Case Overview

Case Name: Roel Canales v. Pay and Save, Inc.

Case Type: 

  • Slip, trip, and fall
  • Premises liability


  • Anterolisthesis and herniated discs in the back and neck
  • Elbow fracture
  • Comminuted fracture

Plaintiff Attorneys:

  • Jason DeSouza; DeSouza Law, P.C.
  • Paul Bowers; DeSouza Law, P.C.
  • Scott Frederick; J. Scott Frederick Law Office

Defense Attorneys:

  • Hugh Lyle; Mullin Hoard & Brown
  • Angelia Lee; Mullin Hoard & Brown

Case Outcome: Verdict – Plaintiff

Verdict Award: $19,325,000

What Happened?

On May 4, 2016, plaintiff Roel Canales (age 68), an oil field worker, stopped by a grocery store in Freer, Texas to buy a watermelon. The store, Pay and Save, is a family-owned grocery store chain. When Canales entered the Pay and Save store, the watermelons were displayed in three large cardboard bins. Each bin was sitting on top of a wooden pallet. Canales, who was wearing steel-toe boots at the time, placed his foot between the top and bottom of the pallet to grab a watermelon. When he turned to walk away from the display, his right foot got stuck in the pallet, causing him to fall and hit his right elbow.

Canales’s wife took him to a hospital, where it was determined that he suffered a comminuted fracture. This fracture is a type of broken bone where the break is in at least two places. The hospital was unable to treat him. As a result, Canales went to another hospital where he underwent open reduction and internal fixation of his fracture. A cast was applied to his elbow, and he remained hospitalized for two days.

After discharge from the hospital, Canales underwent six weeks of physical therapy for his elbow and seven weeks of physical therapy for his back and neck. He underwent three sets of cervical injections and lumbar epidural injections. Canales also later underwent surgical interventions, including a discectomy, excision of his C5-6 and C6-7 discs, and a fusion of his spine levels. He alleges that he will also need to undergo a laminectomy and partial excision of one or more vertebrae of his spine’s lumbar region. Since the accident, he has been unable to work and enjoy outdoor activities.

The Lawsuit’s Allegations and Trial Testimony

Canales filed a lawsuit against Pay and Save, Inc., the owner of the store. He alleged that the defendant negligently created a dangerous condition that caused his injury. Specifically, the plaintiff’s counsel argued that the space between the top and bottom of the pallet, along with the absence of a pallet guard, created an unreasonably hazardous condition. The display box did have an arrow pointing to the corner of the pallet. However, his counsel argued that the arrow only warned about a tripping hazard. The arrow did not reasonably put customers on notice as to the likelihood of getting stuck in the pallet.

The plaintiff’s counsel also advanced the argument that the pallet had never been inspected throughout the years during its frequent use when transporting the watermelon from the farm, onto a truck, to a distributor, then to a central Pay and Save location, and lastly, to the store. Once the watermelons were sold, the same pallet would be sent back to the farm for reuse for another trip.

The Argument for Pallet Guards

In support of its argument that a pallet should not remain on the floor without a guard, the plaintiff’s counsel presented the testimony of a grocery store management expert. The former store director, owner, and operator testified that the existence of a pallet without a guard is known within the industry to be an unreasonably dangerous condition that should not be allowed to exist longer than a short period, if at all. A pallet guard, which is a barrier around the pallet that covers the spaces between its top and bottom layers, would have taken minimal time to assemble, according to the plaintiff’s counsel. Furthermore, Pay and Save’s corporate representatives allegedly had attended events where pallet guard manufacturers had given presentations and demonstrations.

The plaintiff’s counsel also noted that there was no video of the incident despite the store having several surveillance cameras, including one that pointed to the location of the accident. Allegedly, that specific camera only took still photographs but did not capture any video.

Defense’s Counter Argument

The defense counsel countered the plaintiff’s arguments as to the hazardous nature of the pallet. The defendant noted that the pallet’s presence was open and obvious. Additionally, the store had been transporting and displaying watermelons this way for years without incident. The defense counsel presented their own liability expert, a grocery store manager, who testified that pallet displays are a common industry practice. The expert further testified that he was unaware of stores regularly inspecting their pallets. He also stated that he had never seen or heard of such a thing as a pallet guard.

Who Won the Case?

After a seven-day trial, the jury found that the defendant acted negligently but that Canales’s comparative responsibility was 30%. The jury also found the defendant was grossly negligent. The jury awarded damages totaling $19,325,000.

The award broke out as follows:

  • $260,000 for past medical costs
  • $160,000 for future medical costs
  • $500,000 for past physical impairment
  • $1,000,000 for future physical impairment
  • $13,000,000 for punitive exemplary damages
  • $55,000 for past lost earnings capability
  • $300,000 for past disfigurement
  • $1,500,000 for future disfigurement
  • $1,000,000 for past physical pain and mental anguish
  • $1,500,000 for future physical pain and mental anguish
  • $50,000 for future loss of earning capacity

Expert Specialties

The plaintiff retained expert witnesses in:

The defendant retained expert witnesses in:

Key Takeaways

Notably, Pay and Save appealed the verdict to the Fourth Court of Appeals. The court reversed the verdict in part. The Court of Appeals remanded the case to the trial court for a new trial on premises liability and damages.

The appellate court’s September 14, 2022 opinion found that “there was overwhelming evidence against the jury’s finding that Pay and Save knew or reasonably should have known that a pallet’s side openings presented a sufficient probability of an injury occurring that Pay and Save foresaw, or should have foreseen, as likely to happen.” Specifically, the appellate court noted that there was no evidence of any prior injuries nor evidence that the defendant disregarded any applicable governmental or industry safety standard. As such, the appellate court concluded that the plaintiff failed to meet his burden to prove that the defendant knew or reasonably should have known that the pallet presented “a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.”

The appellate court’s decision makes an important distinction between the possibility, as opposed to sufficient probability, of an injury occurring. What can be a difficult line to draw, especially when setting forth arguments before a jury, the appellate court found that the jury could not have reasonably found that the defendant foresaw, or should have foreseen, that an injury was likely to happen. Canales’s case and its partial reversal operate as a reminder to all attorneys to keep in mind the specific burdens for establishing premises liability. By doing so, any verdict rendered in one’s favor is based on a sound application of the facts to the requisite legal standard.

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