H.E. Butt Grocery Co. v. Warner

¶1concurring.

¶2I concur in the judgment of the majority but not its reasoning. I cannot agree with the majority’s conclusion that the evidence makes it “undisputed that she was injured by a condition of the premises ... rather than a negligently conducted activity.” At 259. The two are not separate and distinct theories of recovery. Both the premises-liability basis for recovery and the negligent-activity basis are negligence causes of action. I agree with the dissenting opinion that absent special exceptions the plaintiff’s petition must be construed liberally in favor of the pleader. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). The Warners’ pleadings, however, even when reasonably construed in their favor, did not give fair notice that they were asserting a negligent activity theory in the alternative to their premises liability theory. The negligent activity theory was not tried by implied consent because the evidence to support it also supported the premises liability theory expressly plead. See generally Tex. R.Civ.P. 67. The Warners’ pleadings reasonably supported only the premises liability negligence grounds, on which the jury found against them. I therefore concur in the majority's result but not its reasoning.

¶3dissenting.

¶4Torts professors, revise your syllabi. The court today recognizes a new, distinct cause of action that must be plead as an independent claim: negligent failure to pre-bag chickens.

¶5Early common law required that a plaintiff search a register of writs for a “form of action” that fit the particulars of the complaint; if there was none, or if the plaintiff chose the wrong one, the king’s court would provide no remedy at all.1 Today the majority tells Tami Warner that she may not submit her claim to the jury because she chose the wrong form. Her complaint about the unbagged chickens is rendered a nullity on the reasoning that it is too peculiar to fall within a general claim of premises liability, and too vaguely plead to permit consideration on a separate basis. Evidently, the complaint is actionable only if specifically plead as an independent tort.

¶6*261The majority opinion defies modern rules of pleading, which require only that a plaintiff put the defendant on notice of the claim involved. Tex.R.Civ.P. 47(a) (an original pleading setting forth a claim of relief shall contain “a short statement of the cause of action sufficient to give notice of the claim involved”); Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982) (in the absence of special exceptions a petition must be construed liberally in favor of the pleader). Warner’s pleadings accomplished no less. H.E.B. did not specially except to the form of the pleadings and did not object at trial when Warner pursued her premises liability theory on the basis of the failure to bag. The majority acknowledges that the petition asserted a claim of negligence, and articulated a theory of premises liability. Still, it finds the pleadings deficient.

¶7This retrograde analysis runs counter not only to modern tenets of procedure, but also to this court’s plainly stated determination that “an invitee’s suit against a store owner is a simple negligence action.” Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983) (citing Rosas v. Buddies Food Store, 518 S.W.2d 534, 536-37 (Tex.1975); Parker v. Highland Park, Inc., 565 S.W.2d 512, 521 (Tex.1978)). Citing Corbin, the majority holds that Warner alleged only a claim based upon premises liability. The majority runs afoul of Cor-bin, however, when it defines the scope of a premises liability theory of recovery to exclude the complaint that a storeowner displayed goods in an unsafe condition. Corbinrecognized that a “storekeeper may be held liable for any dangerous condition about which he should be aware, not just for specific objects left on the floor by customers.” Id. at 298.

¶8Corbinalso recognized that a plaintiff asserting a negligence action against a storeowner need not establish “a specific set of facts or a specific breach of duty.” 648 S.W.2d at 295. Neither is the plaintiff required to plead a specific set of facts. In holding that “an invitee’s suit against a storeowner is a simple negligence action,” the court rejected special prerequisites for asserting the claim. Id. at 295.

¶9Further, Corbinexplicitly approves of a premises liability claim supported by evidence of a grocer’s failure to pre-bag a food item. The essence of the Corbincomplaint was that the remains of unbagged food resulted in injury — there grapes, here chicken. The court observed:

Safeway acknowledges that it took no other action, such as bagging the grapes ... to minimize the hazard. Under these circumstances, because reasonable minds could conclude that Safeway did not use reasonable care to take some preventive measure against a foreseeable harm, the question of its negligence was for the jury to decide.

¶10648 S.W.2d at 297 (emphasis added). This ruling is unequivocal — a claim of storeowner negligence subsumes a premises liability theory and may be grounded in evidence of the failure to pre-bag goods.

¶11Nevertheless, today’s opinion approves the trial court’s excision of the failure-to-pre-bag portion of the claim from the jury charge. The majority attempts to distinguish Corbinby characterizing Warner’s failure to pre-bag complaint as asserting a negligent activity theory rather than premises liability. This argument, like chickens, doesn’t fly. As in Corbin, Warner complains of the negligent manner of display — the unbagged condition of the birds — not the activity of displaying. Corbin expressly recognizes that this condition goes to show premises liability, not negligent activity. Had Warner complained that she was struck by a chicken being hurtled onto the display, the majority would be on point.

¶12The majority cannot distinguish Corbin; despite its normal mad rush to overrule precedent, it for some reason does not yet desire to overrule Corbin, so it simply constructs a parallel. We now have a grape rule and a chicken rule. The majority is pioneering the development of grocery law.

¶13Warner had no reason to anticipate this court’s'foray into the henhouse. In accordance with the mandate of Tex.R.Civ.P. 277, and the exhortations of this court, she tendered a broad-form question tracking the language of the pattern premises liabil*262ity question (PJC 66.04).2 The trial court instead submitted five granulated questions which, by their specificity, excluded the store’s failure to pre-bag from jury consideration. This error is not, as the majority contends, harmless. The jury answered the first of the questions affirmatively, concluding that the liquid on the floor posed an unreasonable risk of harm. In response to the second question, however, it did not find that H.E.B. knew or should have known of the presence of the liquid on the floor.3 The only purpose of this second question was to tie the liability determination to the store’s knowledge of a specific hazard, in direct violation of Cor-bin. Had the charge been submitted properly, in broad form, the jury would simply have been asked to determine whether the store’s negligence proximately caused Warner’s injury. See Corbin, 648 S.W.2d at 296.4 The jury might well have answered in the affirmative; for though H.E.B. may not have had actual knowledge of the liquid on the floor, it was aware of the manner in which its chickens were displayed. Thus, the granulated questions improperly restricted the scope of the knowledge determination, and effectively prevented Warner from prevailing on her claim.

¶14If there is evidence in the record that supports a request, failure to submit the question is reversible error. See Thomas v. St. Joseph Hospital, 618 S.W.2d 791, 795 (Tex.Civ.App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.) (citing Garza v. Alviar, 895 S.W.2d 821 (Tex.1965)). The record shows that Warner presented evidence supporting the argument that the store was unsafe due to the display of unbagged birds. The court of appeals correctly reversed the judgment of the trial court since it failed to submit the requested charge.

¶15Because Texas never adopted the old forms of action, “it makes no difference in what shape a plaintiff presents his cause of action, the courts will look to the substance of it, and not be controlled by the mere form in which it is set forth.” Rector v. Orange Rice Mill Co., 100 Tex. 591, 102 S.W. 402, 403 (1907). Here, Tami Warner is entitled to have the jury consider her claim that H.E.B. failed to display its goods in a safe manner. See Corbin, 648 S.W.2d at 297. I would therefore affirm the judgment of the court of appeals.

¶16Never “chicken” about twisting the law to accomplish its socially preferred result, the majority has today added yet another legal inconsistency designed to trap the victim.

¶17DOGGETT, J., joins in this dissenting opinion.