Linda KEETCH, Petitioner, v. The KROGER COMPANY, Respondent, 845 S.W.2d 262

On Application FOR Writ of ERROR to the Court of Appeals for the Fifth District of Texas OPINION COOK, Justice. The opinion of June 3,1992, is withdrawn and the motion for rehearing is overruled. This case presents questions of the appropriate jury submission of a case involving a slip and fall in a Kroger store. For the reasons set out below, we affirm the judgment of the court of appeals. Linda Keetch was in a Kroger store to buy a loaf of bread. Having selected a loaf of bread, Keetch was walking towards the checkout counter by way of the floral department.

Kroger displays and sells plants in its floral department. As part of the process of preparing the plants for sale, many of the plants are lightly sprayed with a product called Green Glo to shine the leaves. On the day Keetch was in the Kroger store, a number of plants had been sprayed on a desk in the floral department. Keetch slipped and fell when she was near the desk. Keetch argues that Green Glo overspray collected on the floor by the desk and created a slick spot. A witness who heard Keetch fall and saw her on the floor testified that there was a waxy type substance on the floor near the floral desk.

However, the Kroger employees working in the floral department on the day of the accident testified that they did not notice any slippery spots on the floor. Additionally, both Kroger employees who are assigned to work in the floral department testified that they had never noticed a slippery spot on the floor after spraying plant leaves. One of the employees had worked in the floral department for six years and the other had worked in the floral department for approximately three years. Keetch sought to hold Kroger liable under both a premises condition and a negligent activity theory.

The trial court submitted the case to the jury on only a premises condition theory. The jury found that there was a slippery spot on the floor which presented an unreasonable risk of harm to Keetch. However, the jury refused to find that Kroger knew or should have known of the slippery spot, so the trial court rendered a take nothing judgment. The court of appeals affirmed the judgment of the trial court. 845 S.W.2d 276. We affirm the judgment of the court of appeals.

Keetch argues the trial court erred: (1) when the court refused to submit Keetch’s negligent activity claim; (2) when the court submitted a question asking whether Kroger knew or should have known of the slippery spot on the floor rather than a question asking whether Kroger created the slippery spot; and (3) when the court refused to submit a broad form negligence question. I. Keetch argues that the trial judge erred by not submitting her negligent activity theory of liability to the jury.

Recovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity. See, e.g., Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985); Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627 (Tex.1976); Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1964). Keetch’s theory is that Kroger exposed its customers to the unreasonable risk of a fall by negligently conducting its plant spraying activity in an area of its store that was open to its customers.

A Kroger employee sprayed the plants sometime prior to her 7:00 pm quitting time. Keetch slipped on the floor and fell at approximately 7:30 pm. There was no ongoing activity when Keetch was injured. Keetch may have been injured by a condition created by the spraying but she was not injured by the activity of spraying. At some point, almost every artificial condition can be said to have been created by an activity. We decline to eliminate all distinction between premises conditions and negligent activities. The trial court properly did not submit a negligent activity theory of liability on these facts. II.

We stated the elements of a premises liability cause of action in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983). The elements are:

(1) Actual or constructive knowledge of some condition on the premises by the owner/operator;

(2) That the condition posed an unreasonable risk of harm;

(3) That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and

(4) That the owner/operator's failure to use such care proximately caused the plaintiff’s injuries. Corbin, 648 S.W.2d at 296; Hernandez v. Kroger Co., 711 S.W.2d 3, 4 (Tex.1986). In this case, the trial court submitted a question based on Texas Pattern Jury Charge 61.02 that incorporated the Corbin elements. The first element, actual or constructive knowledge of some condition on the premises by the owner or operator, is the key point for this case. Keetch argues that if Kroger created the condition then Kroger is charged with knowledge of the condition as a matter of law. Keetch’s argument is incorrect.

Keetch’s theory is supported by a series of court of appeals opinions. The approach of these courts of appeals is that an owner or occupier has sufficient knowledge of a condition to be liable for the injuries caused by the condition if the plaintiff proves the defendant: (1) put the foreign substance on the floor; or (2) knew that it was on the floor and negligently failed to remove it; or (3) that the foreign substance was on the floor so long that it should have been discovered and removed in the exercise of ordinary care. Robledo v.

