











In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-02-00019-CV
____________

RICE FOOD MARKET, INC., Appellant

V.

RHONDA HICKS, Appellee




On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 99-57526




O P I N I O N
          In this premise liability suit, a jury found appellant, Rice Food Market, Inc.,
negligent and awarded appellee, Rhonda Hicks, $75,287.67 plus post-judgment
interest and costs.  In its first, second, and third points of error, Rice challenges the
legal and factual sufficiency of the evidence supporting the jury’s finding that it was
negligent.  In its fourth point of error, Rice challenges the legal and factual
sufficiency of the evidence to support the amounts awarded for future medical care
and loss of earning capacity.  We reverse and render judgment.
Background
          Hicks, accompanied by her daughter, Noelle, and her son, Dorian, went to a
Rice Food store.  While attempting to purchase candy at a See’s Candy kiosk located
in the store, one end of a See’s Candy sign fell off the canopy of the kiosk and struck
Hicks on the right side of her face and right arm.  Although Noelle and Dorian saw
the sign fall, the Rice employee did not see the accident.
          When the sign struck her, Hicks lost her balance, but her daughter caught her
before she fell.  An ambulance took Hicks to the hospital where she received
treatment for severe bruising to her face and forearm.  
          The sign in question was made of plexiglass.  It was approximately 54 inches
long, eight inches wide, and weighed approximately three and one-half pounds. 
Standard of Review
          When, as here, the party without the burden of proof challenges the legal
sufficiency of the evidence, we will sustain the challenge only if, considering the
evidence and inferences in the light most favorable to the finding, there is not more
than a scintilla of evidence supporting it.  Burroughs Wellcome Co. v. Crye, 907
S.W.2d 497, 499 (Tex. 1995).  “More than a scintilla of evidence exists where the
evidence supporting the finding, as a whole, ‘rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.’”  Id. (quoting
Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)).
Analysis
          When the injured party is an invitee, as Hicks was, the elements of a premise
liability cause of action are:
     (1) Actual or constructive knowledge of some condition
          on the premises by the owner/operator;
(2) the condition posed an unreasonable risk of harm;
(3) the owner/operator did not exercise reasonable    
      care to reduce or eliminate the risk; and
(4) the owner/operator’s failure to use such care        
      proximately caused the plaintiff’s injuries.
 
CMH Homes, Inc., v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); National
Convenience Stores, Inc., v. Arrington, 896 S.W.2d 312, 313 (Tex.
App.—Houston [1st Dist.] 1995, no writ).  
          Rice contends that the evidence was legally and factually insufficient to
prove the first three elements of the cause of action.  
Actual or Constructive Notice
          In its second point of error, Rice contends that the evidence is legally and
factually insufficient to show that it had actual or constructive notice that the
sign on the kiosk posed an unreasonable risk of harm.  “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.”  Keetch v. Kroger Co., 845
S.W.2d 262, 265 (Tex. 1992).  Even with an inference of knowledge, the jury
must still find that the owner or occupier knew or should have known of the
condition.  Id.  Such an inference as a matter of law is improper unless
knowledge is uncontroverted.  Id.
          Thus, we consider whether there is any evidence that Rice had actual or
constructive knowledge of an unreasonable risk of harm.  Rice denied actual
knowledge that the sign posed an unreasonable risk of harm.  Therefore, actual
knowledge was not established as a matter of law. 
          We examine the record to determine whether the evidence is legally
sufficient to establish Rice’s actual or constructive knowledge.  There is no
evidence that the sign had ever fallen down before this incident, and a Rice
representative testified that he knew of no similar incident.  Moreover, there is
no evidence in the record that the sign was a dangerous condition from the
moment it was installed.  Therefore, there is no evidence that Rice had actual
knowledge that the sign on the kiosk posed an unreasonable risk of harm.  
          Likewise, Hicks presented no evidence of Rice’s constructive knowledge
of the allegedly dangerous condition.  Constructive knowledge may be
established by showing that the condition had existed long enough for the owner
or occupier to have discovered it upon reasonable inspection.  CMH Homes,
Inc., 15 S.W.3d at 102.  Hicks failed to present any evidence on how long the
sign had been attached to the canvas.  The evidence is legally insufficient to
support a finding of knowledge.  
          While we are sympathetic to anyone who is innocently injured, we
emphasize that premise owners neither are insurers nor are they strictly liable. 
Id.  Hicks argues that the use of a velcro strip to attach the sign to the kiosk and
the presence of unused screw mounts on the sign are evidence of constructive
notice.  We disagree.  “Evidence that an owner or occupier knew of a safer,
feasible alternative design, without more, is not evidence that the owner knew
or should have known that a condition on its premises created an unreasonable
risk of harm.”  Id.  
          We, therefore, sustain Rice’s second point of error.
          Because our determination of Rice’s second point of error is dispositive,
we decline to address its other points.
 
 
 
 
 
Conclusion
          We reverse the judgment of the trial court and render judgment that Hicks
take nothing.  
 
                                                                                  Adele Hedges
                                                                                  Justice
 
Panel consists of Justices Hedges, Jennings, and Alcala.
Justice Alcala, dissenting.
