Pay and Save, Inc. v. Roel Canales

Supreme Court of Texas
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No. 22-0953
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Pay and Save, Inc.,
Petitioner,

v.

Roel Canales,
Respondent

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On Petition for Review from the
Court of Appeals for the Fourth District of Texas
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PER CURIAM

Justice Boyd did not participate in the decision.

This is a premises-liability suit. Roel Canales sued a Pay and
Save grocery store for injuries he sustained from falling after getting his
foot stuck in the open side of a wooden pallet used to transport and
display watermelons. After a jury trial, the trial court signed a
judgment of over $6 million for Canales. The court of appeals concluded
that “the evidence was legally but not factually sufficient to support the
jury’s findings” regarding premises liability, so it reversed and
remanded for a new trial on that claim. ___ S.W.3d ___, 2022 WL
4227575, at *1 (Tex. App.—San Antonio Sept. 14, 2022). The court of
appeals also rendered judgment that Canales take nothing on his gross-
negligence claim. Id.
Both parties petitioned for review. We hold that the evidence is
legally insufficient to support both claims because the wooden pallet was
not unreasonably dangerous as a matter of law. We reverse the court of
appeals’ judgment in part and render judgment for Pay and Save.
Grocery stores throughout South Texas, including Pay and Save,
use wooden pallets to transport and display whole watermelons. At the
point of harvest, watermelons are loaded into large cardboard boxes.
Each boxful of watermelons rests on a wooden pallet. There they
remain—from farm, to truck, onto the road, and into a store’s produce
section till discarded or sold. The pallets have open sides to facilitate
their transport by forklifts and pallet jacks. This is a logistical necessity.
Because of the fruits’ large size, weight, and spherical shape, they
cannot easily be transported safely by hand. For the same reasons, the
cardboard boxes require the support of sturdier wooden pallets.
Pay and Save owns a grocery store in Freer, Texas. On May 4,
2016, Canales entered the store and approached a display of
watermelons on a wooden pallet. He had previously visited the location
hundreds of times and had purchased watermelons without incident.
On that day, however, he was wearing steel-toed work boots and failed
to realize that he had placed his foot in the pallet’s open side. As Canales
stepped away, his toe got caught, and he fell and fractured his right
elbow.

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To prevail in a premises-liability case, an invitee-plaintiff must
show that (1) a premises owner had actual or constructive knowledge,
(2) of some unreasonably dangerous condition on the premises (3) but
the owner did not exercise reasonable care to reduce or to eliminate the
unreasonable risk of harm, (4) which proximately caused the plaintiff’s
personal injuries. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296
(Tex. 1983). Pay and Save argues that the evidence is legally
insufficient to support a finding of premises liability because the wooden
pallet is not unreasonably dangerous as a matter of law. We agree.
Evidence is legally insufficient to prove a vital fact when it:
(1) cannot be given weight under the rules of law or evidence;
(2) amounts to no more than a mere scintilla; (3) conclusively
establishes the opposite of what it is intended to prove; or (4) appears
nowhere in the record. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505
S.W.3d 580, 613 (Tex. 2016). Whether a condition is unreasonably
dangerous is often a fact question. United Supermarkets, LLC v.
McIntire, 646 S.W.3d 800, 802 (Tex. 2022). We have, however,
consistently held that common or innocuous hazards are not
unreasonably dangerous as a matter of law. 1 Under this doctrine of
common conditions, the standalone fact that a condition has caused an

1 See, e.g., Christ v. Tex. Dep’t of Transp., 664 S.W.3d 82, 85, 87, 90 (Tex.

2023) (concluding that the use of painted stripes and buttons instead of
concrete barriers to separate travel lanes did not create an unreasonably
dangerous condition as a matter of law); McIntire, 646 S.W.3d at 801-04
(concluding that a “profoundly ordinary” divot in a grocery store parking lot
was not unreasonably dangerous as a matter of law); Brinson Ford, Inc. v.
Alger, 228 S.W.3d 161, 162-63 (Tex. 2007) (holding that a pedestrian ramp with
a short, unrailed section was not unreasonably dangerous as a matter of law).

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injury does not make it unreasonably dangerous. Christ v. Tex. Dep’t of
Transp., 664 S.W.3d 82, 87 (Tex. 2023).
The doctrine protects commercial enterprises and property
owners from what would otherwise essentially be strict liability. M.O.
Dental Lab v. Rape, 139 S.W.3d 671, 676 (Tex. 2004); CMH Homes, Inc.
v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). Without this doctrine, a
grocery store and everything in and around it could be characterized as
unreasonably dangerous. Brookshire Grocery Co. v. Taylor, 222 S.W.3d
406, 408 (Tex. 2006). This is because it will almost always seem true, in
retrospect, that just one more step could have been taken to prevent an
injury. Id. To ensure that hindsight does not become an occasion for
imposing limitless liability, we have said that landowners are neither
insurers of a visitor’s safety nor required to make a premises foolproof.
McIntire, 646 S.W.3d at 804. In short, the mere possibility of harm that
accompanies every condition in existence provides no basis for a tort
claim.
To raise a fact question on whether a common condition is
unreasonably dangerous, a plaintiff must show more than a mere
possibility of harm. At a minimum, we require sufficient evidence of
prior accidents, injuries, complaints, reports, regulatory noncompliance,
or some surrounding circumstance that transformed the condition into
one measurably more likely to cause injury. Christ, 664 S.W.3d at 87-
88, 90, 91 n.5; Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754-
55 (Tex. 1970). An absence of such evidence will lead to a conclusion
that the condition complained of is an everyday hazard. We have so held
in a wide variety of cases. See supra note 1.

