* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-20613

Summary Calendar

_______________

JAMES DILLON,

Plaintiff-Appellee,

VERSUS

WAL-MART STORES, INC.,

and

DICTAPHONE CORP.,

Defendants,

WAL-MART STORES, INC.,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-95-CV-814)

_________________________

October 5, 1998

Before JOLLY, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

In a diversity action based on premises liability, James

Dillon sued Wal-Mart Stores, Inc. (“Wal-Mart”), and Dictaphone

Corporation for injuries sustained from a fall from a ladder on

Wal-Mart's premises. A jury awarded $170,000 in damages and future
2

medicals. We reduce the damages and render judgment.

I.

Working as a repairman for Dictaphone Corporation, Dillon was

dispatched to a Wal-Mart store to repair a satellite dish on the

roof. The ladder leading to the roof was located inside the store,

in an area restricted to employees and other authorized personnel.

As a repairman, Dillon was authorized to use this ladder and had

done so several times in the past.

On the date of the accident, Dillon climbed up and down the

ladder two times without incident, but when he climbed down the

third time, he cut his left hand on a “bur” on one of the rungs,

causing him to lose his balance and fall to the floor. Dillon was

carrying the satellite head in one hand and was not using the

safety devices Dictaphone had provided him (a safety belt and rope

and pulley gear). A jury found Wal-Mart 80% at fault and

Dillon 20%.

II.

The court instructed the jury that Wal-Mart's duty to Dillon

encompassed the use of “ordinary care to reduce or eliminate an

unreasonable risk of harm created by a premises condition that the

owner or occupier knows about or in the exercise of ordinary care

should know about.” This was a correct statement of the law. See

Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Montes v.

Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 107 (Tex. App.SSEl Paso
 

1 For purposes of this discussion, we assume, as per Wal-Mart's argument,

that Dillon was an independent contractor and thus an invitee.

3

1997, writ denied).

Wal-Mart argues that a different standard of care applies to

business invitees, including independent contractors, under Texas

law.1 According to Wal-Mart, occupiers of land do not have a duty

to protect invitees from open and obvious hazards. See Summers v.

Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 28 (Tex. App.SSHouston

[1st Dist.] 1995, writ denied). In support of its argument,

Wal-Mart cites the following:

The Supreme Court also stated that if there

are dangers that are open and obvious of which

an invitee knows or of which it is charged

with knowledge, then the occupier owes the

invitee no duty to warn or to protect the

invitee.

Id. at 28 (citing Halepeska v. Callihan Interests, Inc., 371 S.W.2d

368, 378 (Tex. 1963)). Correspondingly, Wal-Mart requested a jury

instruction reflecting this articulation of the “no-duty” rule.

Because Summers's articulation of the law was incorrect, Wal-Mart's

requested instruction was properly denied.

In Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978),

the court unequivocally abolished the “no duty” rule. See Parker,

565 S.W.2d at 517 (“We now expressly abolish the so-called no-duty

concept in this case and . . . henceforth in the trial of all

actions based on negligence . . . .”) (quotations omitted).

Therefore, the Summers court unfortunately cited to a holding from

a 1963 case, Halepeska, which had been overruled by Parker in 1978.
 

2 The other two cases cited by Wal-Mart in support of the no-duty rule,

M-T Petroleum, Inc., 926 S.W.2d 814 (Tex. App.SSEl Paso 1996, no writ), and Richard

v. Cornerstone Constr., Inc., 921 S.W.2d 465 (Tex. App.SSHouston [1st Dist.] 1996,

writ denied), do so, if at all, in dicta only. These cases did not concern open and

obvious hazards, nor did they deal with premises liability on facts analogous to the

instant matter. See M-T Petroleum, 926 S.W.2d at 816-17; Richard, 921 S.W.2d at

468.

4

So, Wal-Mart's argument is without authoritative support.2 

III.

