MEMORANDUM OPINION

No. 04-09-00697-CV

MASS MARKETING LTD. d/b/a Super S Foods,

Appellant

v.

Hope DURBIN,

Appellee

From the 225th Judicial District Court, Bexar County, Texas

Trial Court No. 2008-CI-12164

Honorable Larry Noll, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Marialyn Barnard, Justice

Delivered and Filed: October 20, 2010

AFFIRMED

This is an appeal in a premises liability case. Mass Marketing Ltd. d/b/a Super S Foods 

(“Mass Marketing”) appeals a jury verdict in favor of Hope Durbin. Mass Marketing contends:

(1) the evidence is legally and factually insufficient to show Mass Marketing had actual or 

constructive knowledge of a defective condition on its premises which posed an unreasonable 

risk of harm; (2) the evidence is legally and factually insufficient to prove Mass Marketing

proximately caused Durbin’s injuries by failing to exercise reasonable care to reduce or eliminate 
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a defective condition on its premises which posed an unreasonable risk of harm; (3) the trial 

court erred in admitting medical service affidavits, and the evidence is legally and factually 

insufficient to support the jury’s award of damages; and (4) Durbin’s attorney made an incurable

jury argument. We affirm the trial court’s judgment.

BACKGROUND

In 2006, Hope and Clem Durbin were in the produce section at the Super S Foods

grocery store in Castroville when Durbin allegedly tripped over a milk crate that was on the floor 

next to a four foot high, four-by-four square corn display. EMS was called, and Durbin was 

taken to the hospital for pain in her shoulder and knee. X-rays showed Durbin fractured and 

dislocated her shoulder, but showed no signs of injury to her knee. The emergency room staff 

re-set her shoulder and put a brace on her knee. Durbin was 80 years old at the time of trial.

About a week after the accident, Durbin complained she was in so much pain she was 

unable to walk. Durbin was taken by EMS to Sports Medicine Associates where she saw Dr. 

Richard Steffen. Dr. Steffen ordered an MRI on Durbin’s shoulder and knee. The MRI showed 

the same shoulder injury as found in the emergency room, but also showed a nondisplaced 

fracture to Durbin’s tibia. Dr. Steffen prescribed rehabilitation, which Durbin performed, but 

because Durbin claimed the pain continued, she ultimately received a shoulder replacement.

Durbin filed a premises liability suit against Mass Marketing. The case was tried to a 

jury. The jury reached a verdict in favor of Durbin and awarded her $145,000 in damages, 

including $106,000 for past medical expenses. The trial court reduced this damage award to 

$52,424.63, in accordance with section 41.0105 of the Texas Civil Practice & Remedies Code,

and rendered judgment on the verdict.
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DISCUSSION

Sufficiency of the Evidence

In its first and second issues, Mass Marketing contends the evidence is legally and 

factually insufficient to prove (1) Mass Marketing had actual or constructive knowledge the corn 

display posed an unreasonable risk of harm, and (2) Mass Marketing did not exercise reasonable 

care to reduce or eliminate the defective condition, which was the proximate cause of Durbin’s 

injuries.

In reviewing a legal sufficiency claim, we view the evidence in the light most favorable 

to the party for whom the verdict was rendered. See City of Keller, 168 S.W.3d 802, 822 (Tex. 

2005). We look to whether the evidence presented at trial enables a reasonable and fair minded 

jury to render the same verdict. See id. at 827. We must therefore, “credit favorable evidence if 

reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” Id. 

A legal sufficiency issue will be sustained if the record shows: “(a) a complete absence of 

evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight 

to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is 

no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital 

fact.” Id. at 810 (quoting Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points 

of Error, 38 TEX. L. REV. 361, 362–63 (1960)). If the record contains any probative evidence in 

support of the jury’s findings, we will uphold the jury’s verdict. See Exxon Corp. v. Garza, 981 

S.W.2d 415, 420 (Tex. App.—San Antonio 1998, pet. denied).

In reviewing a factual sufficiency claim, we consider the entire record and determine “if 

the evidence is so weak or if the finding is so against the great weight and preponderance of the 
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evidence that it is clearly wrong and unjust.” Dow Chemical Co. v. Francis, 46 S.W.3d 237, 

241–42 (Tex. 2001).

In conducting our sufficiency review, we are mindful that the jury, as the fact finder, is 

the sole judge of the credibility of the witnesses, the weight to be given to their testimony, and

the weight to be given to the evidence, and we will not displace the jury’s determination even if 

we would find otherwise. See City of Keller, 168 S.W.3d at 819. It is also within the jury’s 

discretion to resolve inconsistencies and conflicts in the evidence, and we must accept the jury’s 

resolution of these inconsistencies and conflicts. Barrajas v. VIA Metro. Transit Auth., 945 

S.W.2d 207, 209 (Tex. App.—San Antonio 1997, no pet.).

