A three-justice panel of the Fourth Court of Appeals in San Antonio wiped out a multimillion-dollar verdict in a slip-and-fall case on Wednesday and ordered a new trial take place, citing insufficient evidence to support the award.
The opinion, authored by Justice Patricia O. Alvarez and joined by justices Luz Elena D. Chapa and Lori I. Valenzuela, undoes a Duvall County jury’s award of $6.3 million in actual damages to Roel Canales and $13 million in punitive damages against Pay and Save Inc. Pursuant to damages caps, the trial court rendered judgment for Canales that knocked the punitive damages down to $1.8 million and trimmed his actual damages to $4.4 million.
Canales was injured in May 2016 at a Pay and Save store in Freer, Texas, when his steel-toed work boots got stuck in the open-sided wooden pallet beneath a cardboard watermelon display bin.
He lost his balance when he turned to leave and fell to the ground, shattering his elbow and injuring his back and hip. He required surgeries. The jury found Canales was 30 percent at fault for his injuries and Pay and Save 70 percent responsible.
The justices held the jury couldn’t have reasonably believed that Pay and Save’s use of open-sided pallets under the cardboard watermelon display bin was such a departure from the industry standard that it would constitute gross negligence.
And the panel had issues with the jury’s negligence finding, too.
“Second, although there was some evidence to support the jury’s finding that Pay and Save was negligent under a premises liability theory, the supporting evidence was so weak, and the controverting evidence was so significant, that the jury could not have reasonably found as it did,” the panel wrote.
A new trial will now take place on the premises liability claim.
Counsel for Pay and Save — Charles T. Frazier of Alexander Dubose & Jefferson and Hugh N. Lyle and Angelia B. Lee of Mullin Hoard & Brown — filed a brief with the San Antonio appellate court in September 2020, trying to undo the trial court’s January 2019 judgment.
Pay and Save argued on appeal that Canales failed to prove its watermelon display was unreasonably dangerous, noting “there is no written industry standard, policy, or procedures about using open wooden pallets to display watermelons at grocery stores.”
“No law prohibits the manner in which Pay and Save displays watermelons,” the grocery store argued in briefing. “It is the way they have been displayed in South Texas and elsewhere for many years.”
Canales had argued to the jury and on appeal that many stores in the region have taken “reasonable steps” to protect customers from the dangers of open-sided pallets, namely using pallet end guards or solid-edged pallets, since at least 2002.
Frazier declined to comment Wednesday, citing the pending litigation and a message left with Canales’ attorney, William Chriss of The Snapka Law Firm, wasn’t returned Wednesday.
The cause number is 04-20-00125-CV in the Fourth Court of Appeals of Texas.