                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 PAY AND SAVE, INC. D/B/A BIG 8                 §
 FOOD STORES,                                                   No. 08-12-00357-CV
                                                §
                             Appellant,                           Appeal from the
                                                §
 v.                                                             210th District Court
                                                §
                                                              of El Paso County, Texas
 COSME RAUL MARTINEZ,                           §
                                                                  (TC# 2011-1668)
                             Appellee.          §


                                          OPINION

       Appellant Pay and Save, Inc., doing business as Big 8 Food Stores (Big 8), appeals a jury’s

finding that its negligence proximately caused the injury of Appellee Cosme Raul Martinez, and its

award to Martinez of $8,000 as mental anguish damages. We reverse the award of past mental

anguish damages, render a take-nothing judgment as to the past mental anguish claim, and affirm

the remaining portions of the judgment.

                                         BACKGROUND

       In October 2009, Martinez had surgery on his back, and sometime between February and

March 2010, Martinez underwent surgery for a brain tumor. In March 2010, Rosaura Castro

became Martinez’s caregiver. On January 14, 2011, Martinez and Castro went shopping at Big 8
to buy some avocados. While shopping, Martinez stepped on a cucumber peel. In an effort to

prevent himself from falling, Martinez held onto some beer boxes for two to three minutes.

Martinez feared that if he fell down, the “surgery on [his] head could open up” and he would die.

As he held onto the box, Martinez saw a cucumber peel on the floor. Martinez testified that he

twisted his spinal column, back, and upper part of his body.

        Martinez filed a premises liability suit against Big 8, which proceeded to trial. After a jury

trial, the trial court entered judgment on the jury’s verdict in favor of Martinez, which included an

award of $8,000 for past mental anguish damages.

                                            DISCUSSION

        Big 8 presents two issues on appeal. In Issue One, Big 8 asserts the trial evidence is

legally insufficient to prove it had actual or constructive knowledge of the dangerous condition on

its premises which caused Martinez to slip. In Issue Two, Big 8 contends the evidence is legally

insufficient to support the jury’s award of mental anguish damages.

                                         Standard of Review

        A party attacking the legal sufficiency of an adverse finding on an issue on which it did not

have the burden of proof must demonstrate on appeal that no evidence supports the adverse

finding. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014). If the evidence

offered to prove a vital fact is no more than a scintilla, we will sustain a legal sufficiency challenge.

Id. Evidence that is so weak as to do no more than create a mere surmise or suspicion that the fact

exists, does not exceed a scintilla. See Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 29-30 (Tex.

2014)(citations omitted).

        In considering a legal sufficiency point, we review the evidence in the light most favorable


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to the verdict and indulge every reasonable inference that would support it. City of Keller v.

Wilson, 168 S.W.3d 802, 810 (Tex. 2005). Even if evidence is undisputed, it is the province of

the fact finder to draw from it whatever inferences it wishes so long as more than one inference is

possible. Id. at 821. But if the evidence allows only one inference, neither the trier of fact nor

the reviewing court may disregard it. Id. We are also mindful that the fact finder is the sole

judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. When

there is conflicting evidence, it is the province of the trier of fact to resolve such conflicts. Id. at

820. In every circumstance in which a reasonable trier of fact could resolve conflicting evidence

either way, the reviewing court must presume it did so in favor of the prevailing party, and

disregard the conflicting evidence in its sufficiency review. Id. at 821. If the evidence at trial

would enable reasonable and fair-minded people to differ in their conclusions, then the fact finder

must be allowed to do so. Id. at 822. So long as the evidence falls within this zone of reasonable

disagreement, we may not substitute our judgment for that of the fact finder. Id. The ultimate

test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded

people to reach the verdict under review. Id. at 827.

                                          Premises Liability

        The threshold question in a premises liability case, as with any cause of action based on

negligence, is the existence of and violation of a duty. Chappell v. Allen, 414 S.W.3d 316, 323

(Tex.App. – El Paso 2013, no pet.). The duty owed by a premises owner is determined by the

status of the complaining party at the time and place of injury. Scott & White Mem’l Hosp. v.

