Opinion
No. 05-04-01464-CV
Opinion Filed August 16, 2005.
On Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. 03-3449-D.
Reverse and Render.
Before Justices O'NEILL, RICHTER, and FRANCIS.
MEMORANDUM OPINION
Appellants, The Kroger Co. individually and d/b/a Kroger Food Stores, Kroger Food Stores and Kroger Texas L.P. (hereafter Kroger), assert that a judgment based on a jury verdict awarding appellee Rebecca Guinn damages from a slip-and-fall should be reversed and verdict rendered in their favor because Guinn failed to provide sufficient temporal evidence to establish constructive notice and because the trial court erred in allowing admission of speculative evidence which caused the rendition of an improper judgment. We reverse and render judgment that Rebecca Guinn take nothing on her claims.
BACKGROUND
Rebecca Guinn was shopping in the Kroger store near her home when she walked through the floral department and her left foot "caught something" on the tile floor which caused her to slip or trip and fall. Landing hard on her left back side, she twisted her knee and injured her neck. Betty Hall, a customer nearby saw Guinn fall but did not see the cause. Both Guinn and Hall testified that following the fall, they noticed what Hall described as a "hole" in one of the twelve-inch square tiles in the area where Guinn fell. Guinn testified that on the day she fell she was not suffering any symptoms of a previously diagnosed muscular disorder.
Guinn suffers from myasthenia gravis, a disorder related to muscular dystrophy that attacks the muscles and can affect balance. The parties stipulated that the illness would not be asserted as a possible cause of the fall.
A cashier notified the store's assistant manager, Sharon Weems, of the fall and promptly offered assistance to Guinn. Weems helped Guinn to a nearby chair, and offered to pay for a medical exam to ensure she was not seriously injured. Per company policy, Weems filed an incident report in which she described the tile as "scuffed."
The following day, Guinn and a friend, Phyllis Rowe, returned to the store. Rowe advised Guinn to take pictures of the tile to protect her interests. Guinn also sought treatment from the provider suggested by Weems and for which Kroger had offered to pay. Following this initial treatment, Guinn sought care from other sources. Over the next three years, Guinn was treated for soreness in her knee and neck allegedly resulting from the fall.
Guinn filed suit against the Kroger Company for negligently causing her fall. A jury trial was held. The jury heard testimony from medical personnel, Guinn, Hall, Rowe, and Weems. Weems's testimony centered on her duties as an assistant manager, Kroger safety practices, and about what she believed was the source of what was referred to as the "divot" in the tile. The testimony mirrored deposition testimony in which Weems was asked to "guess" as to the source of the divot. Kroger objected to the guessing as being speculative but was overruled. Weems testified that the only thing she could think would cause the damage to the tile would be a burn from a buffing machine used by contract workers overnight.
After presentation of all the evidence, counsel for the Kroger Company moved for a directed verdict. The motion was denied. The jury returned a verdict for Guinn, awarding her $25,000 for medical expenses and past suffering; pre-judgment interest was added to the total. Kroger then moved for Judgment Non Obstante Verdicto which was denied. Kroger's motion for a new trial was also denied by the court.
In this appeal, Kroger asserts two issues: 1) that the trial court erred in failing to grant the motions for directed verdict, for Judgment Non Obstante Verdicto, and for a new trial because the evidence offered by Guinn for the time-notice element of her claim was not legally sufficient; and 2) the trial court abused its discretion in admitting speculative evidence that probably resulted in an improper verdict. Because Guinn relied upon the evidence challenged by Kroger to satisfy the time-notice requirement, we will address the admissibility of the evidence first.
Premises Liability
Premises liability claims by an invitee require the plaintiff to prove: (1) actual or constructive notice by the owner or occupier of the premises of a condition; (2) that the condition posed an unreasonable risk of harm; (3) that reasonable care was not exercised by the owner or occupier to reduce or eliminate the risk; and (4) that the failure to use such care proximately caused the injuries suffered. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). For constructive notice, the plaintiff must show that the condition existed long enough to provide a reasonable opportunity to discover it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 813 (Tex. 2002). In the absence of such a showing, premises liability cannot be found. Id. at 817.
