Brookshire Brothers, Ltd. v. Timothy James Wilkes ( 2004 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-096 CV ____________________

BROOKSHIRE BROTHERS, LTD, Appellant

V.

TIMOTHY JAMES WILKES, Appellee

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On Appeal from the 1st District Court Jasper County, Texas Trial Cause No. 24191

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MEMORANDUM OPINION  

Timothy James Wilkes filed suit against Brookshire Brothers, Ltd., for damages resulting from a slip-and-fall injury he sustained in its store in Kirbyville, Texas. The jury found in favor of Wilkes and awarded $16,260 in damages. The trial court entered judgment for Wilkes according to the verdict, plus $1,004.56 in prejudgment interest and adjudged costs against Brookshire Brothers. Brookshire Brothers appeals claiming the evidence is legally and factually insufficient to support the jury's verdict. Specifically, Brookshire Brothers argues there is no evidence, or alternatively insufficient evidence, it had constructive notice of the hazard.

In this case, the hazard was scrambled eggs on the floor in front of the deli. The deli was serving breakfast, which could be taken out or eaten there. Wilkes made his purchase and was leaving when he slipped and fell on the scrambled eggs. There is no dispute as to the cause of Wilkes' fall. Brookshire Brothers owed Wilkes a duty to exercise reasonable care to protect him from dangerous conditions in the store that were known or reasonably discoverable, but it was not an insurer of his safety. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). To prevail, Wilkes had to prove Brookshire Brothers had either actual or constructive notice of the spill. Id. Wilkes could meet the notice requirement by showing that Brookshire Brothers placed the eggs on the floor, Brookshire Brothers knew the eggs were on the floor, or it is more likely than not that the eggs were on the floor long enough to give Brookshire Brothers the opportunity to discover it. Id. No evidence was presented that Brookshire Brothers spilled the eggs on the floor or knew they were there. Accordingly, Wilkes had to establish the eggs had been on the floor for a sufficient period of time that Brookshire Brothers had a reasonable opportunity to discover it.

The court in Reece reaffirmed the time-notice rule. Id. at 815-16. Further, the court recognized an employee's proximity to a hazard will often be relevant in determining what constitutes a reasonable time for a premises owner to discover it. Id. at 816. The court noted:

Thus, if the dangerous condition is conspicuous as, for example, a large puddle of dark liquid on a light floor would likely be, then an employee's proximity to the condition might shorten the time in which a jury could find that the premises owner should reasonably have discovered it. Similarly, if 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. But in either case, there must be some proof of how long the hazard was there before liability can be imposed on the premises owner for failing to discover and rectify, or warn of, the dangerous condition. Otherwise, owners would face strict liability for any dangerous condition on their premises, an approach we have clearly rejected.

Id. (footnote and citations omitted).

Wilkes testified he arrived at the store between 8:30 and 9:00 in the morning. He went to the deli and placed an order. It took about five minutes for the order to be filled. The order was placed in a Styrofoam plate that closed at the top and then in a plastic bag. As Wilkes was leaving, he saw Reverend Woods and walked toward him. He slipped and fell. Wilkes testified he did not keep his eyes on the floor and observe everywhere he walked when he entered the store. He did not visually inspect the area where he had to walk. After he fell, Woods said there were eggs and Wilkes looked back and saw eggs. Wilkes agreed with Woods' description that the size of the substance on the floor was between a quarter and a half-dollar. Wilkes described the eggs as "light grayish green" and "kind of old." Wilkes said the eggs did not appear fresh. Wilkes testified there was not a family at the tables where he fell. According to Wilkes, Woods was not seated, but was coming toward him, toward the tables, when Wilkes saw him. Wilkes testified there were three employees in the deli area at the time. Wilkes did not know how the eggs got on the floor or how long they had been there.

Reverend Paul Woods testified he purchased breakfast that morning around 8:30 and sat at a table. As Wilkes was leaving, he came over to Woods' table and was in the process of greeting Woods when he (Wilkes) fell. Woods testified he had been there for twenty-five minutes and there was no one sitting at the table next to him who spilled the eggs during that time. Woods saw the eggs on the floor only after Wilkes fell and said they were approximately three feet from where he was sitting. Woods said Wilkes could not see the eggs on the floor. Woods could not testify as to how long the eggs had been on the floor.

Brookshire Brothers concedes that Wilkes introduced evidence two Brookshire Brothers' employees, Brenda Thornton and Ruth Bennett, were in close proximity to the spill and observed the area. Thornton and Bennett testified it was part of their job to look for spills in that area and clean them up. Thornton and Bennett both testified they had walked through that area shortly before Wilkes' accident and did not see any eggs on the floor. Thornton said the eggs were bright yellow and it was a small amount. Bennett also said the eggs were bright yellow, fluffy and soft, and a small amount, less than a tablespoon. Thornton testified she had served a family right before Wilkes came in and they sat at a table. She did not bus the table after they left because she was waiting on Wilkes. Thornton said nothing was left on the table. Thornton recalled a man sitting at one of the tables, and remembered the family sitting at the next table when he was there.

Wilkes argues the jury could infer from Woods' testimony the eggs were spilled before Woods sat down and therefore were on the floor for at least twenty-five minutes. Brookshire Brothers contends that inference is unreasonable and relies on the testimony from Thornton and Bennett that they checked the area minutes before Wilkes fell and did not see anything on the floor.

While the Reece court allows that proximity of an employee may affect the jury's determination of whether the owner should have noticed the condition, i.e., the actual length of time required to infer constructive notice can be affected by the employee's proximity, it rejects finding that proximity can supplant the time-notice rule. Woods' testimony, at best, is evidence the eggs could have been on the floor twenty-five minutes. It is not evidence the eggs were on the floor that long. There is no evidence as to how long the eggs were on the floor.

It was Wilkes' burden to establish it was more likely than not that Brookshire Brothers should have been aware of the spill because it existed long enough to give Brookshire Brothers a reasonable opportunity to discover and rectify it, or to warn about. Since Wilkes failed to meet that burden, appellant's issue is sustained. Therefore, we reverse the trial court's judgment and render judgment that Wilkes take nothing.

REVERSED AND RENDERED.

PER CURIAM

Submitted on October 1, 2004

Opinion Delivered November 18, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.