Fair, 310 S.W.3d 411, 412 (Tex. 2010); Chappell, 414 S.W.3d at 323.

        That Martinez is an invitee is undisputed by the parties. See Chappell, 414 S.W.3d at 323


                                                   3
(invitee enters the premises of another at owner’s or occupier’s express or implied invitation for

their mutual benefit). The elements of a premises liability cause of action when the injured party

is an invitee are: (1) actual or constructive knowledge of a condition on the premises by the

owner or occupier; (2) that the condition posed an unreasonable risk of harm; (3) that the owner or

occupier did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s

or occupier’s failure to use such care proximately caused the plaintiff’s injury. See CMH Homes,

Inc. v. Daenen, 15 S.W.3d 97, 99–100 (Tex. 2000)(invitee premises liability). An owner or

occupier owes an invitee the duty to keep the property safe and must use reasonable care to protect

the invitee from a condition on the land that creates an unreasonable risk of harm of which the

owner or occupier knew or by the exercise of reasonable care would have discovered. Id. at 101.

The core of the duty depends on actual or constructive knowledge of a dangerous condition that a

reasonable inspection would reveal, and an owner or occupier bears no liability “for deterioration

of its premises unless it knew of or by reasonable inspection would have discovered the

deterioration.” Id.

       To satisfy the notice element, a plaintiff must establish that (1) the defendant placed the

substance on the floor, (2) the defendant actually knew that the substance was on the floor, or (3) it

is more likely than not that the condition existed long enough to give the premises owner a

reasonable opportunity to discover it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.

2002)(citations omitted). The question of constructive notice requires analyzing the combination

of proximity, conspicuity, and longevity. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567

(Tex. 2006).

       Temporal evidence is the best indicator of whether the owner could have discovered and


                                                  4
remedied the condition. Brookshire Bros., 438 S.W.3d at 30; Reece, 81 S.W.3d at 816. What

constitutes a reasonable time for a premises owner to discover a dangerous condition will vary

depending upon the facts and circumstances presented, and proximity evidence will often be

relevant to the analysis. Reece, 81 S.W.3d at 816. An employee’s proximity to a hazard, with no

evidence indicating how long the hazard was there, merely indicates that it was possible for the

premises owner to discover the condition, not that the premises owner reasonably should have

discovered it. Id. Before liability can be imposed on the premises owner for failing to discover

and rectify, or warn of, the dangerous condition, there must be some proof of how long the hazard

was present. Id. However, an employee’s close proximity to a less conspicuous hazard for a

continuous and significant period of time may affect the jury’s consideration of whether the

premises owner should have become aware of the dangerous condition. Id.

                                             Analysis

       To show Big 8 had constructive notice of the cucumber peel on the floor, Martinez had to

prove that it is more likely than not that the condition existed long enough to give Big 8 a

reasonable opportunity to discover it. See Brookshire Bros., 438 S.W.3d at 30; Reece, 81 S.W.3d

at 814. Big 8 specifically complains that the evidence is legally insufficient to support the jury’s

finding that a dangerous condition existed long enough to charge it with constructive notice of the

condition. It argues that Martinez’s post-incident observations regarding the dirty floor and his

comment that he observed another slip mark indicating that “somebody had slipped before” are not

indicative of the time necessary to charge it with notice of the condition. Big 8 also contends that

its employee’s proximity to the hazard, without evidence indicating the duration of the hazard’s

existence, merely demonstrates that it was possible to discover the condition and fails to establish


                                                 5
that Big 8 should have discovered the hazard. We disagree.