While neither party disputed the tile's defect as the likely cause of Guinn's fall or that Kroger lacked actual notice of the defect, the parties did dispute whether Kroger had constructive notice of the defect. Weems testified store policy dictated frequent inspection of the floorspace for safety and aesthetic reasons. She further testified that such inspections included "walking the store" when a manager or assistant manager came on shift and subsequent walk-throughs during the shift. She testified that she did not notice the mark on her earlier inspections that day and that she likely would have because the tile "looked bad." Uncontroverted testimony from Weems placed the volume of the store at approximately 3000 visitors a day. Weems testified this figure was estimated on purchases made, and the actual traffic may have been greater. Weems testified that policy was to have the floors swept frequently, sometimes hourly, during the day to remove debris from the floors. Further, she stated that company policy mandated that employees report hazardous conditions to management so that the conditions could be removed or cordoned off. Guinn offered no contradictory testimony that the inspections occurred, that the area in which the fall occurred was swept, or that the defect was observed during cleaning and not reported. Guinn's evidence focused on the cause of the defect rather than on duration, relying on an inference that because the mark was the result of work done the night before, Kroger should have been aware of its existence.
Admissibility of Speculative Evidence
In its second issue, Kroger asserts the trial court abused its discretion by admitting speculative evidence that it contends resulted in rendition of an improper verdict. Kroger argues that a portion of testimony by Sharon Weems was speculative and therefore inadmissible. Because this speculation involved the timing of the damage to the tile, Kroger contends that it led to an improper verdict. Guinn contends that Weems's testimony about what caused the hole was offered only to prove that the dangerous condition existed long enough for Kroger to have constructive notice.
This Court reviews an evidentiary ruling by the trial court for abuse of discretion. Parker Plaza West, Ltd. v. Boniuk Investments, Ltd., 153 S.W.3d 729, 734 (Tex.App.-Dallas 2004, no pet.). "A trial court abuses its discretion when it acts without regard to any guiding rules or principles." Mitchell v. Bank of America, N.A., 156 S.W.3d 622, 626 (Tex.App.-Dallas 2004, pet. denied). Unless the erroneous evidentiary ruling probably caused an improper judgment, this Court will not overturn the ruling of the trial court. Id.
Testimony based on speculation is considered "incompetent evidence" and therefore cannot be used to support a judgment. General Motors v. Iracheta, 161 S.W.3d 462, 470-71 (Tex. 2005). Speculative testimony may not even support a jury finding when no objection has been made to its admittance. Id. Exclusion of other possibilities as the only support for an otherwise "bare opinion" does not make the evidence admissible. Id.
In both deposition and live testimony, Sharon Weems was asked about the possible source of the damage to the tile alleged to have caused Guinn's fall. Guinn first offered deposition testimony during which Weems was asked to guess as to a cause of the damage:
QUESTION: "I'm just curious. I'm trying to figure out what would be at a grocery store that would have caused that. Can you venture a guess for me?"
MS. PEAVLER: Your honor, we object that it calls for speculation as phrased, "Can you venture a guess?"
THE COURT: Can you venture a guess.
MR. JOHNSON: Your Honor, this is what we've been talking about. She goes on to say probably. We've talked about that.
THE COURT: Let's have a sidebar for a minute.
(Sotto voce discussion at the Bench, off the record)
MR. JOHNSON: Beginning Page 45, Line 3.
QUESTION: "In other words, these buffers —"
MS. PEAVLER: Your Honor, there's no precedent for what he's about to say.
THE COURT: Well, can I hear the question?
MS. PEAVLER: Sure.
The court heard the question and overruled the objection, but did grant a running objection for the line of questioning in the deposition. Kroger then offered additional deposition testimony from Weems including statements about her theory:
QUESTION: "I know you mentioned some theories about how this divot may have gotten on the tile. Do you know how it got there?"
ANSWER: "No."
QUESTION: "So when you say that it may have been a buffer, that's just a guess?"
ANSWER: "That is just a guess."
QUESTION: "Do you have any reason to know how long this divot was on the floor?"
ANSWER: "No, I don't."
QUESTION: "Do you have any guess as to how long it was on the floor?"
ANSWER: "No, I don't."
Later during direct examination while testifying for the defense, Weems could not confirm that the mark observed matched another buffer burn she had seen previously or whether a buffer could leave such a mark. Weems could only offer speculation based on elimination of other possibilities:
Q. Okay. Let me next ask you, do you know what caused that dent in the tile?
A. No.
Q. During your deposition, as you recall, you were asked to speculate as to what a possible cause would be. Do you remember that?