Kroger Co., 597 S.W.2d 560, 560 (Tex.App.—Eastland 1980, writ ref'd n.r.e.) (numbers added); see also cases cited in note 3, supra. Keetch relies on the first of the three alternatives. However, none of the court of appeals opinions we have been directed to or have located rely on the first alternative to establish liability. The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge. However, the jury still must find that the owner or occupier knew or should have known of the condition. Corbin, 648 S.W.2d at 296.

Making the inference as a matter of law is improper unless knowledge is uncontroverted. Kroger denied knowledge of the condition so the inference of knowledge could not be made as a matter of law. Three of our cases are particularly instructive on the determination when knowledge may be inferred from the creation of a condition. First, in Corbin, Corbin was injured when he slipped on a grape that had fallen from a self-service grape display. Safeway admitted that at the time Corbin fell it had actual knowledge of the unusually high risk of harm associated with its grape display. Corbin,' 648 S.W.2d at 296.

The court rejected Safeway’s argument that Safeway was held to a lower standard if a customer, rather than a Safeway employee, actually knocked a grape off of the display. The Corbin court held that Safeway’s knowledge of the unusually high risk of harm associated with the self-serve display satisfied the knowledge requirement. Safeway did not have to know that a particular grape was on the floor at a particular time because it knew that the grapes would be on the floor due to the nature of the display. Second, in Coffee v. F. W.

Woolworth Co., we addressed a premises liability case where there was no direct evidence that Woolworth knew of the dangerous condition. 536 S.W.2d 539 (Tex.1976). After the court of appeals affirmed a judgment non obstante verdicto for Woolworth, we reversed both courts, holding that the jury could have inferred knowledge on two grounds. First, knowledge could have been inferred because of the length of time that the condition existed.

Second, we held that the jury could reasonably infer that Woolworth had actual knowledge of the dangerous condition because store employees were working on the display stand which caused the injury. The hazard was obvious to the store employees working on the display. The fact that Woolworth created the condition was circumstantial evidence of knowledge. This is very different from establishing knowledge as a matter of law when the store owner or operator creates a condition. Third, Seideneck v.

Cal Bayreuther Associates, was a premises liability case where Cal Bayreuther Associates created the condition that caused Seideneck’s injury. 451 S.W.2d 752 (Tex.1970). Cal Bay-reuther operated a showroom in the Trade Mart in Dallas. Seideneck was in the showroom and tripped on a throw-rug that was under a display table. Cal Bayreuther had placed the rug under the table. However, we held that there was no evidence that Cal Bayreuther knew the rug presented an unreasonable risk of harm.

Proof that the premises owner or occupier created a condition which poses an unreasonable risk of harm may constitute circumstantial evidence that the owner or occupier knew of the condition. However, creating the condition does not establish knowledge as a matter of law for purposes of premises liability. The trial court properly submitted the question asking whether Kroger knew or should have known of the condition. III. The trial court submitted a jury question based on Texas Pattern Jury Charge 61.-02. This question properly sets out the Corbin elements for a premises liability case.

Keetch argues that the submission is improper because it is not in broad form. Texas Rule of Civil Procedure 277 mandates broad form submission “whenever feasible.” Accompanied by appropriate instructions, a general negligence question such as Pattern Jury Charge 66.04 is a correct broad form premises liability question. See Parker v. Highland Park, 565 S.W.2d 512, 519 (Tex.1978) (abolishing doctrine that the occupier has no duty to warn or protect invitees when dangerous condition is open and obvious; replaced no-duty rule with ordinary negligence principles).

In Corbin, we held that general negligence principles in a premises liability case are stated in

Section 343 of the Restatement Second of Torts (1965). 648 S.W.2d at 295. Corbin stated the principles of

Section 343 as four elements. Therefore, appropriate instructions in a premises liability case must incorporate the. four Corbin elements. Hernandez, 711 S.W.2d at 4; Corbin, 648 S.W.2d at .295-96. One formulation of a negligence definition incorporating the Corbin standard was affirmed by the Eleventh Court of Appeals in Prudential Insurance Company of America v. Henson, 753 S.W.2d 415 (Tex.App.—Eastland 1988, no writ).

The trial court in Prudential submitted the following: NEGLIGENCE by an owner or occupier of a premises is the failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the occupier knows about or in the exercise of ordinary care should know about. An owner or occupier’s negligence depends on whether he acted reasonably in light of what he knew or should have known about the risks accompanying a premises condition. 753 S.W.2d at 416. Prudential demonstrates the feasibility of submitting premises liability questions in broad form.

