Suzanne Ridner and Marcus Ridner v. Walgreen Co. and Mike Timpe ( 2002 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

SUZANNE RIDNER and MARCUS RIDNER,                             Appellants, v. WALGREEN CO. and MIKE TIMPE,                             Appellees.

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No. 08-02-00277-CV Appeal from the 44th District Court of Dallas County, Texas (TC# 01-1076)

O P I N I O N

Appellants Suzanne and Marcus Ridner (Athe Ridners@) appeal from the trial court=s grant of summary judgment for appellees Walgreen Co. and Mike Timpe (AWalgreen@) on the Ridners= premises liability claims for damages arising from an incident which occurred at a Walgreen store in Dallas County.  We reverse the trial court=s judgment and remand this cause for trial.

Facts

On May 14, 2000, appellant Suzanne Ridner was shopping at a Walgreen store in Dallas, Texas for an automobile sunshade.  Sunshades were located in the automotive products section.  Items in that section were vertically displayed on nine-inch wide pegs that were hung off of a pegboard backing.  The sunshades were hanging next to a peg containing five AClubs,@ a security device for automobiles.  Each Club weighs about four and a half pounds.  While looking for a sunshade, a Club fell from a height of about five feet onto Ridner=s right foot.  Ridner sustained an injury which caused the development of a chronic pain condition.

After initial discovery, Walgreen moved for summary judgment contending that the Ridners failed to produce any evidence, or in the alternative any evidence that created genuine issues of material fact, that Walgreen had actual or constructive knowledge of the condition which caused the Club to fall on Ridner=s foot, and that that condition posed a unreasonable risk of harm to its invitees. The trial court granted the motion. The Ridners timely appealed.

A.  The Standard of Review.

Walgreen filed both a no-evidence and a traditional summary judgment motion. The trial court=s opinion is not clear as to whether it granted either or both summary judgments.

A no‑evidence summary judgment is properly granted if the non‑movant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the non‑movant=s claim on which the non‑movant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L. Ed. 2d 939 (1998).  If the evidence supporting a finding rises to a level that would enable reasonable, fair‑minded persons to differ in their conclusions, then more than a scintilla of evidence exists.  Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is A>so weak as to do no more than create a mere surmise or suspicion=@ of fact, and the legal effect is that there is no evidence.  Ianni v. Loram Maintenance of Way, Inc., 16 S.W.3d 508, 513 (Tex. App.-‑El Paso 2000, pet. denied).^[1]

A traditional summary judgment is proper if the record demonstrates there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.  See Tex. R. Civ. P. 166a(c).  The purpose of summary judgment is the elimination of patently unmeritorious claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact.  Collins v. County of El Paso, 954 S.W.2d 137, 145 (Tex. App.‑‑El Paso 1997, pet. denied); Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).  Unlike other final judgments reviewed on appeal, we do not review the summary judgment evidence in the light most favorable to the judgment of the trial court. Collins, 954 S.W.2d at 145; Continental Savings Association v. Collins, 814 S.W.2d 829, 831‑32 (Tex. App.‑‑Houston [14th Dist.] 1991, no writ).  The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law.  Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548‑49 (Tex. 1985).  In deciding whether there is a disputed material fact issue precluding summary judgment, all admissible evidence favorable to the non‑movant will be taken as true; every reasonable inference must be indulged in favor of the non‑movant and all doubts resolved in the non‑movant=s favor.  Collins, 954 S.W.2d at 145.

B.  The Elements of a Premises Liability Case.

In their first issue, the Ridners contend the trial court, as urged by Walgreen, improperly interpreted the elements of a premises liability cause of action, such that they were placed under a higher burden of proof than was legally warranted in this case.  The elements of a premises liability cause of action are well-established under Texas law.  To prevail, the invitee plaintiff, in this case the Ridners, must demonstrate that:

A.  Walgreen=s had actual or constructive knowledge of some condition on the premises,

B.  That posed an unreasonable risk of harm,

C.  Which Walgreen=s failed to exercise reasonable care to reduce or eliminate,

D.  Such that Ridner=s injuries were proximately caused by Walgreen=s failure to exercise reasonable care.

Keetch v. Kroger, 845 S.W.2d 262, 264 (Tex. 1992). Walgreen=s motion for summary judgment challenged the Ridners= proof with regard to the first two elements, that is, whether Walgreen had actual or constructive knowledge of some condition in the store, and whether that condition posed an unreasonable risk of harm.

We first confront the Ridners= claim that the trial court=s ruling was based on an erroneous interpretation of the law.  To support this argument, the Ridners assert that Walgreen formulated the first element as requiring proof of actual or constructive knowledge of a Adangerous@ condition, not Asome condition@ on the premises.  They further argue that Walgreen improperly convinced the trial court that this was a proper statement of the first element.

