Wal-Mart Stores, Inc. v. Villarreal, Araceli

NUMBER 13-99-027-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ WAL-MART STORES, INC., Appellant, v. ARACELI VILLARREAL, ET AL., Appellees. ___________________________________________________________________ On appeal from the 275th District Court of Hidalgo County, Texas. ___________________________________________________________________ O P I N I O N Before Chief Justice Seerden and Justices Hinojosa and Yañez Opinion by Chief Justice Seerden This is an appeal from a judgment awarding Araceli Villarreal, appellee, $98,000 in damages following a slip and fall incident. By four issues, Wal-Mart, appellant, challenges: (1) the trial court's grant of directed verdict in Villarreal's favor; (2) the sufficiency of the evidence to support findings of liability; and (3) the sufficiency of the evidence to support the damages finding. We affirm. Villarreal was employed by National Hair Care Center. Her employer leased space inside a Wal-Mart store in Hidalgo County, from which it operated. Villarreal worked in this leased space. While employed by National Hair Care Center, Villarreal was responsible, among other things, for trash removal. All tenants in the Wal-Mart store disposed of their trash in the Wal-Mart trash compactor, located in the shipping and receiving area of the Wal-Mart store. On January 20, 1995, within the scope of her employment, Villarreal took her store's trash to the Wal-Mart trash compactor. Upon entering the shipping and receiving area, Villarreal slipped and fell on what she believed was a water spill. There were no witnesses to this accident. Villarreal reported the accident and a Wal-Mart employee was instructed to clean up the spill. Villarreal and her husband subsequently brought this action against Wal-Mart, claiming its negligence caused her injuries. The case was tried to a jury. At the conclusion of Villarreal's case in chief, Wal-Mart moved for directed verdict on the issues of Villarreal's status as a licensee, her failure to present legally sufficient evidence of actual or constructive notice of the spill, and Villarreal's failure to use ordinary care for her own safety. The trial court denied the motion. After Wal-Mart presented its evidence, Villarreal moved for directed verdict as to her status as an invitee. The court granted this motion and submitted the case to the jury for findings of liability and damages. The jury found Wal-Mart negligent and awarded $98,000 in actual damages. Wal-Mart then moved for judgment notwithstanding the verdict, new trial, or remittitur. Those motions were overruled and this appeal ensued. By its first issue, Wal-Mart challenges the trial court's grant of directed verdict in Villarreal's favor on the issue of her status as an invitee. The duties owed by a landowner to one on its property depend upon the status of the person who is injured on the property. An "invitee" enters onto another's land at the express or implied invitation of the owner or operator for their mutual economic benefit or mutual advantage. See Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975); Long Island Owner's Ass'n, Inc. v. Davidson, 965 S.W.2d 674, 682 (Tex. App.--Corpus Christi 1998, pet. denied); Pinkerton's v. Manriquez, 964 S.W.2d 39, 45 (Tex. App.--Houston [14th Dist.] 1997, pet. denied); Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 165 (Tex. App.--Texarkana 1998, no pet.); Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 105 (Tex. App.--El Paso 1997, writ denied). By contrast, a "licensee" is privileged to enter and remain on the premises by the express or implied permission of the owner, but enters the land for his own convenience or on business for someone other than the owner. Texas-Louisiana Power Co. v. Webster, 91 S.W.2d 302, 306 (1936). In the absence of a relationship that inures to the mutual benefit of the entrant and the owner, an entrant is considered a licensee. Weaver v. KFC Mgmt, Inc., 750 S.W.2d 24, 26 (Tex. App.--Dallas 1988, writ denied). The question of whether an individual is a licensee or an invitee is a question of law. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). We review the trial court's grant of directed verdict de novo. Parks v. DeWitt County Elec. Co-op., Inc., 962 S.W.2d 707, 710 (Tex. App.--Corpus Christi 1998, no pet.). We consider the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. (citing Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex. 1976)). Thus, a directed verdict is "warranted only when the evidence conclusively demonstrates that no other verdict could be rendered." Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1986). In analyzing this situation, we look to the broad relationship between the parties. The evidence shows that Villarreal's employer leased its location from Wal-Mart. No contract was entered into evidence. Nevertheless, neither side disputes that a lease agreement exists. Such an agreement clearly inures to the mutual benefit of the parties. Moreover, both sides agree that as a condition of the lease agreement, National Hair Care Center was required to maintain its facility. Either expressly or implicitly, Wal-Mart provided National Hair Care Center with access to its trash compactor facility. Thus, as to National Hair Care Center and its employees or agents, the trash compactor facility was essentially a common area. As between a landlord and a tenant, once an area becomes a common area, the landlord owes the tenant the duty owed to an invitee. See Dickinson Arms-REO, L.P. v. Campbell, 4 S.W.3d 333, 336 (Tex. App.