A. Longevity

       With regard to longevity, the jury heard conflicting evidence regarding the condition of the

floor where Martinez slipped and the cucumber was found, whether the store floor had been swept,

and if so, when it was swept. Big 8’s Store Manager, Alfredo Garcia, stated that he arrived at

work at 6 a.m. on the morning of the incident. He described the produce section of the store as

being about 40 to 50 feet away from the area where the cucumber peel was found. Garcia

explained that a sweep log is kept to document when a sweep of the floor is performed, when the

sweep was finished, and who performed the sweep. In his capacity as a manager, it was Garcia’s

duty to verify that an employee who signs the sweep log actually performed the sweep. The

sweep log includes a space for Garcia to sign the log as verification of the sweep.

       The sweep log from the day of the incident was admitted into evidence. At the bottom of

the form is a statement that a signature entered on the form verifies a sweep of the entire floor

occurred by the named sweeper on the date and time indicated. The log also includes a column in

which the manager on duty may initial the fact that a sweep occurred, but none are signed. The

unverified sweep log includes entries representing that on the day of the incident “Alex Isais”

performed a store sweep from 7 a.m. to 7:15 a.m., 8:15 to 8:30 a.m., 9:30 to 9:48 a.m., and again at

11:15 to 11:30 a.m. The log also notes that Garcia had performed a store walk commencing at 10

a.m. and concluding at 10:15 a.m.

       After Martinez slipped, Garcia prepared a Customer Report of Accident in which he noted

that Martinez was “walking through [the] back aisle when he slipped on a cucumber peel in front

[of the] Miller Lite display[.]” On this report, Garcia entered the “time of day” as 11:46 a.m.


                                                 6
Garcia also prepared a Customer Accident Investigation report, in which he noted that the area was

last inspected or cleaned at 10:30 a.m. by Alexis Isais.1 Garcia agreed this notation indicates that

a store sweep had been performed one hour and fifteen minutes before Martinez’s incident.

Garcia later conceded that he had not verified the sweep log by signing it, and agreed that he could

have erred regarding the time when the area had last been inspected or cleaned because the sweep

log attached to the accident investigation report did not show that Garcia or any Big 8 employee

had performed an inspection at 10:30 a.m. The Customer Accident Investigation report also notes

that Garcia inspected the area after the incident at 11:47 a.m. On cross-examination, Garcia

testified that the area was actually swept at 11:15 to 11:30 a.m.

         Big 8 employee Maria Valencia testified that she had assisted in sweeping the store when

someone would go to lunch “or something.” Although Valencia recalled that it takes between 20

to 30 minutes to sweep the store, she did not recall how often Big 8 would clean the floor.

Valencia, an employee since 1998, explained that it is the store’s policy to pick up or clean an area

well when a spill or something dangerous is seen on the floor, and not to leave that area until it is

cleaned. When asked whether she remembered anyone sweeping the floor on the day Martinez

slipped, Valencia replied, “I do not remember that.”

         The jury also heard Martinez’s testimony that the area of the floor where he slipped was

very dirty, had dirt, and also had “[a]nother slip mark [where] somebody had slipped before.”

Martinez testified that he had no idea how long the skid marks had been present and did not see

anyone else make any skid marks.

         Castro, who was walking behind Martinez, did not see the cucumber peel before Martinez


1
  Garcia noted the difference between the two types of reports and explained, “The customer report of accident is what
the customer is telling me happened [and] the customer accident investigation is what I witnessed.”
                                                          7
slipped, did not know how long the cucumber peel had been present in the beer aisle, nor saw “how

it got there[.]” Castro, too, testified that when she looked at the area of the floor where Martinez

had slipped, “[Y]ou could see that there had been another slip there,” that the floor was dirty, and

“had dirt.” Castro identified in a photograph two smear marks she had observed on the floor

where Martinez slipped. Castro stated that it did not look like the store had been cleaned and that

she did not see anyone cleaning the store that day. Castro agreed that Martinez had not slipped in

the produce area but stated that she had observed pieces of broccoli, tomatoes, leaves, and cilantro

present on the floor in the produce area of the store.

