Maryam Mohammadi v. Albertsons, LLC D/B/A Randall's Albertsons Companies, LLC D/B/A Randall's and Randall's Food Markets, Inc. D/B/A Randall's Randall's Food & Drugs L.P., D/B/A Randall's ( 2022 )

Reversed and Remanded and Majority and Dissenting Opinions filed
December 6, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00045-CV
MARYAM MOHAMMADI, Appellant
V.
ALBERTSONS, LLC D/B/A RANDALL’S; ALBERTSONS COMPANIES,
LLC D/B/A RANDALL’S; RANDALL’S FOOD MARKETS, INC. D/B/A
RANDALL’S; AND RANDALL’S FOOD & DRUGS L.P., D/B/A
RANDALL’S, Appellees
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 2017-51885
OPINION
Maryam Mohammadi appeals from a take nothing judgment based on an
adverse jury verdict in her slip-and-fall, premises liability action against appellees
Albertsons, LLC d/b/a Randall’s; Albertson’s Companies, LLC d/b/a Randall’s;
Randall’s Food Markets, Inc. d/b/a Randall’s; and Randall’s Food & Drugs L.P.,
d/b/a Randall’s (collectively, “Randalls”). In three issues, Mohammadi contends
the trial court erred in constructing the jury charge, principally in bifurcating the
premises liability knowledge element into two questions and in conditioning jury
responses to certain questions on the answers to other questions. Concluding the
trial court erred in its construction of the charge, we reverse and remand.
I. Background
At the time of the incident made the basis of this lawsuit, Mohammadi
worked at a Wells Fargo Bank branch located within a Randalls grocery store. On
the day in question, Mohammadi was returning from a Randalls restroom, heading
back towards Wells Fargo, when her left foot slid forward on the floor and she fell
at the front of the store. Mohammadi fell directly in front of two open wire
shopping carts that Randalls employees used to collect returned and damaged
items. As will be discussed in more detail below, Mohammadi asserts that she
slipped on a liquid substance on the floor beside one of the return carts.
A. The Evidence
The key evidence introduced at trial regarding Randalls’ knowledge was a
surveillance video taken of the front of the Randalls store before, during, and after
Mohammadi’s fall. Other evidence included the testimony of a former Randalls
employee who was a supervisor in the area where Mohammadi fell, Mohammadi’s
own testimony regarding events, testimony from Randalls’ director of safety, and
Randalls’ incident reports regarding the fall.
The video is not of particularly high quality. It runs for approximately 15
minutes and shows a static view of the front of the store, including the end of some
of the checkout lanes, the shopping carts for returned and damaged items, and the
walkway between the lanes and the carts. Very early in the video, a Randalls
2
employee can be seen carrying what appeared to be something in a plastic grocery
bag from the checkout lanes and across the walkway. The employee dipped the bag
and its contents down into a container for a couple of seconds before pulling it
back out. One witness described the container as looking like a trash can and the
employee’s motion with the bag as shaking. The employee then deposited the bag
and its contents into the child seat of one of the return carts. In her other hand, she
appeared to be holding a towel. One witness watching the video stated that it
looked like the employee wiped the bottom of the bag with the towel, but this is
difficult to discern with certainty on the video. The employee then appeared to
wipe her hands on the towel as she walked away.
The video continues with a number of people traversing the walkway. As
defense counsel pointed out and former Randalls employee Brandon Wilmore
agreed in his testimony, none of the people shown in the video walk as closely to
the return carts as Mohammadi does when she falls. Wilmore, who was the
supervisor of that area at that time, and other employees are among the people
moving along the walkway in the video. At approximately the 8:45 mark in the
video, Mohammadi entered the picture walking across the front of the store.
Apparently due to traffic on the walkway, she stepped particularly close to the
return carts. When she did so, her left foot slid out from under her, and she fell to
the floor on her left side.
Wilmore and a person who appeared to be a customer came over to check on
Mohammadi. The customer looked in the area where Mohammadi’s foot slipped
and appeared to point out something on the floor to Wilmore. The two men helped
Mohammadi to her feet and then inspected the area by the return carts again. The
customer then left, and Wilmore retrieved a large roll of paper towels, tore off a
section several feet long, and used his foot to wipe the paper towel across the floor
3
where Mohammadi appeared to slip. A security guard then entered the picture, and
he and Wilmore visually inspected the floor before Wilmore again wiped the towel
over the area. After a couple of minutes, Mohammadi was able to slowly walk
away from the area with the aid of another person, her left armed draped over the
other person’s shoulders. Afterwards, Wilmore and the security guard again
inspected the floor. Wilmore was still holding the paper towel at that point, but it is
unclear if he again used it to wipe the floor. Later in the video, Wilmore can be
seen showing the area of the floor to another employee.