A landowner owes a duty to those who enter his property, but the level of the 

landowner’s duty is dependent upon the status of those who enter. Rosas v. Buddie’s Food 

Store, 518 S.W.2d 534, 536 (Tex. 1975). An invitee, usually a business visitor, is one who 

enters for the mutual benefit of both the invitee and the landowner. Id. at 536 (citing 

RESTATEMENT (SECOND) OF TORTS § 332 (1965)). Here, Durbin was unquestionably an invitee. 

As to an invitee, the landowner must exercise reasonable care to protect the invitee from a 

“dangerous condition . . . known or discoverable to” the landowner. Wal-Mart Stores, Inc. v. 

Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). To prevail on a premises liability claim, the invitee

must show: (1) actual or constructive knowledge of a defective condition on the owner’s 

premises; (2) the defective condition did in fact pose an unreasonable risk of harm; (3) the owner 

failed to exercise reasonable care to reduce or eliminate the risk; and (4) the owner’s failure to 

exercise reasonable care proximately caused the plaintiff’s injuries. Id. at 936.
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Knowledge

Mass Marketing first contends the evidence is insufficient to establish Mass Marketing

had actual or constructive knowledge of a defective condition that posed an unreasonable risk of 

harm on its premises. We disagree.

An invitee may prove the owner had actual knowledge of the defective condition or that 

the owner reasonably should have known of the defective condition. State Dept. of Highways &

Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). If a reasonable inspection would have 

revealed the defective condition, the owner is charged with constructive knowledge of that 

defective condition. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983) (citing 

Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 455 (Tex. 1972)). Moreover, if the dangerous 

condition existed for a long enough period for the owner to have discovered it upon reasonable 

inspection, constructive knowledge is imputed. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 

101 (Tex. 2000).

Joel Griffith, director of human resources for Mass Marketing, testified that around the 

Fourth of July, corn is a popular item and many people would rather take the husks off the corn 

in the store rather than wait until they get home. Given the customers’ preference, Griffith 

testified Mass Marketing sends out a merchandise bulletin to individual stores asking that a trash 

can be placed near the corn display. Griffith testified the trash can should be large enough to 

hold “your typical tall kitchen trash bag” so as to be open and obvious to passing customers. 

Griffith admitted he was not at the Super S Foods store when Durbin fell so he could not testify 

as to what size trash can was actually being used. However, Clem Durbin testified that after his 

wife tripped, he saw a store employee remove a milk crate full of corn husks from the area near

where Durbin fell. There was also testimony from two other store patrons, not present on the 
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day of the accident, that they frequently saw milk crates, not trash cans, being used for discarded 

corn shucks. These witnesses stated they observed this both before the date of the accident and 

up until a week after the accident. In contrast, Velma Mascorro, an assistant manager at the 

Super S Foods store, testified for the defense that there was not a milk crate next to the corn 

display and that Durbin kept telling her Durbin’s knee constantly gave out.

Mass Marketing argues that because there were no prior complaints or reports of injuries 

stemming from the condition at issue, it conclusively established Mass Marketing had no actual 

knowledge a defective condition existed on its premises. Mass Marketing cites to Univ. of Tex.-

Pan Am. v. Aguilar for this proposition. See 251 S.W.3d 511 (Tex. 2008). The supreme court 

held in Aguilar there is not one particular test to determine actual knowledge of a defective 

condition, but courts may “consider whether the premises owner has received reports of prior 

injuries or reports of the potential danger presented by the condition.” Id. at 513. However, the 

court did not hold that an absence of prior complaints or reports conclusively negates actual 

knowledge. See id.

In Aguilar, the plaintiff tripped over a water hose that was lying across a sidewalk. Id. at 

512. The Corpus Christi Court of Appeals held the University’s safety manual, which discussed 

only indoor safety, created a fact issue as to whether the University had actual knowledge the 

water hose created an unreasonable risk of harm. Id. The supreme court reversed, explaining the 

safety manual did not expressly discuss outdoor safety, and because the manual did not 

specifically identify the risk complained of, it could not be used as evidence of actual 

knowledge. Id. at 514.

Here, the Mass Marketing safety manual expressly forbids employees from leaving 

empty milk crates in the aisles. Griffith specifically testified this provision is in the safety 
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manual because empty milk crates create a tripping hazard. Our case is distinguishable from 

Aguilar because here, the safety manual did identify the specific risk complained of and the jury 

was allowed to take it into consideration.

We hold the evidence supports the reasonable inference that Mass Marketing had 

knowledge small crates create a tripping hazard, and therefore, a defective condition that created 

an unreasonable risk of harm. Any inconsistencies in the evidence were apparently resolved in 

Durbin’s favor by the jury. Also, because Clem testified the crate in question had corn husks in 

it, it was reasonable for the jury to conclude the crate was in that position long enough for Mass 

Marketing to discover the defective condition upon reasonable inspection and remove it.