A. I remember that.
Q. And you mentioned a buffer, right?
A. That's correct.
Q. Have you actually seen a burn caused by a buffer that you know — somebody said, `This is what a burn from a buffer looks like?'"
A. I've seen one but it didn't look like that.
Q. Okay. Did you ever confirm with any floor person, anyone else, as to whether a buffer could have caused that?
A. No.
Q. As you sit here today, do you know whether a buffer can make a mark like that?
A. I don't know.
Q. Okay. When you stated that perhaps it was a buffer, was that a guess, or was it based on personal knowledge?
A. When I stated that perhaps it was a buffer, I was taking a guess.
Guinn offered no other evidence as to the cause of the mark. Additionally, Guinn relied on testimony from Weems that use of buffering equipment occurred only at night to establish an inference that the damaged occurred the night prior to Guinn's fall.
The trial court erred in admitting the speculative testimony of Sharon Weems regarding the buffer as the cause of damage to the tile over Kroger's objections. Testimony based solely on speculation and conjecture is incompetent. See General Motors Corp. 161 S.W. 3d at 470-71 (citing a line of cases establishing that speculative testimony is incompetent). The testimony allowed the jury to make an inference that the damage to the tile occurred the night prior to Guinn's fall, thereby establishing constructive notice on the part of Kroger, an essential element of Guinn's claim. While the jury was free to weigh Weems's credibility on store policies regarding safety, the jury should not have been given the opportunity to weigh her speculative testimony regarding the source of the divot. Without the speculative testimony, the jury could not make the necessary inference, thus Guinn failed to establish a required element of her claim. Therefore, we conclude the admission of the speculative evidence probably caused the rendition of an improper verdict. Accordingly, we sustain Kroger's second issue.
Insufficiency of Evidence
In its first issue, Kroger asserts the trial court erred in failing to grant motions for directed verdict, judgment non obstante verdicto, and for new trial because of legally insufficient evidence concerning the length of time the alleged defect was present. Kroger argues that Guinn offered no evidence of how long the defect existed to show constructive notice because the rules of evidence bar speculative evidence, and that any evidence that Kroger should have known of the alleged hazard amounts to a mere scintilla.
In reviewing legal sufficiency of evidence, this Court considers only evidence and inferences tending to support the challenged findings and disregard all evidence and inferences to the contrary. Lisanti v. Dixon, 147 S.W.3d 638, 642 (Tex.App.-Dallas 2004, no pet.). But, "[w]hether a reviewing court begins by considering all the evidence or only the evidence supporting the verdict, legal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 48 Tex.Sup.Ct.J. 848, 863 (June 10, 2005). Incompetent evidence is legally insufficient to support at judgment. Id. at 852. We will sustain a no evidence issue if "(a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove that fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact." Stewart v. Sanmina Texas L.P., 156 S.W.3d 198, 205 (Tex.App.-Dallas 2005, no pet.).
Guinn offered no evidence to contradict Weems's testimony regarding actual practices relative to Kroger's policies. We have concluded Weems's speculative testimony that a buffer used by the overnight cleaning crew damaged the tile should not have been admitted. Guinn offered no other evidence about when the alleged damage occurred. The failure of Guinn to provide temporal evidence is fatal to a finding of constructive notice which is a required element for Guinn's recovery. There is no evidence to support a finding that the mark was present for a time sufficient enough to place Kroger on notice and take corrective action. Accordingly, we sustain Kroger's first issue.
CONCLUSION
We conclude the trial court erred in admitting the speculative testimony regarding the source of damage to the tile and the time it occurred. Because this testimony was the only evidence to support an essential element of Guinn's claim, the admission of the evidence probably caused rendition of an improper judgment. When there is no evidence to support a vital fact, a directed verdict is appropriate. Sherman v. Merit Office Portfolio, Ltd., 106 S.W.3d 135, 139 (Tex.App.-Dallas 2003, pet. denied). The trial court erred by not granting a directed verdict and erred again in denying the motion for judgment non obstante verdicto because the directed verdict would have been proper. See Tex. R. Civ. P. 301. Accordingly, we reverse the judgment of the trial court and render judgment that Guinn take nothing on her claims.