that a person,
after reasonable inspection, ought to have or has reason to have, may be
imputed when the premises owner-operator had a reasonable opportunity to
discover and to remedy an allegedly dangerous condition.”); see also Reece, 81
S.W.3d at 816 (“[I]f an employee was in close proximity to a less conspicuous
hazard for a continuous and significant period of time, that too could affect the
jury’s consideration of whether the premises owner should have become aware
of the dangerous condition.”). The jury could have reasonably found that Wal-
Mart knew or should have known that the entryway posed a danger to customers
entering the store. See Rodriguez, 931 S.W.2d at 537 (holding that some
evidence existed that city knew of dangerous condition when employee “knew of
the leaks in the roof and knew that it had been raining”); Duprie, 59 S.W.3d at
198–99 (holding store had actual knowledge when employees were aware that
customers tracked in rainwater and made the floor slippery). Thus, we overrule
Wal-Mart’s third issue.
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Conclusion
Having overruled Wal-Mart’s three issues, we affirm the trial court’s
judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
DELIVERED: December 11, 2014
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