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PREMISES LIABILITY UPDATE by Amanda Bigbee, Associate

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1. Wal-Mart v. Miller, 102 S.W.3d 706 (Tex. 2003).

The plaintiff, a licensee, had actual knowledge of dangerous condition on a stairway; therefore, he could not recover on his premises liability claim.

The Plaintiff was escorted to a staircase leading to a storeroom on Wal-Mart’s premises. On the way up the stairs, plaintiff noticed Wal-Mart’s employees placing boxes on the stairs and that the stairs were "kind of slippery or slick." On the way back down the stairs, plaintiff claimed to have held onto the stairway’s one handrail but released it halfway down the stairs to walk around the boxes stacked on the side. Plaintiff’s foot caught one of the boxes, and he slipped and fell. Plaintiff sued Wal-Mart under a premises defect theory, claiming defendant failed to make the stairway safe and failed to warn plaintiff about the dangerous condition of the stairs.

Plaintiff argued that even though he knew about the wet steps and boxes stacked on the stairway, he did not know the danger these conditions presented. The Court opined that to establish liability for a premises defect, a licensee must prove, among other things, that "the licensee did not actually know about the alleged dangerous condition." If the licensee and the licensor have the same knowledge about the dangerous condition, no duty to the licensee exists. Here, plaintiff had actual knowledge of the dangerous condition and Wal-Mart was relieved of any duty to warn or make safe the dangerous condition.

2. Brookshire Grocery Co. v. Taylor, 102 S.W.3d 816 (Tex.App.–Texarkana 2003).

Plaintiff argued Brookshire’s placement of a soft drink dispenser on the floor with inadequate matting around it was the dangerous condition that caused her injuries after a slip and fall.

Plaintiff, an invitee, slipped and fell on a puddle of water that had formed on the tile floor directly below a soft drink dispenser. One employee testified that ice fell on the floor on a fairly regular basis and the employees were required to clean the area often to prevent incidents like plaintiff’s accident. There was a rectangular mat lying on the floor under the Coke dispenser, but there was testimony that the mat was inadequate. There were no warning signs in the area. Plaintiff claims that the soft drink dispenser was the dangerous condition, while the Defendant claims the puddle was the dangerous condition.

In Wal-Mart v. Reece, 81 S.W.3d 812, 817 (Tex. 2002), a recent Texas Supreme Court case, the Court held that an increased risk of the likelihood of spills in a self-service beverage area did not relieve the plaintiff from the burden of proving the elements of premises liability. This court distinguishes Reece by pointing out that the issue in that case was whether evidence that a store employee was in close proximity to the dangerous condition right before the fall was legally sufficient to charge the defendant with constructive notice of the dangerous condition. In this case, the issue is whether liability attaches, not because of a particular substance on the floor or because of the proximity of the store employees to the puddle, but because of an alleged unreasonably dangerous method of display that caused melting ice to become a floor hazard on a regular basis. The court held that regardless of knowledge of this particular piece of melted ice on the floor, Defendant knew the danger its soft drink dispenser posed to its customers. Plaintiff's Motion for Summary Judgment on the issue of liability was granted by the trial court and upheld by this court of appeals.

3. Wal-Mart v. Diaz, 2003 WL 21234089 (Tex.App.–Fort Worth, 2003).

A business’s policy of allowing customers to carry drinks in its store does not, by itself, establish negligence, but does effect what the standard of ordinary care requires under the circumstances.

Plaintiff slipped and fell on a transparent liquid spilled from a cup hidden under a pillow sticking out from a bottom shelf in the bedding aisle. Plaintiff did not see any ice, liquid, or the cup before she fell. There were no footprints, dirt, or cart tracks in the liquid. Plaintiff alleges that Wal-Mart was liable for the premises defect and for failing to inspect and maintain the premises and warn about the defect–the spilled drink. Plaintiff also alleges Wal-Mart was negligent in allowing its customers to carry uncovered drinks on its premises.

In 1998, this same court of appeals, in Wal-Mart Stores, Inc. v. Rangel, 966 S.W.2d 199, 202 (Tex.App.–Fort Worth, 1998), held that Wal-Mart’s policy of allowing its customers to carry food and drink into the store created a foreseeable danger and risk of harm that Wal-Mart negligently failed to prevent by ordinary care with reasonable precautions. This court has overruled Rangel in holding that the mere fact that Wal-Mart allows its customers to carry drinks in its store does not, without more evidence, show a condition on the premises that poses an unreasonable risk of harm.

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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., July 2003.

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