We therefore hold the evidence is legally and factually sufficient to support the jury’s 

finding that Mass Marketing had knowledge of the defective condition. 

Proximate Cause

Mass Marketing next contends the evidence is insufficient to prove Mass Marketing

proximately caused Durbin’s injuries by failing to exercise reasonable care to reduce or eliminate 

a defective condition on its premises that posed an unreasonable risk of harm.

A plaintiff in a premises liability action must prove the act or omission by the landowner 

proximately caused the plaintiff’s injury. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 552 (Tex. 

2005). Proximate cause has two elements: cause in fact and foreseeability. Del Lago Partners, 

Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010). For cause in fact to exist, the defendant’s act or

omission must be “a substantial factor in causing the injury and without which the injury would 

not have occurred.” Id. at 774. 

Here, Clem’s testimony was some evidence that Durbin tripped over the milk crate next 

to the corn display. Moreover, there was evidence the accident was foreseeable because the 
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safety manual forbids employees from leaving milk crates in the aisles because, according to 

Griffith, they create a tripping hazard. Although Durbin testified she did not remember the fall, 

and Clem testified he did not see the empty milk crate until after his wife fell and a Super S 

Foods employee removed it, there was testimony that Super S Foods frequently used empty milk 

crates as a trash container for discarded corn husks both before and after the accident. It was 

within the jury’s purview to resolve these inconsistencies, and they did so in favor of Durbin.

Mass Marketing argues that because Durbin has been diagnosed with cataracts, vertigo,

an “unsteady gait,” and has fallen in the past, she fell because of these medical conditions and 

not because she tripped over a milk crate. Additionally, Mass Marketing contends it was not the 

proximate cause of Durbin’s injuries because evidence was introduced showing Durbin fell again 

after the accident at Super S Foods and before she first saw Dr. Steffen. Dr. Steffen testified the 

leg fracture was related to a fall, but he could not say which fall. When questioned as to why 

Durbin’s tibia fracture did not show up on the x-ray in the ER but did show up a week later on 

the MRI, Dr. Steffen said that sometimes nondisplaced fractures do not show up on regular xrays and can be seen only on an MRI. Dr. Steffen opined that because Durbin complained of 

pain at the site of the fracture in the ER immediately after the accident, he believed the fracture 

occurred during the fall at the Super S Foods, and not during Durbin’s subsequent fall. 

Again, when presented with this evidence, it was up to the jury to resolve the

inconsistencies, and they did so in favor of Durbin. Accordingly, we hold the evidence is legally 

and factually sufficient to enable a reasonable and fair minded jury to find that Mass Marketing

proximately caused Durbin’s injuries.
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Admission of Affidavits

In its third issue, Mass Marketing contends the trial court erred in admitting medical 

service affidavits and the accompanying medical bills, and the evidence is insufficient to support 

the jury’s award of damages.

Admissibility of Medical Service Affidavits

The decision to admit or exclude evidence is within the trial court’s discretion. Nat’l 

Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527–28 (Tex. 2000). When reviewing a trial 

court’s evidentiary decisions, we use an abuse of discretion standard. Id. at 527–28. “The test 

for abuse of discretion is whether the trial court acted without reference to any guiding rule or 

principles.” Larson v. Downing, 197 S.W.3d 303, 304–05 (Tex. 2006) (quoting Broders v. 

Heise, 924 S.W.2d 148, 151 (Tex. 1996)). Even if we determine the trial court abused its 

discretion in making its evidentiary ruling, it is still subject to a harmless error analysis, and we 

will not reverse the trial court’s judgment unless the ruling probably caused the rendition of an 

improper judgment. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 

2000).

Mass Marketing contends the medical affidavits admitted into evidence did not meet the 

requirements of section 18.001 of the Texas Civil Practice and Remedies Code. To comply with 

the statute, an affidavit must be sworn, made by the person who either provided the service or the 

person in charge of the records showing the service provided, and have an itemized receipt of the 

service and charge. TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(c) (West 2008). Unless a 

controverting affidavit is filed, the affidavit is sufficient evidence for a finding of fact that the 

amount charged for the service was reasonable or necessary at the time it was provided. Id. 

§ 18.001(b). Section 18.002 sets forth a sample form for the affidavit, but also provides that use 
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of the form is not exclusive as long the affidavit substantially complies with section 18.001. Id. 

§ 18.002(c). 