Wal-Mart challenges the $100,000 awarded for medical costs,

claiming that Dillon's discovery violations barred the admission of

evidence used to calculate the award and that the award is not

supported by sufficient evidence and exceeds the amount of costs

conceded by Dillon's attorney in closing argument. We agree in

part.

A.

Evidentiary rulings are matters within the district court’s

discretion and are reversed only for manifest error. Guillory v.

Dotmar Indus., 95 F.3d 1320, 1329 (5th Cir. 1996). It was not an

abuse of discretion to allow either the past medical expenses, or

testimony regarding them, into evidence. Although Dillon was tardy

in producing his medical bills, any error in admitting them was

harmless. Wal-Mart had timely notice of them, and the court

limited their use to those that he could prove through other

evidence.
5

B.

We agree with Wal-Mart's assertion that the record does not

support a medicals award of $100,000 and that Dillon's counsel's

acknowledgment of $39,118.26 in medical costs is chargeable against

Dillon, serving as a cap on what the court may award. Because an

award of $39,118.26 could be rationally supported by the record, we

set this amount as the proper medicals award.

In King v. Armstrong World Indus., 906 F.2d 1022, 1025 (5th

Cir. 1990), we held that an attorney's remarks, made in closing,

constituted binding admissions against the party he represented.

King is consistent with long-established Supreme Court and Fifth

Circuit precedent:

The power of the court to act in the

disposition of a trial upon facts conceded by

counsel is as plain as its power to act upon

the evidence produced. . . . In the trial of

a cause the admissions of counsel, as to

matters to be proved, are constantly received

and acted upon. They may dispense with proof

of facts for which witnesses would otherwise

be called. They may limit the demand made or

the set-off claimed.

Oscanyan v. Arms Co., 103 U.S. 261, 263 (1880) (emphasis added);

Collins v. Texas Co., 267 F.2d 257, 258 (5th Cir. 1959) (citing

Oscanyan as good authority).

While Dillon is correct in asserting that attorneys'

statements do not constitute substantive evidence, he is incorrect

in concluding from this that such statements cannot constitute

admissions chargeable against a party. The terms “evidence” and

“admissions” represent different concepts: Evidence presented at

trial serves to assist the factfinder in ascertaining the truth;
6

admissions made at trial constitute the truth. That is, an

admission establishes, conclusively, a legally operative truth,

whereas evidence serves merely as the building blocks of truth.

See generally Ediberto Roman, "Your Honor, What I Meant to State

Was . . .”: A Comparative Analysis of the Judicial and Evidentiary

Admission Doctrines as Applied to Counsel Statements in Pleadings,

Open Court, and Memoranda of Law, 22 Pepp. L. Rev. 981 (1995). 

IV.

Wal-Mart challenges the apportionment of liability. There

was, however, sufficient evidence from which the jury could

conclude that Wal-Mart was 80% liable. Wal-Mart’s negligence in

providing Dillon with a dangerously defective ladder was the

primary cause of this incident. The role played by Dillon’s

failure to use his safety equipment, and by his pre-existing

condition (diabetes), is uncertain at best, and a 20% apportionment

on account of these factors is not unreasonable.

Wal-Mart is also incorrect in asserting that the OSHA safety

regulations were erroneously presented to the jury. As Dillon

accurately points out, such regulations are useful evidence of the

standard of care with which Wal-Mart had a duty to comply. See

Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718, 720 (Tex. App.SSSan

Antonio), appeal dismissed, 1995 WL 654562 (Nov. 8, 1995).

V.

Wal-Mart complains of the decision to allow the jury to
7

examine photocopies of certain photographs admitted into evidence.

Allowing the jurors to examine these photocopies during

deliberations did not constitute harmful error, because it could

have had no prejudicial effect on deliberations. The jurors were

already permitted to review the photographs, and the enlargement of

them via photocopying rendered them neither inaccurate nor

prejudicial.

The judgment is MODIFIED, and judgment is hereby RENDERED for

$109,118.26.