--Houston [1st Dist.] 1999, no pet. h.). Accordingly, we conclude that Villarreal was properly designated an invitee, or more precisely a "business invitee," by the trial court. Wal-Mart's first issue is overruled. (1) By its third issue, Wal-Mart argues that the trial court should have granted its motion for judgment notwithstanding the verdict or new trial because the evidence is legally and factually insufficient to support a finding of liability. Wal-Mart specifically contends that there is no evidence that it possessed constructive knowledge of "the condition" and that the existence of boxes in the trash compactor area does not constitute an unreasonable risk of harm. In reviewing a challenge to the legal sufficiency of the evidence supporting a jury's verdict, we only consider the evidence and inferences tending to support that verdict. This evidence must be viewed in a light most favorable to the verdict. We disregard any evidence or inferences to the contrary. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex. 1988); Soto v. Sea-Road Intern., Inc., 942 S.W.2d 67, 71 (Tex. App.--Corpus Christi 1997, pet. denied). So long as there is more than a scintilla of evidence that supports the verdict, the challenge must be overruled. Id. By contrast, in considering the factual sufficiency of the evidence, we examine all of the evidence, regardless of its effect on the reviewed verdict. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986); Soto, 942 S.W.2d at 71. We may reverse the challenged verdict only if it is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Superior Phones, Ltd. v. Cherokee Comm., Inc., 964 S.W.2d 325, 330 (Tex. App.--Corpus Christi 1998, pet. denied). A landowner's duty to an invitee requires him or her to exercise ordinary care to protect the invitee from risks of which the owner is actually aware and those risks of which the owner should be aware after reasonable inspection. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). To recover, a plaintiff must plead and prove that the landowner: (1) had actual or constructive knowledge of some condition on the premises; (2) that the condition posed an unreasonable risk of harm; (3) that the landowner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the landowner's failure to use such care proximately caused the plaintiff's injuries. Lopez, 929 S.W.2d at 3; Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). In her amended original petition, Villarreal alleged six bases of liability, namely: (1) Maintaining trash compactor area in a manner that foreseeably hid the danger of the spilled liquid on the ground; (2) Failing to provide reasonably safe lighting of said area; (3) Failing to notify, warn, advise, and/or instruct plaintiff of the dangerous condition; (4) Failing to give adequate and comprehensible warnings to plaintiff of the dangerous condition; (5) Failure to properly instruct and maintain the area in question to discover the dangerous condition; (6) Failure to apply non-skid mats in the area in question to prevent the dangerous condition. The jury was charged regarding the general negligence of either Villarreal or Wal-Mart in proximately causing her injuries, but not as to any specific causes. Wal-Mart does not contest the specificity of the jury charge in this respect. The record reflects that the trash compactor is located in the shipping and receiving area in the back of the Wal-Mart store in question. When asked to describe the area around the time of her accident, Villarreal recalled that merchandise was stacked up in the area and "trash was all around." She furthermore described the floor as very slick and that the shade from boxes made seeing what she described as "spots" on the floor difficult. Both her husband(2) and the manager of the hair salon, Maribel Quinones, corroborated these general observations regarding the shipping area, although neither was present at the time of this incident. Quinones, however, testified that lighting in the area was generally "normal." Villarreal stated that she fell in a spill of liquid approximately two feet by two feet. After getting back to her feet, she informed an assistant manager, Ray Rosales, of the spill and her fall. According to his testimony, Rosales was taken to the site of the accident where he observed a spill which he immediately had cleaned. Rosales did not dispute either that the spill existed or that the spill had caused Villarreal's fall. Villarreal informed Quinones of the accident as well. Quinones noted that the back of Villarreal's clothes were wet after the fall. Villarreal testified that on several occasions she had noticed that her sight was limited in the shipping and receiving area due to the shade from the stacked boxes. She stated that she had commented to "some of the people" in the shipping area that the situation might be dangerous and that nothing was ever done to remedy the situation. She could not recall the names of any Wal-Mart employees to whom she had addressed her concerns; however, according to Rosales, only Wal-Mart's employees and business invitees were permitted in the shipping and receiving area. Villarreal also testified that stains from liquid spills were present "all the