Whether or not the trial court adopted this formulation of the first element to rule against the Ridners would require us to review the internal thought process of the trial court.  We decline to undertake that task particularly because we find no evidence in the record that convinces us the trial court employed this analysis.  Even if there were such evidence, the remedy would require us to engage in the same inquiry we utilize to review any summary judgment, that is, did the trial court err in granting summary judgment because the plaintiff produced evidence creating genuine issues of material fact for resolution by the jury?

Although we therefore overrule the Ridners= first issue for review, we make the following observations.  Strictly speaking, Walgreen=s stated formulation of the first element of a premises liability claim that plaintiff must demonstrate it had actual or constructive knowledge of a Adangerous@ condition on its premises is, at worst, inaccurate.  See Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 2-3 (Tex. 1996); Keetch, 845 S.W.2d 264.  The existence of Aactual or constructive knowledge of a premises defect is a threshold requirement for such a [premises] claim.@ Motel 6, 929 S.W.2d at 3 (emphasis added).  There is thus no requirement imposed on plaintiff to demonstrate the defect was Adangerous@ to satisfy element one.  However, the first two elements of a premises claim speak to the existence of a duty. Ultimately it is therefore not inaccurate to say that to survive summary judgment, plaintiff must produce some proof that the premises owner had actual or constructive knowledge of a condition that posed an unreasonable risk of harm or Adanger@ to the invitee.  Motel 6, 929 S.W.2d at 3.

C.  The Ridners= Summary Judgment Proof.

The Ridners= Issues Two and Three urge that the trial court erred as they presented evidence creating a fact question on the first and second elements of their premises liability cause of action.  We find that they have.

It is undisputed that Walgreen constructed and stocked the Club display, and that construction of the display is the central issue with regard to liability in this case. However, Walgreen completely denies any knowledge of a  problem with the display. Walgreen specifically points to the fact that it never received any reports of any problems with the display prior to the incident at issue in this case.  It also relies heavily on Suzanne Ridner=s testimony that she did not observe anything about the display that seemed insecure prior to her injury.

That the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge of the defect.  Keetch, 845 S.W.2d 265. Nevertheless, the mere fact that there is undisputed evidence that Walgreen=s created and maintained the display does not, without more, constitute sufficient evidence with which the Ridners can sustain their case.  Id. at 266.  We therefore must decide whether there was other evidence concerning the knowledge element.

The Ridners produced the following evidence to support their claim that Walgreen had actual or constructive knowledge of the display=s defect.  Walgreen has no formal method by which it tracks and documents hazards that might exist in a particular store.  Incident or complaint forms are never made concerning customer complaints or accidents in the store.  For these reasons, unless the manager of the store received an oral report of a problem from an employee or customer, he would have no way of knowing that a problem existed that corporate or the local store needed to address.  Mike Timpe, the store manager, did not recall any employee or customer reports concerning problems with the Club display.  In any event, Timpe also testified he would not have reported any problem to corporate unless he had received more than one report of a problem with a particular display.

The construction and placement of items on the pegboard display which held the Clubs was pre-determined by corporate headquarters through Aplanograms@--diagrams of where each item should be placed on the display.  Planograms do not contain information concerning how many items should be placed on any given shelf or peg on the display.  Those decisions are left up to the stocking clerks.

Timpe testified that the pegs which held the Clubs could not simply be pulled out of the pegboard by a customer, nor could they be knocked out of the pegboard by someone accidentally brushing up against the display.  In Timpe=s store, the same size pegs were used on every display, without regard to the number or weight of the items which hung from the pegs.  Different size pegs were available for use.  The pegs used here were approximately nine inches long.  There was no specific training or instructions received from corporate with regard to safety limitations for the pegs or the shelves.       Timpe testified the Clubs were pre-packaged and pre-stamped with two holes for hanging, although he did not know how many pegs had been used to hang the Clubs that day.  Rebecca Helgen, Timpe=s executive assistant, testified she did not remember receiving special instructions to hang the Clubs from two pegs.  Timpe stated that he would have concerns about the safety of hanging the Clubs from only one peg, and that it would be dangerous to hang more than four Clubs from one peg.  Ridner testified  there were four Clubs still on the peg after the incident, giving rise to a reasonable inference that there were five on the peg immediately before she was injured.  Marcus Ridner testified that when he looked at the display, there was only one peg for the Clubs.  A diagram drawn by Ridner appears to indicate the Clubs were hung off a single peg.

Helgen, who was in the store the day Ridner was injured, testified she discovered the Club display had been taken down a month or so after the incident.  Tammy Provence, the store manager present at the time of the incident, told an employee to remove the Clubs from the pegboard immediately after the incident.  However, she never did an inspection of the display following the incident.  She did not know how many Clubs had been hanging from the display that day.

Timpe testified that the key to pegboard safety was to insure that the product hung in a strictly vertical fashion from the peg.  Corporate guidelines required that each peg contain the maximum number of items possible to allow the product to hang straight down.  Neither he nor Helgen knew whether the peg from which the Club fell was improperly hung, bent, or otherwise defective, because neither checked the display after the incident.  Helgen, who was in the store the day of the incident, had not checked the Club display for a considerable amount of time before the incident, and had not done a walk-through inspection of the store when she arrived that day.