In his testimony, Wilmore confirmed that the Randalls store did not provide
solid plastic containers for damaged products and if liquid fell from a damaged
product in the return carts, it would fall to the floor. He explained that damaged
products had to be accounted for and could not simply be thrown away and
cashiers were trained accordingly. Wilmore agreed that on the video, it looked like
the Randalls employee placed the shopping bag and contents into the container that
looked like a trash can “to shake off some liquid before [putting] it into the return
cart” and then wiped her hands on the towel she was carrying. Wilmore said that
he wiped the floor with paper towel just in case there was anything on the floor,
but he initially denied finding anything on the floor. Wilmore acknowledged,
however, that the Randalls incident report regarding Mohammadi’s fall stated that
she slipped in water on the floor and hurt her knee and shoulder. The report also
stated that Wilmore observed a small number of liquid drops on the floor.
On cross-examination, Wilmore stated that he could not “100 percent
confirm that there [was] something on [the] bag” that the Randalls employee put in
the return cart. He said that as shown on the video, he performed a sweep walk of
the location before the fall occurred and saw nothing. Wilmore stated
inconsistently that (1) he does not recall if anything was on the floor at that
4
location or whether he picked up anything with the paper towel when he wiped that
area of floor and (2) he did not find anything and the paper towel was not damp
when he picked it up. Wilmore indicated that it had been raining on the day in
question, but Mohammadi stated in her testimony that she did not think it had been
raining that day. Moreover, there was testimony that the area of the fall was not
near a store entrance.
On re-direct, Wilmore opined that Mohammadi was not being negligent or
walking differently than others in the store when she fell and that if anyone was at
fault for the fall, it was Randalls and not Mohammadi. He insisted that he told the
truth in the incident report that Mohammadi slipped on water on the floor. And he
acknowledged that he reported three times on the day in question that he had
cleaned up a foreign substance from the area, possibly water.
Mohammadi testified that after she fell, she saw liquid to her right where the
return cart was located. Her opinion is that the substance was something that had
leaked from the return cart and could not have been rainwater from outside.
Mohammadi did not recall if she had liquid on her body or pants after she fell as
she was in severe pain at the time.
Michael Habbestad, Randalls’ Director of Safety, disagreed that the video
revealed there was liquid in the bag that the employee placed in the return cart, but
he agreed that it looked as though the employee was holding a paper towel under
the bag. He acknowledged it was Randalls’ job to make sure the area was clear,
clean, and safe. The record also contains the Randalls incident reports concerning
the fall, which, as discussed above, indicated Mohammadi slipped on liquid on the
floor and Wilmore cleaned something up in that area.
B. The jury charge
5
Before submitting the charge to the jury, the trial court determined that
Mohammadi was an invitee at the time of the incident. In premises liability cases,
the duty owed by an owner or occupier of property is determined by whether the
allegedly injured party is classified as an invitee, licensee, or trespasser. Hernandez
v. Gonzalez-Flores, 530 S.W.3d 253, 256 (Tex. App.—Houston [14th Dist.] 2017,
pet. denied). Mohammadi maintained that she was an invitee at the time and place
of her fall, while Randalls insisted that she was a mere licensee. An invitee enters
land with the owner or occupier’s knowledge and for the mutual benefit of both,
while a licensee enters and remains on land with the owner or occupier’s consent
but for the licensee’s own convenience. See, e.g., Plasencia v. Burton, 440 S.W.3d
139, 144 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Phrased differently, an
invitee is a person who enters the premises of another in answer to an express or
implied invitation from the owner or occupier for their mutual benefit. Johnson v.
Tex. Genco, L.P., No. 14-05-00473-CV, 2006 WL 1389598, at *3 (Tex. App.—
Houston [14th Dist.] May 23, 2006, no pet.) (mem. op.). In the absence of some
relation that inures to the mutual benefit of the plaintiff and the owner, or to the
benefit of the owner, the injured party must be regarded as a mere licensee and not
an invitee. Newman v. CenterPoint Energy Houston Elec., LLC, No. 14-16-00007-
CV, 2017 WL 2292577, at *8 (Tex. App.—Houston [14th Dist.] May 25, 2017, no
pet.) (mem. op.).