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We do so here as well. As the court of appeals acknowledged, the
record shows a “complete absence” of any evidence of prior complaints,
reports, or injuries from pallets like this one—and not just at Pay and
Save’s 150 stores, but also at “H.E.B., Walmart, or any other grocery
store.” 2022 WL 4227575, at *10. This is true despite the fact that
thousands of customers walk past these and similar displays every
single day.
There also is no evidence of any code, law, or regulation
prohibiting or restricting the use of wooden pallets. Id. at *11. The
evidence instead establishes that transporting and displaying
watermelons in this way is a “widely accepted“ and “long-used” industry
practice. Id. Canales also failed to adequately plead that some
surrounding circumstance transformed the pallet’s open side into a
condition measurably more likely to cause injury.
Expert testimony may be offered to show that an item’s use,
placement, or arrangement increased the risk of harm. Christ, 664
S.W.3d at 91 n.5. But expert testimony does not create a fact issue when
undisputed, material facts show otherwise. Id. Similarly, knowledge of
safer, feasible alternative designs, without more, is not evidence that a
premises owner knew that a condition was unreasonably dangerous.
City of Dallas v. Thompson, 210 S.W.3d 601, 604 (Tex. 2006). In any
event, the court of appeals properly disregarded the testimony of
Canales’s experts as nonprobative and conclusory. 2

2 One of Canales’s experts, Alex Balian, testified that the way Canales

was injured was a hazard “known by the industry” that has “happened before
so it[’]s not a new thing.” But he provided no examples in support. He also
conceded that displaying watermelons on uncovered pallets has been the

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The court of appeals correctly recognized that the evidence shows
only “a possibility that someone’s foot might enter a pallet opening.”
2022 WL 4227575, at *11. It still erroneously concluded, however, that
such evidence is legally sufficient evidence of an unreasonably
dangerous condition. In doing so, it reasoned that “the jury could have
reasonably inferred that a customer could get a foot stuck in a pallet
side opening, which could cause the customer to fall and be injured.” Id.
at *7 (emphasis added).
The court of appeals’ error was twofold. First, it assumed that a
mere possibility of harm suffices to legally establish the existence of an
unreasonable risk of harm. Second, it assumed that it needed to credit
the jury’s flawed inference to that effect. We have long held to the
contrary. Christ, 664 S.W.3d at 87 (stating that “an unreasonable risk
of harm” exists only if there is a “sufficient probability of a harmful event
occurring that a reasonably prudent person would have foreseen it or
some similar event as likely to happen” (emphasis added) (quoting
Seideneck, 451 S.W.2d at 754)); McIntire, 646 S.W.3d at 804 (explaining
that “testimony that a condition could injure an invitee is not evidence
that it poses an unreasonable risk of harm”).
As the evidence shows only a mere possibility of harm, it is legally
insufficient. The wooden pallet was not unreasonably dangerous. It was
a common condition, a type of hazard that we encounter—and avoid—

“accepted practice in South Texas” for “years and years and years” and that
pallet guards are not required by any law, ordinance, or statute. Another of
Canales’s experts, Russell Kendzior, testified that it is an “industry standard”
to use some protection, like “pallet guards.” But he conceded that “[m]ost
retailers [he is] aware of do not use [them].”

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every day by exercising a modicum of common sense, prudence, and
caution. And in his own words, Canales failed to exercise those faculties:
“I wasn’t looking at the floor. I don’t go in looking at my feet or where
the hazards are. I went in to buy a watermelon, I didn’t pay attention
to the boxes or arrows or nothing.”
The court of appeals correctly rendered a take-nothing judgment
on the gross negligence claim, reasoning that Canales did not present
clear and convincing evidence that the pallet created an extreme degree
of risk. 2022 WL 4227575, at *15. We need not reach that inquiry, as
the absence of legally sufficient evidence for premises liability also
disposes of the gross-negligence claim. Transp. Ins. Co. v. Moriel, 879
S.W.2d 10, 21 (Tex. 1994) (stating that “the ‘extreme risk’ prong [of gross
negligence] is not satisfied by a remote possibility of injury”).
Without hearing oral argument, TEX. R. APP. P. 59.1, we grant the
petitions for review, reverse the court of appeals’ judgment on Canales’s
premises-liability claim, and render judgment for Pay and Save on that
claim. We affirm the court of appeals’ judgment for Pay and Save on
Canales’s gross-negligence claim.

OPINION DELIVERED: June 14, 2024

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