In reviewing the affidavits at issue, we hold they substantially comply with section 

18.001. Each affidavit was sworn, made by the person who either provided the service or the 

person in charge of the records showing the service provided, itemized, and facially established

the expenses were reasonable and necessary. Although the affidavits do not conform to the exact 

language and form of the sample affidavit in section 18.002, they do comply with the three 

statutory requirements. See id. § 18.001(c). By the specific terms of the statute, the sample 

affidavit is just that, a sample, and as long as the affidavit substantially complies with section 

18.001, it is sufficient evidence to prove reasonableness and necessity of medical services. See 

id. § 18.002(c). Accordingly, we hold the trial court did not abuse its discretion in admitting the 

affidavits and their corresponding medical bills.

Damages

Using the same standard of review set forth above to review the legal and factual 

sufficiency of the evidence to support the jury’s award of damages, we hold the evidence is 

sufficient to support the jury’s damage award.

To prove the reasonableness and necessity of medical services, a plaintiff may either 

submit an affidavit or provide expert testimony. Whitaker v. Rose, 218 S.W.3d 216, 223 (Tex. 

App.—Houston [14th Dist.] 2007, no pet.) (citing Texarkana Mem’l Hosp., Inc. v. Murdock, 946 

S.W.2d 836, 840 (Tex. 1997)). Unless a controverting affidavit is filed, an affidavit that 

complies with section 18.001 “is sufficient evidence to support a finding of fact by judge or jury 

that the amount charged was reasonable or that the service was necessary.” TEX. CIV. PRAC. &

REM. CODE ANN. § 18.001(b). This court has previously explained that affidavits admitted under 
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section 18.001 are “sufficient evidence to support a finding of fact.” Barrajas, 945 S.W.2d at 

209 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b)). Other courts of appeals have 

also determined that an uncontroverted affidavit provides the fact finder with legally sufficient 

evidence to establish that the medical expenses were reasonable and necessary at the time. See, 

e.g., Gutierrez v. Martinez, No. 01-07-00363-CV, 2008 WL 5392023, at *9 (Tex. App.—

Houston [1st Dist.] Dec. 19, 2008, no pet.) (mem. op.); Hong v. Bennett, 209 S.W.3d 795, (Tex. 

App.—Fort Worth 2006, no pet.).

Mass Marketing did not file controverting affidavits. Although an uncontroverted 

affidavit is not conclusive evidence of the reasonableness and necessity of the medical expenses 

and the jury is not required to award any or all of the damages found in the affidavits, the jury 

may do so if it chooses. Barrajas, 945 S.W.2d at 208–09. Moreover, Durbin produced not only 

the affidavits, but introduced expert testimony from Dr. Steffen that Durbin’s medical expenses 

were reasonable and necessary. Accordingly, Durbin’s uncontroverted affidavits, particularly 

when considered with Dr. Steffen’s testimony, are sufficient evidence to support the jury’s 

damage award. 

Jury Argument

Finally, Mass Marketing contends Durbin’s attorney made an incurable jury argument 

during his closing.

To preserve error for appellate review of an improper jury argument, a timely objection 

must be made and subsequently overruled. Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 

678, 680 (Tex. 2008) (per curiam). Because retraction by counsel or an instruction by the court 

can usually cure any harm, the only time an appellate court may review an unpreserved challenge 

to an improper jury argument is in the rare instance when the argument is deemed incurable. Id. 
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If incurable, the complaining party is not required to show an objection at trial but must show 

retraction by counsel or an instruction by the court would not have cured the alleged harm. Id. 

To be incurable, the argument must have been so extreme that a “juror of ordinary intelligence 

could have been persuaded by that argument to agree to a verdict contrary to that to which he 

would have agreed but for such argument.” Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 

2009) (quoting Goforth v. Alvey, 271 S.W.2d 404, 404 (Tex. 1954)).

Mass Marketing cites twenty-six comments made by Durbin’s attorney during closing 

argument, alleging the comments were harmful and prejudicial, and could not have been cured 

by a retraction or an instruction. However, Mass Marketing failed to make a timely objection to 

any of the comments, and therefore must show one or more were incurable. In its brief, Mass 

Marketing alleges all of the comments constitute incurable jury argument, but fails to cite any 

authority to support its contention or even explain how the comments were incurable. In other 

words, Mass Marketing provides no argument in support of its contentions. Rule 38.1(i) of the 

Texas Rules of Appellate Procedure requires a brief to include a “clear and concise argument for 

the contentions made with appropriate citations to authorities.” TEX. R. APP. P. 38.1(i). Because 

Mass Marketing has inadequately briefed this issue by failing to provide any argument or citation 

to authority, nothing is presented for our review. See id; In re B.L., No 04-05-00621-CV, 2006 

WL 1895450, at *5 (Tex. App.—San Antonio July 12, 2006, pet. denied) (mem. op.) (citing 

Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (holding 

appellate court has discretion to deem points of error waived due to inadequate briefing)). 

Accordingly, we overrule Mass Marketing’s fourth issue.
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CONCLUSION

Based on the foregoing, we overrule Mass Marketing’s issues and affirm the trial court’s 

judgment.

Marialyn Barnard, Justice