Court of Appeals of Texas,

Houston (1st Dist.).

THIRSTY’S INC., Appellant,

v.

Cynthia Denise EDMONDS, Appellee.

No. 01-96-00820-CV.

|

May 1, 1997.

Before ANDELL and NUCHIA, JJ.

COHEN, Justice.

OPINION

*1 While employed at Thirsty’s Inc. (Thirsty’s), Edmonds fell. She sued Thirsty’s for negligence. A jury found Thirsty’s negligent and awarded $13,000. We affirm.

In its first point of error, Thirsty’s contends the evidence was legally and factually insufficient. We review legal sufficiency in the light most favorable to the verdict, and we disregard all contrary evidence and inferences. Sherman v. First Nat’l Bank, 760 S.W.2d 240, 242 (Tex.1988). In determining factual sufficiency, we examine all of the evidence and will set aside the verdict only if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

The elements of a premise liability cause of action are: (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (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. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992). Thirsty’s contends the evidence is legally and factually insufficient to show the first element-that it knew or should have known there was a substance on the floor.

Evidence was presented that the floors were unsafe because they had no slip resistant covering. According to appellant and a former Thirsty’s manager, employees, even though they were instructed not to, would often pour liquid into plastic trash bags that would leak on the floor. At trial, Edmonds testified she slipped in a substance from a leaky bag left by an employee the previous night. She admitted, however, that the substance may have come from a leaking mop bucket.

The fact that the owner created a dangerous condition may support an inference of knowledge. Keetch, 845 S.W.2d at 265. The supreme court has upheld a jury finding that such an inference was justified, even where an owner did not know “that a particular grape was on the floor at a particular time because it knew that the grapes would be on the floor due to the nature of the display.” Id., citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983).

As the sole judge of credibility of witnesses, the jury was free to believe some, all, or none of the testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). Viewing the evidence in the light most favorable to the verdict, the jury could have found that Thirsty’s knew or should have known about the substance because its employees, despite instructions to the contrary, often handled liquids in a manner that leaked them onto the slippery floor. Likewise, the evidence is factually sufficient because the verdict is not so against the great weight and preponderance of the evidence to be clearly wrong and unjust.

*2 We overrule the first point of error.

In its second point of error, Thirsty’s contends the trial judge erred in precluding it from arguing that Edmonds was negligent. In its third point of error, Thirsty’s contends the trial judge erred in submitting the following instruction on Edmonds’s negligence, “The negligence of Cynthia Edmonds, if any, is not to be considered when answering the questions.”

At the time of the accident, Thirsty’s was not covered by workers’ compensation insurance. As a nonsubscriber, Thirsty’s could not assert the defense of contributory negligence. Tex. Lab.Code Ann. § 406.033(a) (Vernon Supp.1997). Thirsty’s arguments, therefore, are without merit.

We overrule the second and third points of error.

In its fourth point of error, Thirsty’s contends the trial judge erred in refusing to submit a sole proximate cause instruction. As a nonsubscriber under workers’ compensation, Thirsty’s may assert that Edmonds was the sole proximate cause of her injuries. See Najera v. Great Atl. & Pac. Tea Co., 146 Tex. 367, 207 S.W.2d 365, 367 (1948); Chemical Express Carriers, Inc. v. Pina, 819 S.W.2d 585, 589 (Tex.App.-El Paso 1991, writ denied). An instruction must be submitted to the jury only if evidence supports it. Tex.R. Civ. P. 278; Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex.1995).

Evidence does not support it. The record conflicts as to how Edmonds was injured. The original medical record stated, “She noticed there was water on the floor. She went to get a mop from the kitchen. She slipped, tried to get her balance, fell on her left knee and left side.” Edmonds told her treating physician, Dr. William Dickey, that this history was incorrect. Dr. Dickey’s secretary admitted that she sometimes made mistakes when typing a patient’s history, so she corrected it to read, “She went to the supply closet to get cups. She slipped in some water and fell on the left side of her back.”

The original history, stating that Edmonds noticed the substance before she slipped, at most raised a question as to whether she assumed a risk. See Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238, 240 (Tex.1955) (employee’s alleged knowledge of oil on floor related only to his assumption of risk). As a non-subscriber, Thirsty’s was not entitled to the defense of assumption of the risk. Tex. Lab.Code Ann. § 406.033(a). There was no other evidence that Edmonds was the sole proximate cause of her injuries. The evidence, therefore, was insufficient to support a sole proximate cause instruction.

We overrule the fourth point of error.

The judgment is affirmed.