Texas Judiciary Online - HTML Opinion

Grayson=20 does not rely on direct evidence but argues there was factually = sufficient=20 circumstantial evidence that Anselmo had actual or constructive = notice of=20 the dangerous condition. Grayson contends that because the = manner in=20 which Anselmo constructed the ramp and railing created the = dangerous=20 condition, Anselmo therefore had constructive knowledge of = it. At=20 trial, there was conflicting evidence as to how Anselmo = constructed the=20 railing. He and his son built the ramp about one month = before=20 Grayson=3Ds=20 visit. Anselmo testified that the railing consisted of two = boards=20 attached to support posts, with one board on the outside of the = post and=20 the other on the inside of the post. Grayson testified that = only one=20 board was attached to the post. The trial court admitted = several=20 photographs into evidence showing the railing constructed with two = boards=20 and one photograph showing the railing constructed with one = board. =20 No evidence was introduced to show that anyone else had been = injured on=20 the ramp, that the railing had ever failed or given any indication = that it=20 was not sturdy, or that anyone had pointed out that the railing = was=20 dangerously constructed. The Texas Supreme Court has held that the = inference of actual or constructive knowledge is a fact question = for the=20 trier of fact. See Keetch, 845 S.W.2d at 266; = Coffee v.=20 F.W. Woolworth Co., 536 S.W.2d 539, 542 (Tex. 1976). In=20 Keetch, the plaintiff slipped and fell crossing a slippery = area on=20 the floor created by Kroger=3Ds spraying=20 of AGreen=20 Glo@ = shine on=20 plants in its floral department. 845 S.W.2d at = 263. The=20 trial court submitted the case on a premises‑liability = theory. The=20 jury found the slippery spot constituted an unreasonable risk of = harm to=20 Keetch, but failed to find that Kroger knew or should have known = of the=20 condition. Id. at 264. The supreme court = affirmed the=20 judgment, rejecting the plaintiff=3Ds argument=20 that Kroger=3Ds creation=20 of the condition meant that Kroger had actual knowledge as a = matter of=20 law. Id. Although it declined to create an=20 automatic-liability rule, the court noted: AThe fact=20 that the owner or occupier of a premises created a condition that = posed an=20 unreasonable risk of harm may support an inference of=20 knowledge.@ =20 Id. at 265.

In=20 Coffee v. F.W. Woolworth Co., the plaintiff was injured = when she=20 fell over a low‑lying, empty platform intended to hold = merchandise. =20 536 S.W.2d at 540. At trial, there was a dispute whether = Woolworth=20 and its employees were aware of the empty platform, but the jury = found=20 Woolworth, through its employees, had constructive knowledge of = the=20 dangerous condition. Id. The court of appeals = reversed=20 the trial court, finding that the record was devoid of any direct = evidence=20 that Woolworth had actual knowledge that the platform was = empty. =20 Coffee v. F.W. Woolworth Co., 526 S.W.2d 793, 795 (Tex. = Civ.=20 App.CCorpus=20 Christi 1975), rev=3Dd, 536=20 S.W.2d 539. The Texas Supreme Court reversed the court of = appeals,=20 reasoning thatCbecause=20 the store=3Ds policy=20 was to avoid letting its platforms become empty from = normal‑course=20 customer purchasesCthe jury=20 could have reasonably inferred that the platform was empty because = store=20 personnel created the condition when changing displays; therefore, = the=20 defendants had actual notice. Coffee, 536 S.W.2d at=20 540B41. In=20 discussing Coffee, the court in Keetch concluded = that=20 A[t]he fact=20 that [the defendant] created the condition was circumstantial = evidence of=20 knowledge.@ =20 Keetch, 845 S.W.2d at 266.