Google Earth photos not enough to support injury from inflatable ‘tube man’ at Mattress Firm, justices find

By David Yates | Aug 9, 2018

Inflatable tube men, also known as “wind dancers,” are meant to grab the attention of potential customers.

In the case of Ena Jones, the whacky gimmick not only caught her attention, but also apparently startled her so bad that she missed her step and fell.

On April 2, 2014, Jones paid a visit to a Houston Mattress Firm, which placed a tube man to attract customers near the store’s entrance.

Jones testified she was startled by the tube man and even told the store manager. Upon exiting, she took an alternate route that involved the use of stairs and was once against startled by the tube man, resulting in her missing a step and falling down.

At trial, Jones sought to introduce Google Earth photographs showing the tube man in different locations.

Mattress Firm objected and the trial court sustained, court records show.

Following a three-day trial, the jury returned a verdict finding neither party negligent. The trial court then signed a take-nothing judgment based on the jury’s finding.

On Aug. 7, the 14th Court of Appeals concluded the trial court did not abuse its discretion in excluding the photos because Jones did not authenticate the dates on each photo, making them irrelevant.  

“In addition, even if error had been shown, the error was harmless because ample photographic and testimonial evidence was admitted bearing on the device’s location at the time of the incident and thereafter,” the opinion states.

“We therefore affirm the trial court’s judgment.”

Many dated photographs of the tube man in various locations were admitted as evidence, court records show.

“Because these admitted photos provide evidence that Mattress Firm changed the location of the tube man after the incident, which is what Jones contends the Google Earth photos were offered to show, the Google Earth photos are cumulative and their exclusion was not harmful,” the opinion states.

“The trial court’s exclusion of the dated Google Earth photographs was not an abuse of discretion, and in any event an erroneous ruling would be harmless.”

Jones is represented by Houston attorney Timothy Hootman.

Mattress Firm is represented by Nicholas Lanza and Steve Dollinger of the Lanza Law Firm in Houston.

Case No. 14-17-00091-CV

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