PREMISES LIABILITY UPDATE
by Amanda Bigbee - Associate

Puga v. Chavez, 2003 Tex.App. LEXIS 10487 (Tex.App.–Amarillo 2003).

Defendant did not exercise control over non-owned property that his employees used for parking, and Defendant was not, therefore, liable for injuries caused by a slip and fall on ice.

Plaintiff, an employee of Defendant, slipped on a patch of ice while leaving work for lunch.  It is undisputed that Defendant does not own the portion of the lot where Plaintiff fell.  Plaintiff argues that Defendant exercised control over the lot and was responsible for correcting dangerous conditions on the lot.  Plaintiff alleges that Defendant breached the duty of care owed his invitees by failing to warn of and remove the ice.  Defendant was granted a motion for summary judgment and Plaintiff appealed.

The duty to use ordinary care to keep lands adjacent to property owned by Defendant in a reasonably safe condition exists only in relation to property over which the Defendant exercised actual control.  The relevant inquiry is whether the Defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the Defendant had the responsibility to remedy it.  The Court is careful to note that having access to property does not alone signify an individual has control over the property.  Defendant understood that his employees were parking in the lot, but his employees having access to the lot does not necessarily indicate Defendant had control over the lot.  The Court found that Defendant did not sufficiently restrict, regulate, manage, or otherwise control the property on which the Plaintiff fell.  The Plaintiff was unable to prove the necessary premises liability element of actual control and Defendant was, therefore, entitled to summary judgment.

Smith v. HCD Operating Company, 2003 Tex.App. LEXIS 10585 (Tex.App.–Houston, 2003). 

Proving a premises defect takes more than proving a strawberry found its way to the floor—Plaintiff must provide evidence demonstrating how long the rogue strawberry was misplaced.

Plaintiff, while brunching at the Omni Hotel, slipped and fell on a strawberry near the buffet and injured her knee.    Plaintiff claimed that her injuries were caused by a premises defect based on Defendant’s negligence in allowing a dangerous condition to exist and in failing to warn Plaintiff of the condition.  Defendant filed a no-evidence motion for summary judgment asserting that it had no actual notice of the dangerous condition and Plaintiff failed to present evidence of constructive notice.  The trial court granted Defendant’s no-evidence motion for summary judgment.

Plaintiff argues that there is a fact question as to whether Defendant had constructive notice of the condition, i.e. the strawberry on a marble floor.   The Court reaffirms that a Plaintiff may rely on circumstantial evidence to prove constructive notice of a dangerous condition.  Plaintiff pointed to the following factors as evidence of constructive notice:  (1) whole strawberries were part of a display and garnishment near the spot Plaintiff fell, (2) Plaintiff had only cantaloupe on her plate when she fell, (3) no employee assigned to watch the floor saw Plaintiff fall, (4) remnants of strawberry were found on Plaintiff’s shoe heel and dress, and (5) fruit was observed on the floor after Plaintiff fell.  The Court indicates that this list of facts does nothing to prove how long the strawberry was on the floor before Plaintiff slipped on it, which Plaintiff has the duty to prove.  Defendant’s no-evidence motion for summary judgment was properly granted.

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