Walmart Stores, Inc. v. Cantu, Not Reported in S.W.
3d (2003)
2003 WL 21156840
Only the Westlaw citation is currently available.
SEE TX R RAP RULE 47.2 FOR
DESIGNATION AND SIGNING OF OPINIONS.
Court of Appeals of Texas,
San Antonio.
WALMART STORES, INC. d/
b/a Sam's Club, Appellant,
v.
Henry CANTU, Appellee.
No. 04–02–00094–CV.
| store owner in customer's action that sought
May 21, 2003.
| store when child rode bicycle into customer's
Rehearing Overruled July 21, 2003.
Customer brought action against store owner, asserting
claims of premises liability and negligent activity
stemming from injuries allegedly sustained by customer
when he was allegedly hit by child riding bicycle in
store. Following a jury trial, store owner filed motion
for judgment notwithstanding the verdict. The County
Court at Law No. 5, Bexar County, Timothy F.
Johnson, J., reduced damages and rendered judgment
awarding damages to customer. Store owner appealed,
and customer cross-appealed. The Court of Appeals, Paul
W. Green, J., held that: (1) action should have been
submitted to jury as claim of premises liability, not claim
of negligent activity, and (2) customer waived findings on
claim of premises liability.
Reversed and rendered.
West Headnotes (2)
[1] Negligence
Nature
Negligence
Buildings and other structures
Customer's cause of action against store
owner regarding injuries allegedly sustained
when child rode bicycle into customer's leg
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
while in store should have been submitted to
jury as claim of premises liability, not claim of
negligent activity, since there was no ongoing
activity by any store employee at time of
injury, and customer was not injured directly
by any of store's activities.
2 Cases that cite this headnote
[2] Appeal and Error
Further or more specific instructions
Customer waived findings on claim of
premises liability, and thus lack of required
findings on that claim required Court of
Appeals to render judgment in favor of
recovery for injuries allegedly sustained in
leg, since trial court instructed jury on
ordinary negligence, there was no instruction
on unreasonable risk of harm or actual
or constructive knowledge, and customer
permitted negligence claim to go to jury
without objection.
1 Cases that cite this headnote
Attorneys and Law Firms
J. Woodfin Jones, Scott, Douglass & McConnico, L.L.P.,
Austin, Robert J. Perez, Shelton J. Perez, San Antonio,
for appellant.
Troy Harber, Law Office of Ed Goldner, San Antonio, for
appellee.
Sitting: CATHERINE STONE, Justice, PAUL W.
GREEN, Justice, SARAH B. DUNCAN, Justice.
Opinion
Opinion by PAUL W. GREEN, Justice.
*1 Appellee Henry Cantu filed suit against Appellant
Wal–Mart, Inc. d/b/a Sam's Club to recover damages
sustained when he was hit by a child riding a bicycle
inside a Sam's Club store. Cantu pled under the theories of
premises liability and a negligent activity. Following trial,
Cantu opted to submit the case to the jury solely on the
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Walmart Stores, Inc. v. Cantu, Not Reported in S.W.3d (2003)
theory of negligent activity. The jury returned a verdict
in favor of Cantu, finding $72,000 worth of damages.
Wal–Mart filed a motion for judgment notwithstanding
the verdict, and the trial judge reduced the damages
to $34,000, rendering a total judgment of $43, 950.55
plus post-judgment interest. Wal–Mart now appeals this
judgment, citing two issues. Cantu cross appeals in one
issue, complaining of the trial court's reduction of the
damages.
BACKGROUND
On July 17, 1998, Appellant Henry Cantu and a friend
entered a Sam's Club store as customers. Also shopping
at the store were Mr. and Mrs. Serna and their ten-year-
old son. The son removed a bicycle from the hook where
it was hanging and began to ride the bicycle around the
store. The boy rode the bicycle into Cantu's leg, injuring
him. Following the incident, Cantu found an assistant
manager, Mr. Dovalina, who accompanied him to the
sporting goods area and took statements from both the
Sernas and Cantu.