However, this Court recommends the following instructions accompany Texas Pattern Jury Charge 66.04 in the submission of a premises liability case involving an invitee. “Negligence,” when used with respect to an owner or occupier of a premises, means failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier knows about or in the exercise of ordinary care should know about. “Ordinary care,” when used with respect to an owner or occupier of a premises, means that degree of care which would be used by an owner or occupier of ordinary prudence under the same or similar circumstances.

In this case, we need not decide whether failure to submit in broad form was reversible error because Keetch did not provide the trial judge with any indication that her complaint was with the trial court’s failure to submit in broad form. Error in the charge must be preserved by distinctly designating the error and the grounds for the objection. Tex.R.Civ.P. 274; Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex.1987). Keetch first complained of the trial court’s failure to submit in broad form in her application for writ of error to this court.

Because there was not a timely objection, Keetch did not preserve error, if any, in the failure to submit in broad form. IV. We affirm the judgment of the court of appeals. HECHT, J., files a concurring opinion joined by PHILLIPS, C.J., and CORNYN, J. MAUZY, J., files a dissenting opinion joined by DOGGETT and GAMMAGE, JJ. . Keetch argued to the court of appeals: "Our courts have long recognized a distinction between injuries caused by a condition of the premises and those caused by an activity. In the instant case Plaintiff alleged a cause of action under both theories.” (citation omitted).

In this court, Keetch argued her negligent activity theory under point of error 4. . The relevant questions submitted by the court were: Question 1: On the occasion in question, was there a slippery spot in the Floral Department on Kroger's floor that presented an unreasonable risk of harm to Linda Keetch? If you have answered Question 1 "Yes," and only in that event, then answer Question 2. Question 2: Did Kroger know, or in the exercise of ordinary care should it have known, that the slippery spot, if any, was on the floor? If you have answered Question 2 "Yes,” and only in that event, then answer Question 3.

Question 3: Was Kroger's failure to remove the slippery spot, if any, negligence? If you have answered Question 3 "Yes,” and only in that event, then answer Question 4. Question 4: Was that negligence a proximate cause of the occurrence in question? . See, e.g., Texas Farm Products Co. v. Stock, 657 S.W.2d 494, 502 (Tex.App.—Tyler 1983, writ ref'd n.r.e.); Johnson v. Kroger, Inc., 623 S.W.2d 479, 480-81 (Tex.App.—Corpus Christi 1981, no writ); Robledo v. Kroger Co., 597 S.W.2d 560, 560 (Tex.Civ.App.—Eastland 1980, writ ref'd n.r.e.); Foodway, Inc. v.

Lopez, 480 S.W.2d 227, 228 (Tex.Civ.App.—El Paso 1972, no writ); H.E. Butt Grocery Co. v. Kirkwood, 384 S.W.2d 790, 791 (Tex.Civ.App.—Corpus Christi 1964, no writ); Great Atlantic & Pacific Tea Co. v. Giles, 354 S.W.2d 410, 412 (Tex.Civ.App.—Dallas 1962, writ ref'd n.r.e.); Sherwood v. Medical & Surgical Group, Inc., 334 S.W.2d 520, 521 (Tex.Civ.App.—Waco 1960, writ refd); R.R. Beard v. Henke & Pillot, Inc., 314 S.W.2d 844, 845 (Tex.Civ.App.—Beaumont 1958, no writ); H.E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501, 502 (Tex.Civ.App.—San Antonio 1949, writ ref'd n.r.e.). .See, e.g., Coffee v. F.W.

Woolworth Co., 536 S.W.2d 539 (Tex.1976); Seideneck v. Cal Bayreuther Assoc., 451 S.W.2d 752 (Tex.1970). . See supra note 2 for .the text of the relevant portion of the jury charge. . PJC 66.04 Premises Liability — Plaintiff Is Invitee Did the negligence, if any, of those named below proximately cause the [occurrence] [injury] [occurrence or injury] in question? Answer “Yes" or “No" for each of the following: Don Davis - Paul Payne - 3 State Bar of Texas, Texas Pattern Jury Charge 66.04 (1990). . See Corbin, 648 S.W.2d at 295-96; Prudential Ins.

Co. of America, 753 S.W.2d at 416; 3 State Bar of Texas, Texas Pattern Jury Charge 65.01, 65.02 (1990). These instructions should be accompanied by a definition of proximate cause such as Texas Pattern Jury Charge 65.03 (1990).