Alice & Lloyd Kofahl v. Randall's Food & Drugs, Inc., f/d/a Tom Thumb Food & Drug--Appeal from 44th District Court of Dallas County

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Laws-info.com » Cases » Texas » 10th District Court of Appeals » 2004 » Alice & Lloyd Kofahl v. Randall's Food & Drugs, Inc., f/d/a Tom Thumb Food & Drug--Appeal from 44th District Court of Dallas County

State: Texas

Court: Texas Northern District Court

Docket No: 10-02-00053-CV

Case Date: 10/27/2004

Plaintiff: Kayla Adair

Defendant: The State of Texas--Appeal from 145th District Court of Nacogdoches County

Preview:Alice & Lloyd Kofahl v. Randall's Food & Drugs, Inc.,
f/d/a Tom Thumb Food & Drug--Appeal from 44th
District Court of Dallas County
MAJORITY | MAJORITY
IN THE
TENTH COURT OF APPEALS
No. 10-02-00053-CV
Alice AND Lloyd Kofahl,
Appellants
v.
Randall's Food & Drugs, Inc.,
fORMERLY D/B/a Tom Thumb
Food & DrugS,
Appellee
From the 44th District Court
Dallas County, Texas
Trial Court # DV00-02808-B
Opinion
Alice and Lloyd Kofahl filed this slip-and-fall case against Randall s Food & Drugs, formerly dba Tom Thumb Food
& Drugs, after Alice slipped in an unidentified liquid on the grocery s floor, fell, and broke her hip. The trial court
granted Randall s no-evidence summary judgment motion which alleges that the Kofahls can produce no evidence that
Randall s had actual or constructive knowledge of the spilled liquid.
The Kofahls contend in four issues that the court erred by granting the summary judgment because: (1) Randall s can
be held liable under the Corbin rule due to inadequate safety policies and procedures regardless of whether it had
actual or constructive knowledge of the spill; (2) Randall s created unreasonably dangerous premises by failing to have
adequate policies and procedures; (3) they presented more than a scintilla of evidence that the spill had been on the
floor long enough to charge Randall s with constructive knowledge; and (4) they should not be required to prove
actual or constructive knowledge under the facts of this case. The Kofahls contend in an additional issue that the court
should have permitted further discovery regarding Randall s policies and procedures.
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Randall s contends in a cross-issue that, regardless of the merits of Alice s claim, the judgment must be affirmed as to
Lloyd because the Kofahls have not presented a separate issue challenging the judgment with respect to Lloyd s claim.
Because the Kofahls presented more than a scintilla of evidence that the liquid had been on the floor long enough to
give Randall s constructive knowledge of its presence and because Randall s did not present an independent ground
for summary judgment on Lloyd s claim, we will reverse and remand.
CONSTRUCTIVE KNOWLEDGE
The Kofahls contend in their third issue that they presented more than a scintilla of evidence that the liquid had been
on the floor long enough to charge Randall s with constructive knowledge of its presence. Under settled premises
liability law, if the premises owner did not place the substance in question on the floor and did not have actual
knowledge of its presence, the plaintiff must establish that it is more likely than not that [the substance was on the
floor] long enough to give the premises owner a reasonable opportunity to discover it. Wal-Mart Stores, Inc. v. Reece,
81 S.W.3d 812, 814 (Tex. 2002).
Alice provided deposition testimony that the edges of the large puddle of liquid she slipped in were very tacky and
gummy as if the puddle was starting to dry up. Although our research has not disclosed any recent cases addressing
this type of evidence, it has been held that this type of testimony will support a finding that a liquid on the floor has
been there for a sufficient length of time to charge the premises owner with constructive knowledge of its presence.[1]
See Kroger Stores, Inc. v. Hernandez, 549 S.W.2d 16, 16-17 (Tex. Civ. App. Dallas 1977, no writ); Furr s, Inc. v.
McCaslin, 335 S.W.2d 284, 286-87 (Tex. Civ. App. El Paso 1960, no writ); Furr s, Inc. v. Bolton, 333 S.W.2d 688,
689-90 (Tex. Civ. App. El Paso 1960, no writ). Even those these decisions are not recent, more recent decisions of the
Supreme Court seem to affirm their continuing validity. See e.g. Reece, 81 S.W.3d at 817 (affirming judgment in part
because there was no evidence concerning the condition of the spilled liquid that might indicate how long it had been
there ); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 937 (Tex. 1998) (affirming judgment in part because there
was no evidence that the dirt on the macaroni salad had dried, suggesting that it had been there for a prolonged period
of time ).
Randall s cites a number of cases to support its contention that Alice s testimony constitutes no more than a mere