Cantu subsequently sued Wal–Mart under the theories
of premises liability and negligent activity. The case was
tried, and Cantu submitted the issue to the jury under
the negligent activity theory rather than the theory of
premises liability. The jury returned a verdict in favor
of Cantu, awarding $73,000 in damages. Wal–Mart filed
a motion for judgment notwithstanding the verdict, and
the trial court reduced the amount of total damages to
$43, 950.55 plus post-judgment interest. Wal–Mart now
appeals, claiming the trial court erred in submitting the
issue to the jury under the theory of negligent activity
rather than premises liability, and under the theory of
premises liability, the jury's finding of simple negligence
does not support a recovery by Cantu. Wal–Mart also
argues the trial court abused its discretion by including
a spoliation instruction in the jury charge. Cantu cross
appeals, claiming the trial court erred in remitting the
jury's verdict as to future medical expenses.
NEGLIGENT ACTIVITY
AND PREMISES LIABILITY
[1] In its first issue, Wal–Mart argues that the trial
court erroneously submitted the case to the jury under a
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
negligent activity theory rather than a premises liability
theory. Liability for injury on business premises may
be found under either a premises condition theory or a
negligent activity theory. See Keetch v. Kroger Co., 845
S.W.2d 262, 264 (Tex.1992); Wal–Mart v. Bazan, 966
S.W.2d 745, 746 (Tex.App.-San Antonio 1998, no pet.).
Recovering under a negligent activity theory requires the
plaintiff to have been injured by or as a contemporaneous
result of the activity itself rather than by a condition
created by the activity. Keetch, 845 S.W.2d at 264; Bazan,
966 S.W.2d at 746. A premises liability claim, on the other
hand, is a claim that the premises itself is unsafe. Bazan,
966 S.W.2d at 746.
*2 Wal–Mart contends none of the allegedly negligent
activities asserted by Cantu actually caused injury to the
appellee, thereby negating any claim of negligent activity.
Cantu alleges that Wal–Mart was negligent in (1) failing
to tie the bikes down; (2) leaving the bikes within reach
of children; (3) failing to implement procedures to keep
children from riding bikes in the store; and (4) failing
to stop the child in question from riding the bike. There
was no ongoing activity by any Wal–Mart employee at
the time of the injury. Although Cantu may have been
injured by a condition created by Wal–Mart's alleged
negligence, he was not injured directly by any of its
activities. Therefore, the trial court erred in submitting the
case to the jury under the theory of negligent activity. The
issue should have been submitted as a premises liability
cause of action.
[2] The elements of a premises liability cause of action
were laid out in Corbin v. Safeway Stores, Inc., 648 S.W.2d
292, 296 (Tex.1983). To be successful, a plaintiff raising
a premises liability claim must show that (1) the owner/
operator had actual or constructive knowledge of some
condition on the premises; (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. Id; Bazan, 966
S.W.2d at 746.
Because Cantu's cause of action is properly categorized
as a premises liability issue, he is required to obtain
findings on premises liability jury questions. Keetch,
845 S.W.2d at 266; Bazan, 966 S.W.2d at 747. The
charge submitted to the jury in the present case did
not include questions addressing the Corbin elements.
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Walmart Stores, Inc. v. Cantu, Not Reported in S.W.3d (2003)

Instead, the trial court instructed the jury on ordinary on his only viable claim, premises liability, and the court
must render judgment in favor of Wal–Mart. 952 S.W.2d
negligence. The charge defined both ordinary negligence
523, 529 (Tex.1997); Bazan, 966 S.W.2d at 747.
and ordinary care without referring to the duties of
owners or occupiers of premises. In addition, there is
Because we affirm Wal–Mart's first issue, we do not need
no instruction on unreasonable risk of harm or actual
to address its second issue or the cross-appeal issue raised
or constructive knowledge. Wal–Mart objected to the
by Cantu. The judgment of the trial court is reversed and
charge as submitted, arguing the case should be submitted
rendered in favor of Wal–Mart.
under a premises liability instruction and suggesting a
corrected version of the charge. The trial court did not
submit the instruction requested by Wal–Mart, and Cantu All Citations
permitted the negligence instruction to go to the jury
without objection. Under the rule set out in Clayton W. Not Reported in S.W.3d, 2003 WL 21156840
Williams, Jr., Inc. v. Olivo, Cantu has waived the findings

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 3