Generally speaking, in order to impose liability on an owner or occupier of
property, an invitee must show that the owner or occupier failed to protect the
invitee from a known condition that created an unreasonable risk of harm or a
dangerous condition that should have been discovered by the exercise of
reasonable care; whereas, a licensee must show that the owner or occupier failed to
protect the licensee only from a known dangerous condition. See, e.g., Plasencia,
6
440 S.W.3d at 144.
As stated, the trial court determined that Mohammadi was an invitee, but
perhaps because of the dispute over her status, the trial court decided to bifurcate
the invitee knowledge element into two separate questions. The Texas Supreme
Court has held that “the proper instruction in a premises liability case when the
plaintiff is” an invitee reads:
With respect to the condition of the premises, defendant was negligent
if—
a. the condition posed an unreasonable risk of harm;
b. defendant knew or reasonably should have known of the
danger; and
c. defendant failed to exercise ordinary care to protect plaintiff from
danger, by both failing to adequately warn plaintiff of the condition
and failing to make that condition reasonably safe.
State v. Williams, 940 S.W.2d 583, 584–85 (Tex. 1996) (emphasis added.) This
language is also the basis for the Texas Pattern Jury Charge for premises liability
when the plaintiff is an invitee. Comm. on Pattern Jury Charges, State Bar of Tex.,
Texas Pattern Jury Charges: Malpractice, Premises & Products PJC 66.4 (2016).
In bifurcating the knowledge element, the trial court submitted two questions
that were identical except as to the knowledge element. Jury Question 1 asked
Did the negligence, if any, of Randall’s Food & Drug, L.P.
proximately cause the occurrence in question?
With respect to the condition of the premises, Randall’s Food & Drug,
L.P. was negligent if—
l. the condition posed an unreasonable risk of harm, and
2. Randall’s reasonably should have known of the danger, and
3. Randall’s failed to exercise ordinary care to protect Maryam
7
Mohammadi from the danger, by both failing to adequately warn
Maryam Mohammadi of the condition and failing to make that
condition reasonably safe. (Emphasis added.)
Jury Question 2 was conditioned on a positive answer to Question 1 and
asked:
Did the negligence, if any, of Randall’s Food & Drug, L.P.
proximately cause the occurrence in question?
With respect to the condition of the premises, Randall’s Food & Drug,
L.P. was negligent if—
1. the condition posed an unreasonable risk of harm, and
2. Randall’s knew of the danger, and
3. Randall’s failed to exercise ordinary care to protect Maryam
Mohammadi from the danger, by both failing to adequately warn
Maryam Mohammadi of the condition and failing to make that
condition reasonably safe. (Emphasis added.)
Question 1 therefore queried regarding constructive knowledge as would be
appropriate only if Mohammadi was an invitee, and Question 2 inquired regarding
actual knowledge, which would be proper if Mohammadi were an invitee or a
licensee.1 Both questions also instructed the jury on the applicable definitions of
“ordinary care” and “proximate cause.” There is no explanation in the record for
why the trial court conditioned Question 2 on a positive response to Question 1.
The third and final charge question asked about damages and was
conditioned on a positive answer to either Question 1 or Question 2, even though
Question 2 was itself conditioned on a positive answer to Question 1. At the
conclusion of trial, the jury answered Question 1, “No,” and therefore did not
answer the other two questions. As stated, on appeal, Mohammadi challenges the
1
These concepts are discussed in more detail below.
8
trial court’s construction of the jury charge, particularly the bifurcation of the
knowledge element and the conditioning of Question 2 on the jury’s answer to
Question 1.2
II. Standards of Review
Under Texas Rule of Civil Procedure 278, a trial court is required to submit
requested questions to the jury on controlling issues if those questions are
supported by the pleadings and the evidence. Tex. R. Civ. P. 278; see also Triplex
Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995) (“If an issue is properly
pleaded and is supported by some evidence, a litigant is entitled to have controlling
questions submitted to the jury.”). A trial court has broad discretion in formulating
jury questions so long as the charge is legally correct and fairly places the disputed
issues before the jury. See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664
(Tex. 1999); DeClaris Assocs. v. McCoy Workplace Sols., L.P., 331 S.W.3d 556,
563 (Tex. App.—Houston [14th Dist.] 2011, no pet.). A trial court abuses this
discretion when it acts without reference to guiding rules and principles. Tex. Dep’t
of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); Saenz-Guerrero v.
Gardner, 587 S.W.3d 191, 195 (Tex. App.—Houston [14th Dist.] 2019, no pet.). A
judgment will not be reversed based on charge error unless such error probably
2
Mohammadi states her three issues as follows:
[1] Did the trial court err by bifurcating the proper standard and legal definition of
the knowledge of the owner/operator of the premises which must be proven by the
Appellant, as correctly stated in TEXAS PATTERN JURY CHARGE 66-4, into
two separate questions[?]
[2] Did the trial court err by conditioning the Jury’s answer to Jury Question No.
2 to a “yes” answer for Jury Question No. 1 because it resulted in the jury
applying an incorrect statement of the law to the evidence?