scintilla of evidence to establish constructive knowledge. See Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162
(Tex. App. Texarkana 1998, no pet.); Safeway Stores, Inc. v. Harkless, 601 S.W.2d 534 (Tex. Civ. App. Tyler 1980,
writ ref d n.r.e.); Robledo v. Kroger Co., 597 S.W.2d 560 (Tex. Civ. App. Eastland 1980, writ ref d n.r.e.); Franklin v.
Safeway Stores, Inc., 504 S.W.2d 514 (Tex. Civ. App. Dallas 1973, writ ref d n.r.e.); Furr s Supermarkets, Inc. v.
Arellano, 492 S.W.2d 727 (Tex. Civ. App. El Paso 1973, writ ref d n.r.e.).
Unlike the Kofahls, the plaintiffs in most of the cases cited by Randall s presented evidence of a liquid on the floor but
failed to present any evidence that the liquid had begun to dry. See Richardson, 963 S.W.2d at 164-65 & n.1; Harkless,
601 S.W.2d at 537-38; Robledo, 597 S.W.2d at 560. In some of the cases cited, the plaintiffs presented evidence that
the liquid was dirty or had shopping cart tracks running through it. See Harkless, 601 S.W.2d at 537-38; Robledo, 597
S.W.2d at 560. However, this type of evidence has consistently been considered inadequate to establish constructive
knowledge. See Gonzalez, 968 S.W.2d at 937; Harkless, 601 S.W.2d at 537-38; Robledo, 597 S.W.2d at 560-61.
In Franklin, the plaintiff testified that she slipped in a dry syrupy looking substance. 504 S.W.2d at 517. The court
concluded that this testimony was inadequate to establish constructive knowledge because it did not account for the
fact that the substance may have been dry and syrupy when it spilled. Id. (citing Bolton, 333 S.W.2d at 690). Here
however, Alice testified that the liquid in which she slipped and fell was drying around the edges, not that it was the
same consistency throughout. See Bolton, 333 S.W.2d at 690.
For the foregoing reasons, we conclude that the authorities relied on by Randall s do not apply to the facts of this case.
Thus, we hold that the Kofahls presented more than a scintilla of evidence to show constructive knowledge. See
Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003) (nonmovant must produce more than a
scintilla of evidence to defeat no-evidence summary judgment motion).
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Accordingly, we sustain the Kofahls third issue.
BECAUSE RANDALL S DID NOT ASSERT AN INDEPENDENT GROUND
FOR SUMMARY JUDGMENT ON LLOYD S CLAIM, WE WILL
REVERSE THE JUDGMENT ON LLOYD S CLAIM AS WELL
Randall s contends in its sole cross-issue that, notwithstanding our disposition of the Kofahls third issue, we must
affirm the judgment as to Lloyd s claim for loss of consortium because the Kofahls have not presented a separate issue
on appeal challenging the summary judgment ground addressed to [Lloyd s] claims.
[W]hen an appellant does not properly challenge each independent ground asserted for summary judgment as to a
claim, the claim will be affirmed. City of Glenn Heights v. Sheffield Dev. Co., 55 S.W.3d 158, 163 (Tex. App. Dallas
2001, pet. denied); accord Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 493 (Tex. App. Fort Worth 2002, no
pet.).
Randall s summary judgment motion states:
Defendant moves for summary judgment on the ground that there is no evidence of an essential element of Plaintiff
Alice Kofahl s negligence claim on which she will have the burden of proof at trial. Specifically, there is no evidence
regarding whether Defendant knew or should have known of a premises condition which posed an unreasonable risk of
harm to Mrs. Kofahl. Therefore, Defendant is entitled to judgment as a matter of law on this claim. Defendant further
moves for summary judgment on Plaintiff Lloyd Kofahl s loss of consortium claim on the ground that such claim is
wholly derivative of his wife s claim. Because her claim must fail as a matter of law, Mr. Kofahl s claim must
likewise fail.
From this quoted excerpt, it is apparent that Randall s ground for summary judgment as to Lloyd s claim depends
entirely on a favorable finding on its ground for summary judgment on the issue of constructive knowledge. Therefore,
it cannot be properly characterized as an independent ground for summary judgment. Cf. Wrenn, 73 S.W.3d at 493;
City of GlennHeights, 55 S.W.3d at 163. Accordingly, we overrule Randall s sole cross-issue.
Because of our disposition of these issues, we need not address the remainder of the issues presented. We reverse the
judgment and remand this cause to the trial court for further proceedings consistent with this opinion.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed October 27, 2004
[CV06]
[1] Notably, our research has disclosed no cases (recent or otherwise) concluding that such evidence is inadequate to
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show constructive knowledge.
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