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In re Butt

Court of Appeals of Texas, Thirteenth District, Corpus Christi - Edinburg

May 9, 2016, Delivered; May 9, 2016, Filed

NUMBER 13-16-00132-CV


 [*458]  On Petition for Writ of Mandamus.

Relators, Charles Butt, Craig Boyan, Carmen Gellhausen, and Kevin Holguin, who are corporate officials for H.E.B. Grocery Company, L.P. ("H.E.B."), filed a petition for writ of mandamus in the above cause on February 26, 2016. Relators and H.E.B. are defendants in a premises liability case predicated on a slip-and-fall accident at an H.E.B. grocery store. Through this original proceeding, relators seek to compel the trial court to: (1) vacate its order denying relators' motion to dismiss under Texas Rule of Civil Procedure 91a; (2) grant their motion to dismiss; and (3) award them their costs and attorney's fees. See Tex. R. Civ. P. 91a (providing for the dismissal of "baseless" causes of action).2 We conditionally grant the petition for writ of mandamus.

I. Background

Arturo Garcia slipped and fell while shopping at a McAllen-area H.E.B. grocery store. He and his wife, Aurelia, sued H.E.B. for his injuries. In their fourth amended petition, the Garcias complained in two paragraphs of their petition that a wet floor created an unreasonably dangerous condition, that H.E.B. failed to use adequate methods to detect and remove foreign substances on its store floors, and that H.E.B. intentionally breached a duty to preserve the fluid Garcia purportedly slipped on, thereby justifying spoliation sanctions:

27. On the occasion in question, H.E.B. owed a duty to H.E.B.'s invitees, including Garcia, reasonably to inspect the store to discover dangerous conditions in the store which could harm H.E.B.'s invitees, including Garcia. H.E.B. breached such duty, by using an approach to inspecting the store which was known to H.E.B. not to identify timely and reliably the presence of foreign materials on the floor of the store. H.E.B. breached such duty, by choosing not to use computerized video surveillance, [**3]  or a comparably effective and financially feasible alternative means, to inspect the store to identify timely and reliably the presence of foreign materials on the floor of the store. Such breaches of duty by H.E.B. constituted negligence and gross negligence, which proximately caused Garcia's slip/fall incident and Plaintiffs' damages resulting from such incident which have been made subjects of this case.

28. On the occasion in question, H.E.B. owed a legal duty to Garcia, to preserve the fluid as evidence, because H.E.B. had reason to believe: (1) that it was reasonably likely that Garcia would assert a claim against H.E.B. for personal injuries, and (2) the fluid could be relevant to such a claim. H.E.B. intentionally breached such duty. H.E.B is therefore subject to the imposition of such sanction as the Court in its discretion determines to be appropriate, which may consist of either of the following sanctions, among others: (1) a ruling that H.E.B. is liable to Garcia, as a matter of law; or (2) an instruction to the jury, that it may assume that the fluid, had it not been destroyed by  [*459]  H.E.B., would have proven H.E.B.'s negligence on the occasion in question.

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495 S.W.3d 455 *; 2016 Tex. App. LEXIS 4868 **; 2016 WL 2726508



motion to dismiss, trial court, cause of action, mandamus, independent duty, attorney's fees, corporate officer, costs, reasonable care, allegations, orig, discovery, baseless, individually liable, corporate official, individual liability, prevailing party, mandamus relief, injured party, writ petition, employees, breached, tortious, lifted, floor

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Writs, Common Law Writs, Mandamus, Dismissal, Involuntary Dismissals, Failure to State Claims, Motions, Appellate Review, De Novo Review, Governments, Legislation, Interpretation, Courts, Rule Application & Interpretation, Discovery & Disclosure, Discovery, Torts, Negligence, Elements, Duty, Business & Corporate Law, Management Duties & Liabilities, Causes of Action, Negligent Acts of Directors & Officers, Premises & Property Liability, General Premises Liability, Duties of Care, Vicarious Liability, Employers, Business & Corporate Compliance, Contract Conditions & Provisions, Contracts Law, Contract Conditions & Provisions, Attorney Fees & Expenses, Basis of Recovery, Statutory Awards, Contracts Law, Remedies