H.E. Butt Grocery Co. v. Resendez

Supreme Court of Texas · 1999 · Torts

988 S.W.2d 218 (1999)

Updated July 19, 2026

TortsPremises liabilityNegligenceunreasonable risk of harmcustomer sampling displayactual or constructive knowledgereasonable careproximate cause

Facts

Maria Resendez slipped and fell near two grape displays in an HEB produce section. One display held grapes bagged in cellophane in boxes, and the other held a bowl of loose grapes for customer sampling. The sampling bowl was level, sat on ice, and was recessed about five inches below the table surface; each display table had a three-inch railing, the produce section floor was non-skid, floor mats were placed around the display tables, and warning cones were nearby. Resendez alleged that the customer sampling display posed an unreasonable risk of harm that caused her injuries.

Issue

Can the mere display of produce for customer sampling, without additional evidence about the manner of display creating danger, constitute evidence of a premises condition posing an unreasonable risk of harm to customers?

Rule

To recover in a premises negligence case, a plaintiff must prove that (1) the defendant had actual or constructive knowledge of a condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) the defendant did not exercise reasonable care to reduce or eliminate the risk, and (4) the failure to use such care proximately caused the plaintiff's injuries. As a matter of law, the mere fact that a store has a customer sampling display cannot, without more, be evidence of a condition on the premises that poses an unreasonable risk of harm.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a grocery in San Antonio, Lena Ortiz slipped near a self-serve sample station offering loose cherries to shoppers. The evidence showed only that customers were invited to sample the cherries; the station had a recessed tray, rubber mats around it, and a textured floor.

If Lena sues the store for premises negligence, which argument best supports judgment for the store on the unreasonable-risk element?

Explanation. A premises plaintiff must prove, among other things, that a condition posed an unreasonable risk of harm. Under the governing rule, the mere fact that a store has a customer sampling display cannot, without more, be evidence of an unreasonably dangerous condition. Here, the evidence shows only sampling plus protective features, not a dangerous manner of display.