[3] Did the trial court err by conditioning the Jury’s answer to Jury Question No.
3 to a “yes” answer for Jury Question No. 1 or Jury Question No. 2 because it
resulted in ambiguous conflict in the jury question conditioning instructions
resulting in the jury being unable to correctly apply the law to the evidence?
9
caused the rendition of an improper verdict or probably prevented a party from
properly presenting the case to the appellate courts. See Tex. R. App. P. 44.1(a)(1);
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex.
2009).
Generally, broad form jury submissions are required “whenever feasible.”
See Tex. R. Civ. P. 277. However, there may be situations in which bifurcated or
granulated submission is acceptable, such as to avoid mixing valid and potentially
invalid liability theories in a single broad-form liability question. See Crown Life
Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000). Even when jury questions are
improperly submitted in bifurcated or granulated form, it is not reversible error if
the questions fairly submitted the disputed issues and incorporated a correct legal
standard for the jury to apply. See H.E. Butt Grocery Co. v. Warner, 845 S.W.2d
258, 260 (Tex. 1992) (rejecting contention that granulated premises liability
submission was reversible error); see also Hyundai Motor Co., 995 S.W.2d at 664;
DeClaris Assocs., 331 S.W.3d at 563.
III. Discussion
As stated, the trial court determined that Mohammadi was an invitee.
Accordingly, to impose liability on Randalls, Mohammadi had to prove, among
other things, that Randalls had actual or constructive knowledge of the allegedly
unreasonably dangerous condition. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d
812, 814 (Tex. 2002). “A condition is unreasonably dangerous if it presents an
unreasonable risk of harm.” Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163
(Tex. 2007). Generally, a slip-and-fall plaintiff satisfies the knowledge element by
establishing that (1) the defendant placed the substance on the floor, (2) the
defendant 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 premises owner a
10
reasonable opportunity to discover it. See Reece, 81 S.W.3d at 814.
Mohammadi contends that the trial court erred in failing to submit to the jury
a premises liability question in keeping with the supreme court’s “proper
instruction” in Williams and PJC 66.4 and instead bifurcating the knowledge
element into two separate questions. She also asserts the court erred in
conditioning a jury response on actual knowledge (Question 2) on a positive
finding by the jury on constructive knowledge (Question 1). Mohammadi contends
that these errors effectively deprived her of an actual knowledge submission and
tainted the entirety of the charge. See Thedford Crossing, L.P. v. Tyler Rose
Nursery, Inc., 306 S.W.3d 860, 866 (Tex. App.—Tyler 2010, pet. denied) (“If an
erroneous conditional submission deprives a party of the submission of an issue
raised by the pleadings and evidence, it constitutes reversible error.”); accord
Varme v. Gordon, 881 S.W.2d 877, 881 (Tex. App.—Houston [14th Dist.] 1994,
writ denied) (holding same, citing Washington v. Reliable Life Ins. Co., 581
S.W.2d 153, 160 (Tex. 1979)).
In response, Randalls argues that (1) Mohammadi failed to preserve her
arguments in the trial court; (2) Mohammadi was a licensee and not an invitee, thus
bifurcation in the jury charge is a nonissue; (3) actual knowledge was submitted to
the jury, but the jury’s “no” answer to the constructive knowledge question
logically precluded the possibility of a “yes” response to the actual knowledge
question; and (4) the evidence did not support submission of a question on actual
knowledge. We will begin by addressing the preservation issue before turning to
the substantive issues raised in this appeal.
A. Preservation.
Randalls first asserts that Mohammadi failed to preserve her complaints. To
preserve a complaint for appellate review, a party must make a timely and
11
sufficiently specific request, objection, or motion in the trial court. Tex. R. App. P.
33.1. “A party objecting to a charge must point out distinctly the objectionable
matter and the grounds of the objection.” Tex. R. Civ. P. 274. During the charge
conference, Mohammadi’s attorney explicitly objected to Question 1 on the ground
that it should ask whether Randalls knew or should have known of the danger.
Counsel further objected to splitting the liability issue into two questions and to
conditioning Question 2 on the jury’s answer to Question 1. He explained to the
court that Mohammadi was an invitee and that the jury should be able to consider
actual knowledge regardless of its finding on constructive knowledge. Mohammadi
also submitted her own proposed Question 1 in substantially correct form. See
Williams, 940 S.W.2d at 584–85. Mohammadi clearly preserved her appellate
arguments regarding the bifurcation and conditioning in the jury charge.