In his experience as store manager, Timpe had seen items that were improperly hung.  In those instances, he would speak to the employee to correct the problem, and considered that a training issue.

Henry Wickes, a mechanical engineer with a specialty in safety engineering, conducted informal testing with an exemplar peg and several Clubs.  He found that the peg was pulled downward.  He also stated that it would have been difficult for Ridner to have seen the peg sagging because she was facing it and the sag is only evident from a right-angle view.  In his opinion, Walgreen was negligent in their method of display for the Clubs and the way the Clubs were displayed posed an unreasonable risk of harm.

Wickes was questioned as to whether safer methods of display for the Clubs existed. Wickes detailed several alternatives including a display method he had seen in other stores where the Clubs were placed on a shelf horizontally and were contained in a cardboard box with slots separating each item.  Wickes also opined it would have been safer to adjust the height of the peg closer to the floor so that if the peg drooped and a single item fell from the peg, the force on impact would not be as great. He also stated that a peg that turned upward instead of straight out would be less likely to permit the release of items from the peg and would therefore be safer.  Lastly, Wickes testified that Walgreen should have recognized the display posed a hazard because of the weight of the Clubs and the height from which they were hung, such that a falling Club was likely to cause injury if it fell from the display.

We agree with Walgreen that the Supreme Court has consistently held that although proof that the premises owner or occupier created a condition which poses an unreasonable risk of harm may constitute circumstantial evidence of knowledge of the condition, mere creation of the condition does not establish knowledge as a matter of law. Keetch, 845 S.W.2d at 266.  Evidence of other incidents attributable to the same object, defects in the object, knowledge of employees of problems with the object, and like indicia can be probative on this point.  Rosas v. Buddie=s Food Store, 518 S.W.2d 534, 537 (Tex. 1975); Caton v. Kelley, 424 S.W.2d 698, 703-04 (Tex. Civ. App.--Houston [1st Dist.] 1968, writ ref=d n.r.e.).

Keeping this burden in mind, we still find that the trial court erred in granting summary judgment on this basis for the following reasons.  Timpe testified that hanging more than four Clubs on a peg could be dangerous.  Ridner testified there were four Clubs left on the peg after one fell on her foot.  Employees in the store at the time of the accident and Timpe also testified the display had not been checked the day of, or for several months prior to, the incident.  They also confirmed that decisions concerning the number of items placed on any given peg was made by stocking clerks who operated under the supervision of managers.  This evidence creates a genuine issue of material fact that Walgreen had actual or constructive knowledge of a condition that could pose a danger-- that there were more than four Clubs on the peg.

Timpe also testified he would be concerned about the safety of the display if the Clubs, which had two pre-punched holes in its packaging for display, were only hung from one peg.  Marcus Ridner testified there was only one peg for the Clubs. Again, this evidence creates a genuine issue of material fact that the Clubs were hung in a fashion which Walgreen admitted could be unsafe.

Finally, Walgreen maintains it had no actual notice of any prior incidents or problems with the display.  However, the testimony of its employees indicates that no written reports of such incidents are ever made.  Furthermore, if an incident occurred but was not reported to an appropriate manager, no action would ever be taken concerning the problem.  Indeed, Timpe admitted it would take more than one accident for him to bother reporting any premises problem to corporate supervisors.  In other words, barring an admission against their employers= interest, the Ridners have no way of producing circumstantial proof of prior incidents.

Furthermore, although Walgreen=s employees testified they never had a problem with the display, those same employees also testified the display had not been inspected for several months before and after the incident.  One reasonable conclusion that can be drawn from these facts in favor of the Ridners is that Walgreen=s failure to maintain a record of hazardous conditions on the premises, and its reliance on purely anecdotal reports from its employees, permits potentially hazardous conditions to exist on their premises.  This concern aside, the Ridners did produce Wickes= testimony that Walgreen should have known of the unreasonable risk posed by the Club display because of the height from which the Clubs were suspended and their weight.

            The Ridners= evidence raises a genuine issue of material fact as to whether Walgreen had actual or constructive knowledge of a defective condition on their premises which it created.  We therefore find that the trial court erred in granting summary judgment on this basis.

As detailed above, the Ridners offered expert testimony that Walgreen=s method of display for the Clubs posed an unreasonable risk of harm.  The evidence produced by the Ridners thus raises a genuine issue of material fact on this issue. We therefore sustain the Ridners= second issue for review.  We therefore need not reach the Ridners= third issue.

Conclusion

The judgment of the trial court is reversed and this cause remanded for trial.

SUSAN LARSEN, Justice

December 19, 2002

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)

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^[1]Because we find that the Ridners met their burden to sustain the challenge posed by the traditional summary judgment, we necessarily determine that the no-evidence summary judgment was also inappropriate.