By: Amy Agnew and William Allred
This article addresses recent trends that we have observed in premises liability cases. Recently, we have both won several premises liability cases through Motions for Summary Judgment for both Braum’s, Inc. and Wal-Mart. The common issue we have discovered in these cases is the ability to show that the Plaintiff should have been on notice of any spill on the premises. Specifically, in a case pending in Federal court styled Judd v. Braum’s, Inc. Judge Godbey wrote an opinion granting Braum’s’ Motion for Summary Judgment. That opinion is as follows:
Where a negligence claim is predicated on a theory of premises liability, as is the case here, an invitee must prove that (1) a condition of the premises created an unreasonable risk of harm to the invitee, (2) the owner knew or reasonably should have known of the condition, (3) the owner failed to exercise ordinary care to protect the invitee from danger, and (4) the owner’s failure was a proximate cause of injury to the invitee. Fort Brown Villas III Condo. Ass’n, Inc. v. Gillenwater, 285 S.W.3d 879, 883 (Tex. 2009). Braum’s challenges Judd’s claim under third element – failure to exercise ordinary care.
As the Texas Supreme Court has recently noted,
A landowner has a duty to exercise reasonable care to make the premises safe for invitees. Obviously, the landowner can satisfy this duty to eliminating the dangerous condition or by mitigating the condition so that it is no longer unreasonably dangerous. But the Court has repeatedly recognized that, in most cases, the landowner can also satisfy its duty by providing an adequate warning of the danger.
Austin v. Kroger Texas, L.P., 2015 WL 3641066, at *4 (Tex. 2015) (internal citation omitted). Put another way, in exercising reasonable care, a landowner has “a duty to warn or make safe, but not both.” State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996). “If the evidence conclusively established that the owner adequately warned the plaintiff of the condition, the owner cannot be found negligent as a matter of law.” Brooks v. PRH Invs., Inc., 303 S.W.3d 920, 925, (Tex. App. – Texarkana 2010, no pet.) (citing Williams, 940 S.W.2d at 584).
Here, there is no dispute as to those facts material to the third element. The evidence clearly establishes that Braum’s adequately warned Judd of the wet floor. Braum’s placed two “wet floor” warning signs on the floor of its restaurant – one by the entrance and one in the middle of the walkway by the fountain area. ... In the surveillance video of the incident, Judd can be seen walking directly past the warning sign by the fountain area just seconds before her fall. …
Judd seeks to create a fact issue regarding the adequacy of these warnings by submitting evidence that she did not see the warning signs. “To be adequate, a warning must be more than a general instruction such as ‘be careful’; the warning must notify of the particular condition.” Henkel v. Norman, 441 S.W.3d 249, 252 (Tex. 2014). “An adequate warning is clearly visible and communicates the specific condition that invitees face.” Wal Mart Stores, Inc. v. Sparkman, 2014 WL 6997166, at *2 (Tex. App. - Fort Worth 2014, pet. filed). There is no dispute that the signs meet all of these requirements. The signs stated the floor was wet and were placed in a manner that made them clearly visible to passersby. In fact, the video shows that Judd walked past one sign so closely that mere inches separated her from the sign. Surveillance Video at 20:58:59. Judd has offered no evidence that the signs’ warnings were too general or that the signs themselves were improperly obscured or placed in the wrong location. Rather, when asked if she knew why she did not see the sign, Judd responded “no.” See Pl’s App. 030 [22]. When she was asked if there was “anything that kept [her] from being able to see [the] wet floor sign,” she responded “[n]ot that I know of.” Id. at 032. Essentially, she has identified no defect in the sign or its warning to challenge its adequacy.
Accordingly, the Court determines that there is no material issue of fact regarding the adequacy of the warning and grants summary judgment in favor of Braum’s on this claim. Because Judd cannot prevail on her negligence claim, she cannot prevail on her claim for gross negligence. Wortham v. Dow Chem. Co., 179 S.W.3d 189, 202 n.16 (Tex App. – Houston [14th] 2005, no pet.). The Court therefore grants summary judgment on that claim as well.
Also, we have been successful in winning summary judgments on the element of Defendant’s knowledge of a condition. A Plaintiff must prove that a Defendant had either actual or constructive knowledge of the condition on the premises. We have succeeded in arguing that a condition that exists on the premises was not known or could not be reasonably detected by the Defendant. In some instances, we have used surveillance video footage to demonstrate that (1) you could not detect the condition on the floor or (2) that the event that caused the condition happened in such a short time period that the Defendant was neither aware nor could have been aware of the condition. We have been successful in pursuing those types of motions.
We also tried a case styled Pecina v. Monterey Foods; in that case the Plaintiff tripped over a rug in the entryway to the store. The Plaintiff tried to argue that the rug was a dangerous condition. We were able to convince a jury that the rug was not a dangerous condition and there was simply no notice that the rug could be flipped over which caused the Plaintiff’s to trip and fall. The jury believed that the Plaintiff simply shuffled her feet and kicked up the rug on her own. We were able to obtain a defense verdict in Judge Ken Molberg’s court in Dallas County, Texas.
Finally, we are pursuing other Motions for Summary Judgment on the basis that the condition complained of by the Plaintiff was open and obvious based on the Kroger case. That case has been outlined in a prior article. See article “Recent Supreme Court Case Regarding Premises Liability: Austin v. Kroger Texas, L.P.” by Amy Agnew.
The basic arguments in these cases are that the alleged dangerous conditions are considered to be open and obvious. This line of reasoning goes into the argument that if the Plaintiff is on notice then the Defendant does not have a duty to warn. We have several cases that are pending both in Federal court and State court on this issue. We are hopeful that we can report in the near future that we have been successful on this argument.