B. Invitee Status
Randalls next asserts the trial court erred in concluding Mohammadi was an
invitee instead of a mere licensee.3 Generally, a premises-liability plaintiff’s status
is a question of law, although it can be a jury question when facts relevant to the
legal standard are in dispute. Cath. Diocese of El Paso v. Porter, 622 S.W.3d 824,
829 (Tex. 2021); see also Texas Pattern Jury Charges: Malpractice, Premises &
Products PJC 66.6. Here, Randalls does not argue that the trial court should have
submitted the issue to the jury but appears to assert Mohammadi’s status as a
licensee was established as a matter of law.
It is undisputed in this case that at the time of the incident, Mohammadi was
3
Randalls licensee argument appears mainly aimed at explaining why it was proper for
the trial court to bifurcate the knowledge element, i.e., because there was a legitimate question as
to whether Mohammadi was an invitee or a licensee. See Casteel, 22 S.W.3d at 389. As will be
made clear below, the clarification of Mohammadi’s status is also relevant to our disposition of
this appeal.
12
working for a subtenant of Randalls, Wells Fargo, and was on her way back from
using a Randalls restroom. The record indicates that there was no restroom located
in the space leased by Wells Fargo for its employees to use. Although Randalls
acknowledges that Mohammadi was an invitee while actively performing her job
duties for Wells Fargo, it argues she became a licensee when she undertook the
“personal errand” of going to the restroom. As set forth above, the test for whether
a plaintiff was an invitee is whether the person entered the owner or occupier’s
land with the owner or occupier’s knowledge, or at its express or implied
invitation, and for the mutual benefit of both or for the benefit of the owner or
occupier. See Plasencia, 440 S.W.3d at 144; Tex. Genco, 2006 WL 1389598, at *3.
In the absence of some relation that inures to the mutual benefit of the plaintiff and
the owner or to the benefit of the owner, the injured party must be regarded as a
mere licensee and not an invitee. Newman, 2017 WL 2292577, at *8.
Here, there was at least an implied invitation for Mohammadi to use the
Randalls restroom as part of the business relationship that linked Randalls, Wells
Fargo, and Mohammadi. Randalls would certainly expect that employees of its
subtenant would use the restroom facilities available to them inside the Randalls
store when there were no such facilities available in the Wells Fargo leased space.
Randalls, Wells Fargo, and Mohammadi all benefitted from the subtenant
relationship. See Newman, 2017 WL 2292577, at *8; Plasencia, 440 S.W.3d at
144; Tex. Genco, 2006 WL 1389598, at *3.
Randalls relies heavily on Mayer v. Willowbrook Plaza L.P., 278 S.W.3d
901 (Tex. App.—Houston [14th Dist.] 2009, no pet.), which involved murders in a
mall parking lot, in support of its contention that Mohammadi was a licensee when
she was returning from the restroom. The decedents in Mayer were deemed
licensees when they were shot and killed in a mall parking lot after their shifts
13
working at a store in the mall. Id. at 913–15. The Mayer decedents, however, had
left the premises hours earlier to attend a party at another location and only
returned to the parking lot around 4 a.m. to retrieve their cars when the shooting
occurred. Id. at 913-14. Under those circumstances, we explained that although the
decedents were initially invitees when they parked their cars for work, by leaving
their cars in the parking lot while attending an offsite party, the decedents were
using the lot for their own purposes and not for any mutually beneficial business
with the mall. Id. at 914-15. Here, Mohammadi’s leaving the Wells Fargo space to
go to the Randalls restroom during her shift and then returning to the Wells Fargo
space was more akin to the decedents in Mayer’s original use of the parking lot.
Just as the decedents parking their cars in the lot in order to work at the mall was a
mutually beneficial purpose, so was Mohammadi going to the Randalls restroom. It
was necessary for the decedents to park their cars to go to work just as it was
necessary for Mohammadi to be able to use the restroom. There was at least an
implied invitation for her to do so. Mayer therefore supports the trial court’s
holding that Mohammadi was an invitee at the time and location of her accident.4
The trial court properly concluded that Mohammadi was an invitee at the time and
place of her alleged injuries.
C. “Logically precluded.”
Randalls next argues that the need for the jury to make a finding as to actual
4
Randalls lists a number of other situations it deems analogous to Mohammadi’s
circumstances, including a person taking a shortcut across a parking lot, a loafer or loiterer, a
person entering a business only to get out of the weather, a person who enters a business in
search of her children, a tourist visiting a plant at her own request, and a stranger entering an
office building to mail a letter, citing Holder v. Mellon Mortgage Co., 954 S.W.2d 786, 798
(Tex. App.—Houston [14th Dist.] 1997), rev’d on other grounds, 5 S.W.3d 654 (Tex. 1999)
(plurality op.), and W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 60, 413 (5th
ed. 1984). Each of these situations, however, is readily distinguishable due to the absence of a
mutually beneficial business relationship.