B. Proximity

       Martinez presented evidence that one of Big 8’s employees was in close proximity to the

area prior to the incident. Martinez and Castro testified that after Martinez slipped, they observed

Valencia to be six or seven feet away from them, and that when they called to her, she came to

them and then called for assistance. Valencia, too, testified that she was only six to seven feet

from the location where Martinez slipped and was within view of that area when she was called

over. She stated that she had been labeling merchandise, for “[a]bout 15 minutes approximately

or better said I don’t remember.” Valencia, who had no vision problems, looked toward the floor

after she was summoned but did not inspect it, and she did not see anything before calling the store

manager through an intercom. When shown a photograph of the cucumber peel on the floor,

Valencia stated that she did not see “this spot on the floor” when she inspected the area but agreed

that the photograph showed “an obvious marking on the floor[.]” Valencia agreed that she had

stated during her pretrial deposition that she had seen a small scrape or mark on the floor that was

between the colors of green and yellow, which she described as “a small line” at trial. While both


                                                  8
within view of and within six to seven feet of the area where the incident occurred, Valencia did

not look to see if anything dangerous was on the floor during the 15-minute period and did not see

any cucumber peel before she was called over to the area of the incident.

C. Conspicuity

       Regarding the conspicuity of the hazard, Martinez testified that nothing obstructed his

vision but he did not see the cucumber peel before he stepped on it, did not know how the peel “got

there,” and did not know how long the peel had been present. Castro testified that she was

walking behind Martinez when he slipped and they then realized Martinez had slipped on a

cucumber peel located very far away from the produce. According to Castro, it was impossible

for her to see the peel until after Martinez slipped. Castro described the cucumber peel as “kind of

yellowish, like a beige color,” and “green, kind of yellowish,” and noted that the incident happened

“very far away from the produce.” Castro also noted that the peel was “kind of a little old.”

Valencia described the small scrape or mark on the floor as “[b]etween green and yellow” in color.

Store manager Garcia described the cucumber peel as “[a] dark green substance . . . about two- to

two-and-a-half inches long.” Having reviewed the evidence in the light most favorable to the

verdict and indulging every reasonable inference that would support it, and having credited

favorable evidence if reasonable jurors could and disregarded contrary evidence unless reasonable

jurors could not, we conclude Martinez presented more than a scintilla of evidence that, more

likely than not, the hazardous condition on Big 8’s floor existed long enough to give Big 8 a

reasonable opportunity to discover it, and that such evidence would enable reasonable and

fair-minded people to reach the verdict returned by the jury in this case. See Brookshire Bros.,

438 S.W.3d at 30; City of Keller, 168 S.W.3d at 827. Issue One is overruled.


                                                 9
                                  Past Mental Anguish Damages

       The jury returned a verdict awarding Martinez $8,000 as past mental anguish damages,

which the trial court entered in its judgment. In Issue Two, Big 8 contends Martinez presented no

evidence of compensable mental anguish because the evidence failed to show that Martinez

required any treatment for his anxiety and does not indicate a substantial disruption in Martinez’s

daily routine or a high degree of mental pain and distress.

       Even where a defendant’s conduct is merely negligent, “‘Texas has authorized recovery of

mental anguish damages in virtually all personal injury actions.’” City of Tyler v. Likes, 962

S.W.2d 489, 495 (Tex. 1997), quoting Krishnan v. Sepulveda, 916 S.W.2d 478, 481 (Tex. 1995).

However, in Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)(citations omitted), the

Texas Supreme Court held that mental anguish damages could not be awarded without either

direct evidence of the nature, duration, or severity of plaintiff’s anguish, thus establishing a

substantial disruption in the plaintiff’s daily routine, or other evidence of a high degree of mental

pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. See

also Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013). It is well-settled that there must be

both evidence of the existence of compensable mental anguish and evidence to justify the amount

awarded. See Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011); Bentley v. Bunton,

94 S.W.3d 561, 606 (Tex. 2002), quoting Saenz v. Fidelity & Guar. Ins., 925 S.W.2d 607, 614

(Tex. 1996). Mental anguish damages cannot be determined with mathematical precision but

only through the exercise of sound judgment. Bentley, 94 S.W.3d at 605. Even so, the jury

cannot simply pick a number and put it in the blank but must award fair and reasonable

compensation based upon the evidence. Saenz, 925 S.W.2d at 614.


