### MEMORANDUM OPINION
N o. 04

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- 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 i ts 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 eliminate04

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- a defective condition on its premises which posed an unreasonable risk of harm ; (3) the trial court erred in ad mitting medical service a ffidavits , and the evidence is legally and factually insufficient to support the jury’s award of damages; and (4) Durbin’s attorney made an incu rable jury argument. We affirm the trial court’s judgment.
B ACKGROUND 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 dis pl ay. 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 emerg enc y 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 t o Sports Medicine A ssociates 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 prescri bed 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. T he jury reached a ver dict in favor of Durbin and awarded her $145,000 in damages , including $106,000 for past me dical expenses . T he trial court reduced this damage award to $52,424.63 , i n accordance with section 41.0105 of the Texas Civil Practice & Remedies Code , and rendere d judgment on the verdict

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- D ISCUSSION Sufficiency of the Evidence In its first and second issue s , Mass Marketing contends the evidence is legally and factually insufficient to prove (1) Mass Marketing had actual or const ructive 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 pr oximate 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 i d

. 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 evid ence 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 establishe s conclusively the opposite of the vital fact.” Id. at 810 (quoting Robert W. Calvert, “ No Evidence ” & “ Insufficient Evidence ” Points of Error , 38 T EX
. L. R EV
. 361, 362

– 63 (1960)). If the record contains any probative evidence in support of the jury’s fi ndings, 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 the04

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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 , 1 68 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 t he 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 invi tee , usually a business visitor, is one who enters for the mutual benefit of both the invitee and the landowner. Id. at 536 (citi ng R ESTATEMENT (S ECOND ) OF T ORTS § 332 (1965)). Here, Durbin was unquestionably an invitee.
As to an invitee, the land owner must exercise reasonable care to protect the invitee from a “dan gerous 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 premise s liability claim, the invitee

m ust show: (1) actual or constructive kno wledge 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 936.04

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- Knowledge
Mass Ma rketing fir st contends the evidence is insufficient to establish Mass Marketing had a ctual or constructive knowledge of a defect ive condition that posed an unreasonable risk of harm on its premises

. We disagree.
A n invitee may prove the owner had actua l knowledge of the defective condition or that the owner reasonably shoul d have known of the defective condition

. State Dept. of H ighways & Pub. Transp. v. Payne , 838 S.W.2d 235, 237 (Tex. 1992). If a reasonable inspe ction would have reveal ed the defective condition, t he owner is char ged w ith 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, i f 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 fo r Mass Marketing , testified that around the Fourth of July, cor n is a popular item and many people would rather take the husks off the cor n in the store rather than wait until they get home

. Given the customers’ preference, Griffith testified Mass Marketing sends o ut a merchandise bulletin to individual stores asking that a trash can be placed near the corn d isplay. Griffith testified the trash can should be large enough to hold “your typical tall kitchen trash bag” s o 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 wa s 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 the04

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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 c rate 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 fr om 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 fo r this proposition. See 251 S.W.3d 511 (Tex. 2008). T he 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 pri or injuries or reports of the potential danger presented by the condition

. ” Id. at 513. However, t he court did not hold that an absence of prior complaints or reports conclusively negate s 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 A ppeals 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. T he suprem e 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 t estified this provision is in the safety04

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- manual b ecause empty milk crates create a tripp ing 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 t he evidence supports the reasonable inference that Mass Mark eting ha d 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. A lso, because Clem test ified 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 e vidence is legally and factually sufficient to support the jury’s finding that Mass Marketing had knowledge of the defective condition

. Proximate Caus e Mass Marketing next contends the evidence is insufficient to prove Mass Marketing proximately caused D urbin’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 proxima tely 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 P artners, Inc. v. Smith , 30 7 S.W.3d 762, 774 (Tex. 2010). For cause in fact t o 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 th at Durbin tripped over the milk cr ate next to the corn display

. Moreover, there was evidence the accident was foreseeable because the04

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- safety manual forbid s employees from leaving mi lk crates in the aisles because, acc ording to Griffith, they create a tripping hazard. Although Durbin testified s he did no t 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 . I t 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 wa s not the proximate cause of Durbin’s injur ies because evidence was introduced showing Durbin f ell again after t he 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 t ibia fracture did not show up on the x