14
knowledge was “logically precluded” by the jury’s answer to the constructive
knowledge question.5 Randalls posits that a person “could have constructive
knowledge without actual knowledge” but could not have actual knowledge
without constructive knowledge. Randalls does not cite any authority that supports
the notion that a lack of constructive knowledge precludes a finding of actual
knowledge, and we disagree with Randalls’ reasoning.
Randalls cites the descriptions of actual and constructive notice provided by
the Texas Supreme Court in Madison v. Gordon, which read: “Actual notice rests
on personal information or knowledge. Constructive notice is notice the law
imputes to a person not having personal information or knowledge.” 39 S.W.3d
604, 606 (Tex. 2001) (citing Flack v. First Nat’l Bank, 226 S.W.2d 628, 631-32
(Tex. 1950)). In the premises liability context, the supreme court has more
specifically explained that “[a]ctual knowledge requires knowledge that the
dangerous condition existed at the time of the accident, as opposed to constructive
knowledge which can be established by facts or inferences that a dangerous
condition could develop over time.” City of Corsicana v. Stewart, 249 S.W.3d 412,
414–15 (Tex. 2008) (citing City of Dallas v. Thompson, 210 S.W.3d 601, 603
(Tex. 2006)). Black’s Law Dictionary defines “actual” as “[e]xisting in fact; real”
and “constructive” as “[l]egally imputed; existing by virtue of legal fiction though
not existing in fact.” Black’s Law Dictionary 42, 380 (10th ed. 2009). As
mentioned above, the supreme court has approved the submission of these
concepts in premises liability jury charges through asking whether the “defendant
knew or reasonably should have known of the danger.” Williams, 940 S.W.2d at
584–85.
5
The actual knowledge submission was contained in Question 2, which was contingent
on a positive answer to Question 1 and thus was not answered.
15
Texas law therefore treats “actual knowledge” and “constructive
knowledge” as distinct inquiries. Constructive knowledge is in effect a substitute in
the law for when actual knowledge has not been shown. See CMH Homes, Inc. v.
Daenen, 15 S.W.3d 97, 102 (Tex. 2000). The approved charge language in
Williams therefore puts the actual knowledge query first because if the jury
determines that a defendant actually knew of a particular danger, there is no reason
for the jury to undertake the typically more involved mental calculus of whether
the defendant should have known of the danger under the circumstances. 940
S.W.2d at 584–85. Indeed, a finding of either actual knowledge or constructive
knowledge could make a finding on the other knowledge inquiry unnecessary, as
just one such finding is required to support the judgment in an invitee premises
liability case. See Reece, 81 S.W.3d at 814.
However, the contrary is not true: a failure to find actual or constructive
knowledge does not render the other inquiry unnecessary or immaterial. There may
be reasons for a jury to determine a defendant had actual knowledge but not
constructive knowledge. For example, a jury could conclude in a particular case
that while there was no reasonable expectation under the circumstances that the
defendant should know of a danger, the defendant did nonetheless know of the
danger. Or a jury could simply conclude that there could be no constructive
knowledge, i.e., knowledge implied in law, in light of evidence of actual
knowledge in a particular case. See CMH Homes, 15 S.W.3d at 102; Black’s Law
Dictionary 380. We, of course, do not know why this jury answered Question 1 on
constructive knowledge “[n]o.” As discussed above, if there was evidence
presented at trial that Randalls had actual knowledge of a dangerous condition that
caused Mohammadi’s injury, Mohammadi was entitled to a jury submission on
actual knowledge, irrespective of the jury’s answer on constructive knowledge. See
16
Tex. R. Civ. P. 278; Triplex Commc’ns, 900 S.W.2d at 718. We will not speculate
on how the jury would have answered an actual knowledge question based on its
answer to the constructive knowledge question. See generally Ex parte T.M.S., 652
S.W.3d 130, 135 (Tex. App.—Eastland 2022, orig. proceeding) (noting “appellate
courts are not well-suited to” speculate on a jury’s thought processes, citing
Springs Window Fashions Div., Inc. v. Blind Maker, Inc., 184 S.W.3d 840, 867
(Tex. App.—Austin 2006, pet. granted, judgm’t vacated w.r.m.)). For the forgoing
reasons, the jury’s negative answer on constructive knowledge did not logically
preclude it from making a finding on actual knowledge. We turn now to a review
of the evidence at trial to determine if Mohammadi was entitled to a submission on
actual knowledge.