time." She stated that she observed no warning signs or cones at the time of her fall. The jury was charged generally regarding Wal-Mart's failure to maintain the shipping and receiving area in a safe condition. Villarreal pleaded that any one of several dangerous conditions caused her fall. The evidence permitted the jury to conclude that Wal-Mart had actual or constructive knowledge that the overall condition of its shipping and receiving area had created visual difficulties and that spills often occurred there. It was within the province of the jury to conclude that the limited visibility, coupled with the frequency of spills in the area, posed an unreasonable risk of harm. The evidence also permitted the jury to conclude that, despite its knowledge of this risk, Wal-Mart took no action to eliminate it. Finally, the evidence supports the jury's finding that Wal-Mart's failure to eliminate or alleviate the risk proximately caused Villarreal's injuries. Accordingly, Wal-Mart's third issue is overruled.(3) By its fourth and final issue, Wal-Mart argues that the trial court improperly submitted a damage element for loss of earning capacity because there is no evidence or factually insufficient evidence to support an award of those damages. In the alternative, Wal-Mart argues that the award of $98,000 is grossly excessive and should be remitted. The court submitted the damages element in broad form, asking for an aggregate damages total for past medical care, physical pain and mental anguish, physical impairment, loss of earning capacity, and disfigurement. By its own admission, Wal-Mart challenges only the sufficiency of the evidence to support damages for loss of earning capacity. When the damages issue is submitted to the jury in broad form, it is difficult to ascertain with certainty what portion of the award is attributable to each element considered. Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 589 (Tex. App.--Corpus Christi 1993, writ denied). A meaningful review of the damages issue is also difficult. The only effective way a defendant can challenge a multi-element damages award on appeal is to "address each and every element and show that not a single element is supported by sufficient evidence." Id.; see also Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 922 (Tex. App.--Beaumont 1999, no pet. h.); Amelia's Automotive, Inc. v. Rodriguez, 921 S.W.2d 767, 771 (Tex. App.--San Antonio 1996, no writ). Some courts have concluded that the "failure to address an element of damages results in waiver of the sufficiency challenge." Brookshire Bros, 997 S.W.2d at 922; Price v. Short, 931 S.W.2d 677, 688 (Tex. App.--Dallas 1996, no writ); Haryanto v. Saeed, 860 S.W.2d 913, 922 (Tex. App.--Houston [14th Dist.] 1993, writ denied). This court has, instead, overruled such challenges if just one element is supported by the evidence. Zrubeck, 850 S.W.2d at 589. The record reflects that, without objection from Wal-Mart, Villarreal's exhibit number twenty-four was admitted and subsequently published to the jury. This exhibit details the aggregation of Villarreal's "Proved Up Medical Specials," and lists the full amount of medical expenses as $42,515.67. Villarreal also described in some detail the pain she felt in her back after the fall. She testified that she felt pain in her lower back, neck, and hand. Villarreal testified that the pain in her back persisted for some time and that treatment at a chiropractic center did nothing to eliminate it. She was recommended to Dr. Ruben Pechero, M.D., who determined that she had suffered a herniated disc at L5 of the lumbar spine. The herniated disc required surgery. On June 5, 1995, Villarreal underwent a lumbar laminectomy and fusion. The surgery left a long scar along Villarreal's lower back. She testified that she now has difficulty controlling her bladder and cannot have any more children. The surgery has resulted in permanent limitations to Villarreal's activities and restricts her employability. Wal-Mart presented no evidence to contradict any of Villarreal's claims. We find that the evidence was factually sufficient to support the jury's award on at least one of the damages elements. Because the evidence supports at least one of the elements of the broad form submission, we affirm the entire award. Thus, Wal-Mart's fourth issue is overruled. The judgment of the trial court is AFFIRMED. __________________________________ ROBERT J. SEERDEN, Chief Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this 23rd day of March, 2000. 1. By its second issue, Wal-Mart argues that "As a licensee Villarreal failed in her burden to raise a fact question on each of the required elements of her claim against Wal-Mart. Therefore, had the jury been instructed properly as to Wal-Mart's duty, there is no evidence to support a finding against Wal-Mart and the judgment must be reversed and rendered." Because we conclude that Villarreal was an invitee rather than a licensee, we overrule this issue. 2. According to his testimony, Cesar Villarreal accompanied his wife to the trash compactor on several occasions during her employment at this particular location. 3. By implication, Wal-Mart argues that Villarreal was aware of the possible risk, thereby mitigating its liability. However, because we have concluded that Villarreal was an invitee rather than a licensee, her knowledge of the risk is not relevant here.