- ray in the ER but did show up a week later o n the MRI, Dr. Steffen said that sometimes nondisplaced fractures do not show up on regular x

rays and can be seen only on an MRI. Dr. Steffen opined that because Durbin complained of pain at the site of the fra cture in the ER immediately after the accident, he believed the fracture occurred during the fall at the Super S Foods , and not during Dur bin’s subsequent fall. Again , when presented with this evidence, it was up to the jury to resolve the inconsistenci es , and they did so in favor of Durbin. Accordingly, w e hold the evidence is legally and factually sufficient to enable a reasonable and fair minded jury to find that Mass Marketing proxima tely caused Durbin’s injuries.04

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- Admission of Affidavits In its th ird iss ue, Mass Marketing contends the trial court erred in admitting medical service a ffidavits and the accompanying medical bills, and the evidence is insufficient to support the jury ’s award of damages

. Admissibility of Medical Service Affidavits The d ecision 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). W hen reviewing a trial court’s evidentiary decisions, we use an abuse of discretion standard. Id. at 52 7

– 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 ru ling, it is still subject to a harmless error analysis, and w e 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 af fidavit must be sworn , made by the person who either provided the service or the person in charge of the recor ds showing the service provided, and have an itemized receipt of the service and charge. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 18. 001 (c) (West 2008 ) . Unless a
contro verting 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 se ts forth a sample form for the affidavit , but also provides that use04

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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 affid avits 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 recor ds showing the service provided, itemized , and facial ly established the expenses were reasonable and necessary. A lthoug h the affidavits do not conform to the exact la nguage and form of the sample affidavit in sec tion 18.002, they do comply with the three statutory requir ements

. 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 an d n ecessity of medical services. See
id. 

### § 18.002(c). Accordingly, we hold t he 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 suffici ent 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 p et.) (citing Texarkana Mem’l Hosp., Inc. v. Murdock , 946 S.W.2d 836, 840 (Tex. 1997)). U nless a controverting affidavit is filed, an affidavit that complies w ith 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.” T EX
. C IV
. P RAC
. &
R EM
. C ODE A NN
. § 18.001(b)

. This court has previously explained that affidavits admitted under04

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- section 18.001 are “sufficient evidence to support a finding of fact.” Ba rrajas , 945 S.W.2d at 2 09 (quoting T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 18.001(b))

. Other courts of appeals have also determined that an uncon troverted affidavit provides the fact finder with legally sufficient evidence to establish that the medical expense s were reasonable and necessary at the time. See , e.g., Gutierrez v. Martinez , No. 01

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- 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 pe t.). 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 choose s . 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. Accord ingly, Durbin’s uncontroverted affidavits , particularly when considered with Dr. Steffen’s testimony, are sufficient evidence to support the jury’s damage award

. J ury Argument Finally , Mass Marketing contends Du rbin’s attorney made an incurable jury ar gum ent 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)

. B ecause retr action by counsel or an instruction by the court

can usually cure any harm, t he 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.04

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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 cure d the alleged harm

. Id.
T o be incurable, t he argument must have been so extreme that a “juror of or dinary 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, 40 4 (Tex. 1954) )

. Mass Marketing cites twenty

- six comments made by Durbin’s attorney during clo sing argument, alleging the comments were harmful and p rejudicial , and c ould not have been cured by a retraction or an instruction

. However, Mass Marketing failed to make a timely object ion 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 autho rity 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 c ontentions made with appropriate citations to authorities.” T EX
. R. A PP
. 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

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- 00621

- CV, 2006 WL 1895450, at *5 (Tex. App.

— San Antonio Jul y 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 point s of error waived due to inadequate bri efing)). Accordingly, we overrule Mass Marketing’s fourth issue.04

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- C ONCLUSION Based on the foregoing, we overrule Mass Marketing’s issues and affirm the trial court’s judgment.

Marialyn Barnard, Justice