D. Evidence
It was undisputed at trial that Mohammadi was entitled to a submission on
actual knowledge if supported by the evidence. See Tex. R. Civ. P. 278 (requiring
submission of questions on controlling issues of fact supported by pleadings and
evidence); see also Triplex Commc’ns, 900 S.W.2d at 718. If supported by
evidence, a submission on actual knowledge would have been appropriate
regardless of whether Mohammadi was an invitee, as she argued, or a mere
licensee, as Randalls argued. See Plasencia, 440 S.W.3d at 144. Randalls does not
dispute that Mohammadi’s pleadings supported a submission on actual knowledge.
In examining the record for evidence supporting an actual knowledge
submission, we view the evidence and reasonable inferences therefrom in the light
most favorable to Mohammadi and disregard evidence and inferences to the
contrary unless a reasonable jury could not. See Elbaor v. Smith, 845 S.W.2d 240,
243 (Tex. 1992); WCW Int’l, Inc. v. Broussard, No. 14-12-00940-CV, 2014 WL
2700892, at *11 (Tex. App.—Houston [14th Dist.] June 3, 2014, pet. denied)
17
(mem. op.); see also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
“[T]here is no one test for determining actual knowledge that a condition presents
an unreasonable risk of harm.” Univ. of Tex.–Pan Am. v. Aguilar, 251 S.W.3d 511,
513 (Tex. 2008) (per curiam). Actual knowledge may be established through
circumstantial evidence but only when such evidence either directly or by
reasonable inference supports that conclusion. See City of Corsicana v. Stewart,
249 S.W.3d 412, 415 (Tex. 2008).
There was no evidence that a Randalls employee observed any liquid on the
floor where Mohammadi slipped and fell before she slipped and fell. There was
evidence, however, that Randalls provided open wire shopping carts instead of
closed plastic containers for damaged and returned products and set those carts
immediately adjacent to a heavily traversed walkway. And there was evidence
from which a jury could reasonably conclude that shortly before Mohammadi’s
accident, a Randalls employee knowingly placed a leaking grocery bag in the part
of one of the return carts closest to the walkway and the spot where Mohammadi
fell.
The Texas Supreme Court has explained that “even in the absence of
evidence showing the storeowner’s actual or constructive knowledge of the
presence on the floor of the specific object causing the fall,” a storeowner still may
be liable if the plaintiff can show the storeowner had “knowledge of the
foreseeable harm of some course of conduct or method of operation.” Corbin v.
Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983). In Corbin, the plaintiff
alleged that he slipped and fell on a grape left on a grocery store floor. In reversing
a directed verdict favoring the store, the supreme court held that although there
was no evidence the store knew or should have known about a specific grape that
caused the plaintiff’s fall, the knowledge of an unusually high risk of harm
18
associated with the store’s self-serve grape display satisfied the knowledge
element. Id. at 296; see also Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex.
1992) (discussing Corbin); Padilla v. Wal-Mart Stores Tex., LLC, No. EP-19-CV-
4-KC, 2020 WL 1902535, at *5 (W.D. Tex. Jan. 31, 2020) (explaining that “for
Corbin to be applicable, the dangerous method identified must pose an ‘unusually
high risk’ of injury, not just a foreseeable one” and holding factfinder could
reasonably conclude that snack table setup that resulted in water on floor was an
unreasonably dangerous condition); Plainview Motels, Inc. v. Reynolds, 127
S.W.3d 21, 31 (Tex. App.—Tyler 2003, pet. denied) (holding evidence was
sufficient to conclude that it was or should have been readily apparent to store that
mirror display was unreasonably dangerous from the time created and such
evidence supported jury’s finding that store knew or should have known of the
unreasonably dangerous condition); Wal-Mart Stores, Inc. v. Diaz, 109 S.W.3d
584, 587 (Tex. App.—Fort Worth 2003, no pet.) (“The fact that the owner or
occupier of a premises creates a condition that poses an unreasonable risk of harm
may support an inference of knowledge. The jury must still find, however, that the
owner or occupier knew or should have known of the condition.”) (Emphasis
omitted.)
The supreme court has since cautioned that Corbin is an “exceptional case”
and “[o]rdinarily, an unreasonably dangerous condition for which a premises
owner may be liable is the condition at the time and place injury occurs, not some
antecedent situation that produced the condition.” Brookshire Grocery Co. v.
