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Keetch v. Kroger Co. - 845 S.W.2d 262 (Tex. 1992)

Rule:

The elements of a premises liability cause of action 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. 

Facts:

Plaintiff Linda Keetch was injured when she slipped and fell while shopping in a grocery store owned and operated by defendant The Kroger Company ("Kroger"). Keetch claimed that overspray of a chemical applied to plants sold in the store's floral department collected on the floor and created a slick spot where she fell. Keetch filed a lawsuit against Kroger in Texas state court seeking 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 that 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. Keetch appealed.

Issue:

Did the trial court err when it  refused to submit to the jury Keetch's negligent activity claim?

Answer:

No.

Conclusion:

The court affirmed the appellate court's judgment. The court ruled that the trial court properly refused to submit to the jury the negligent activity theory of liability on the facts presented. Under the premises liability theory, an inference of knowledge could not be made as a matter of law because Kroger denied having knowledge of the condition. The court did not need to decide whether failure to submit a jury question 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. The court concluded that because there was not a timely objection, Keetch did not preserve error, if any, in the failure to submit in broad form.

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