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PREMISES LIABILITY UPDATE by Amanda Bigbee, Associate

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1. McClure v. Rich, 2002 WL 31835743 (Tex. App.--Dallas 2002, no pet. h.)

The existence of fact issues regarding whether Plaintiff was a licensee and whether premises conditions were unreasonably dangerous prohibited summary judgment.

Plaintiff brought a negligence suit against her in-laws after tripping on a throw rug and falling over moving boxes while helping her in-laws move into their new home. The in-laws moved for a summary judgment on the grounds that they had no actual or constructive knowledge of the condition caused by the throw rug, nor did they have a reasonable time to discover the condition. The in-laws also asserted there was no evidence that they failed to exercise reasonable care and that the fall did not proximately cause their daughter-in-law’s injuries. Plaintiff responded that she was owed the duties of an invitee, not a licensee.

The test for duty differs depending on whether the Plaintiff was an invitee or a licensee. A property owner’s friends or family are generally treated as licensees. An invitee, though, is usually defined as someone who enters onto property with the owner’s knowledge and for the mutual benefit of both parties. The Court held that, although Plaintiff was a relative, she was not on the premises for a social event and that the in-laws arguably received an economic benefit from Plaintiff’s help. Summary judgment was improper because the Plaintiff presented fact issues, which included whether an owner of ordinary prudence would have placed a rug without proper non-skid backing on a wood floor while people were moving furniture. The Court failed to note that it is arguably unwise to imply that your in-laws are not people of ordinary prudence.

2. Allen v. Albin and Haferkamp, ___ S.W.3d ___, 2002 WL 31926413 (Tex. App.--Waco 2002, no pet. h.)

Trial court erred in granting summary judgment for Defendants on premises liability action filed to recover for damages resulting from an injury inflicted by a dog.

Haferkamp provided day-care services to seventeen-month-old Bradley Allen. Haferkamp’s yard was divided from her next door neighbor’s yard with a chain-link fence. A dog in the neighbor’s backyard bit or scratched Bradley through the chain-link fence. Bradley suffered lacerations to his face, which required stitches and eventual plastic surgery. Allen pleaded multiple causes of action against Haferkamp and the neighbor, including a premises liability action against Haferkamp which claimed Bradley was injured by a condition of Haferkamp’s property, i.e., the chain-link fence. Allen further alleged that Bradley was Haferkamp’s business invitee and Haferkamp owed a duty of ordinary care.

Haferkamp’s summary judgment motion attacked the proximate cause element of the premises liability claim, particularly the forseeability portion. Allen presented evidence that indicated Haferkamp was aware that the neighbor kept the dog that attacked Bradley and had even allowed the children she baby-sat to play with the dog. The neighbor’s grandson indicated that Haferkamp allowed the children to play with the dog unattended through the fence. The Court held, therefore, that a jury could find that Bradley’s injury was of such a "general character as might reasonably have been anticipated" and that Bradley was so similarly situated in relation to the wrongful act that the injury to him or to someone similarly situated might reasonably have been foreseen.

3. Rape v. M.O. Dental Lab, 2003 WL 69534 (Tex. App.--Fort Worth 2003, pet. filed).

Trial court erred in granting summary judgment for Defendants on slip-and-fall premises liability claim for alleged fall on defendant’s sidewalk.

Plaintiff allegedly slipped and fell on a "slippery mud substance" on Defendant’s sidewalk. Plaintiff alleged Defendant’s negligently allowed the slippery mud substance to accumulate and to create an unreasonably dangerous condition. Defendants moved for a summary judgment. The trial court held that no dangerous condition as a matter of law and that the Defendants committed no acts of negligence in relation to the accident.

Plaintiff and Defendants agree that Plaintiff was on the premises as an invitee. Plaintiff argued and the Court agreed that there is a fact issue as to whether the slippery substance was a condition posing an unreasonable risk. The Court noted that there is no definitive, objective test which may be applied to determine whether a condition presents an unreasonable risk of harm. On the issue of acts of negligence, the Court held the Defendant failed to seek relief on this ground. Because summary judgment motions must specifically state the grounds on which relief is sought, the summary judgment was not proper on based on the trial court’s finding that the Defendants did not act negligently.

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If you have any questions about any of these cases or would like copies of specific cases, please contact Amanda Bigbee (ABigbee@fhmlaw.com).

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© Fanning, Harper & Martinson, P.C., March 4, 2003.

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