Taylor, 222 S.W.3d 406, 407-08 (Tex. 2006); see also Reyes v. City of Laredo, 335
S.W.3d 605, 609 (Tex. 2010) (“Awareness of a potential problem is not actual
knowledge of an existing danger.”); City of Dallas v. Thompson, 210 S.W.3d 601,
603 (Tex. 2006) (per curiam) (explaining that the “actual knowledge” required for
19
liability “is of the dangerous condition at the time of the accident, not merely of the
possibility that a dangerous condition can develop over time”). The facts in
Brookshire revolved around a self-service drink dispenser in a grocery store. 222
S.W.3d at 407. The Brookshire court distinguished Corbin because “[n]o evidence
suggested that the soft drink dispenser was set up in such a way that ice on the
floor was a greater danger than one would ordinarily encounter with such
dispensers, or that customers, though prone to spills, were any more prone around
this dispenser.” Id. at 408. The court then concluded that “[t]he only unreasonably
dangerous condition in [Brookshire] was the ice on the floor,” of which the store
had neither actual nor constructive knowledge. Id. at 409.
The facts of the present case are more akin to the situation encountered in
Corbin than that addressed in Brookshire. See Padilla, 2020 WL 1902535, at *5-6
(discussing how to analogize to and distinguish between Corbin and Brookshire).
As mentioned above, although there was no evidence that any Randalls employee
visually observed any liquid on the spot where Mohammadi fell prior to her fall,
considering the evidence and reasonable inferences therefrom in the light most
favorable to Mohammadi, there was at least some evidence Randalls had actual
knowledge of an unreasonably dangerous condition at the time and place of
Mohammadi’s fall. We know from Wilmore’s testimony that Randalls required its
employees to place damaged items in an open wire cart immediately adjacent to a
heavily trafficked walkway and that if a leaking product was placed in that cart, the
liquid would drip to the floor in that area. It can also be reasonably surmised from
the surveillance video and accompanying testimony of several witnesses that less
than eight minutes before Mohammadi slipped and fell, a Randalls employee
knowingly placed a leaking bag into the backmost part of the cart (the child seat),
immediately adjacent to the spot where Mohammadi slipped and fell. From this
20
evidence, a reasonable jury could conclude that Randalls had actual knowledge of
an unreasonably dangerous condition posing an unusually high risk of injury which
led directly to Mohammadi’s injury. In other words, the evidence could be
reasonably interpreted as demonstrating that a Randalls employee following
Randalls policy undertook a course of conduct or method of operation that created
a condition posing an unreasonable risk of harm that directly and foreseeably led to
Mohammadi’s injury and Randalls thus had “knowledge of the foreseeable harm of
some course of conduct or method of operation.” Corbin, 648 S.W.2d at 295.
Indeed, if anything, the immediacy of the foreseeable harm from the method
or operation was greater in this case than in Corbin. Placing a leaking bag in a
shopping cart beside a walkway would likely require less time to result in injury
than a grape display that would require not only time but the actions of third
parties, customers, in spilling grapes out of the display and onto the floor.
Mohammadi was entitled to a jury submission on actual knowledge. The
trial court erred in depriving her of that submission by bifurcating the knowledge
element for an invitee premises liability claim and conditioning the jury’s response
to the actual knowledge question on a positive response to the constructive
knowledge question. See Washington, 581 S.W.2d at 160; Thedford Crossing, 306
S.W.3d at 866; Varme, 881 S.W.2d at 881. We now must consider the proper
disposition of this appeal.
IV. Disposition
As noted above, Mohammadi suggests that the trial court’s bifurcation and
conditioning errors tainted the entire charge, requiring remand of not just the actual
knowledge submission but the constructive knowledge submission as well. We
agree. As discussed, we do not know why the jury answered the constructive
knowledge question in the way that it did. The jury did send out a note, stating
21
“[i]s it true that if we don’t get 10 [jurors] to answer #1 can we answer #2[?]” It is
not entirely clear what was behind the note, but it appears the jury was curious as
to whether they were supposed to answer the actual knowledge question in light of
their “no” response to the constructive knowledge question. As discussed above, it
is possible a jury could conclude that there was no constructive knowledge under
the circumstances presented because Randalls had actual knowledge of a
dangerous condition that it created. Indeed, the Texas Supreme Court has
explained that “[c]onstructive knowledge is a substitute in the law for actual
knowledge.” CMH Homes, 15 S.W.3d at 102; see also Black’s Law Dictionary 380
(defining “constructive” as “[l]egally imputed; existing by virtue of legal fiction
though not existing in fact”).
A new jury looking at the evidence in this case could reasonably conclude
that Randalls, through its employees, either actually knew about an unreasonably
danger condition or should have known. Given the trial court’s charge errors, it
would not be fair or reasonable to restrict Mohammadi to attempting to prove only
actual knowledge on remand. Accordingly, on remand, both actual and
constructive knowledge should be at issue.
We therefore sustain Mohammadi’s three issues, reverse the trial court’s
judgment, and remand for further proceedings.
/s/ Frances Bourliot
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Spain.
(Christopher, C.J., dissenting).
22