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       When Martinez was asked to identify some of the acts he could perform immediately

before the incident that he could no longer perform, Martinez replied that he continued to suffer

pain in his back and shoulder as a result of the incident and can no longer do things that he could do

before such as walking to the store, moving around in his apartment, getting dressed, and move “a

little bit more without pain.” Castro testified Martinez’s physical condition has deteriorated and

that she now provides more care to Martinez such as assisting him to put on his socks and shoes,

and tying his shoelaces. Castro lends Martinez a hand both to arise and walk around his

apartment because he tips over and is always thinking he is going to fall. According to Castro,

Martinez does not go for walks as he did before and complains very often of pain.

       At trial, Martinez testified that he was very nervous and scared when he slipped and was

very worried about his spinal column, his ability to stand up, and a reopening of “the operation

[performed] on [his] head” and thought a fall would reopen the surgical wound on his head and kill

him. Martinez was specifically asked whether he had suffered mental anguish because of the

incident at Big 8. Martinez answered that he had so suffered, and described his past mental

anguish in terms of fear. He specifically testified that he is scared to go out at night and when

invited by his siblings and a male cousin to go out. Martinez testified that he does not know

whether that will change in the future. Castro stated that after the incident, Martinez is afraid to

go out to walk and is always looking down at the floor, thinking he is going to fall.

       The evidence presented in support of the jury’s past mental anguish award focused on fear

and anxiety regarding the slip at the store, walking and going out at night, and establishes that

Martinez needs additional assistance in putting on his shoes and socks and walking around his

house. However, this evidence fails to identify a specific “high degree of mental pain and distress


                                                 11
that is more than mere worry, anxiety, vexation, embarrassment, or anger” or to identify a

substantial disruption of Martinez’s daily routine. See Guerra, 348 S.W.3d at 232; Parkway Co.,

901 S.W.2d at 444; see Burlington Coat Factory Warehouse of El Paso, Inc. v. Flores, 951 S.W.2d

542, 548 (Tex.App. – El Paso 1997, no pet.)(evidence of brief marital split and necessity of placing

children in counseling was sufficient to show substantial disruption in plaintiff’s daily routine over

and above mere worry, anxiety, vexation, embarrassment, or anger); compare Fifth Club, Inc. v.

Ramirez, 196 S.W.3d 788, 797–98 (Tex. 2006)(plaintiff’s testimony that he was depressed,

humiliated, non-communicative, unable to sleep, angry, and suffered from headaches and

nightmares and that his daily activities and family relationships were detrimentally affected held to

be legally sufficient evidence of mental anguish); Bentley, 94 S.W.3d at 606-07 (plaintiff’s

testimony that he had lost sleep, had been embarrassed in his community, his family had been

disrupted, and his children distressed at school, coupled with evidence from friends that plaintiff

was depressed, that his honor and integrity had been impugned, and that his family had suffered

left no doubt that plaintiff had suffered mental anguish). Viewing the evidence in the light most

favorable to the verdict and indulging every reasonable inference that would support it, we are

unable to conclude that the existence of past mental anguish is supported by legally sufficient

evidence. See Guerra, 348 S.W.3d at 231; Bentley, 94 S.W.3d at 606; Saenz, 925 S.W.2d at 614;

City of Keller, 168 S.W.3d at 827. Issue Two is sustained.

                                          CONCLUSION

       We reverse the trial court’s award of $8,000 in past mental anguish damages to Martinez

and render judgment that Martinez take nothing on his claims for past mental anguish damages.

In all other respects, the trial court’s judgment is affirmed.


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                                           YVONNE T. RODRIGUEZ, Justice
December 12, 2014

Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J., not participating




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