United States: Unreasonable Risks Of Harm In Texas Premises Liability Cases

In the typical Texas slip-and-fall or trip-and-fall case occurring on a business owner's premises, the plaintiff is a business patron (invitee). This class of plaintiff is afforded the widest protection in a premises case. To recover damages in a slip-and-fall case or trip-and-fall case, a plaintiff who is an invitee must prove:

  1. Actual or constructive knowledge of some condition on the premises by the owner/operator;
  2. That the condition posed an unreasonable risk of harm;
  3. That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and
  4. That the owner/operator's failure to use such care proximately caused the plaintiff's injuries.

A condition poses an unreasonable risk of harm for premises-defect purposes when there is a "sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen."

When invitees are aware of dangerous premises conditions—whether because the danger is obvious or because the landowner provided an adequate warning—the condition will, in most cases, no longer pose an unreasonable risk because the law presumes that invitees will take reasonable measures to protect themselves against known risks, which may include a decision not to accept the invitation to enter onto the landowner's premises. (Austin v. Kroger Tex., L.P., 2015 Tex. LEXIS 559, 58 Tex. Sup. J. 1154 (Tex. 2015))

The following restaurant or bar conditions were examined by Texas courts to determine if they constituted an "unreasonable risk of harm."

1. A Bar Fight

(Del Lago Ptnrs. v. Smith, 307 S.W.3d 762 (Tex. 2010))

A patron was seriously injured when a fight broke out among bar customers. The owners observed, but did nothing to reduce, an hour and a half of verbal and physical hostility in the bar. The owners had a duty to protect the patron because the owners had actual and direct knowledge that a violent brawl was imminent between drunk persons. The duty arose because the owners were aware of an unreasonable risk of harm at the bar that night.

However, a bar proprietor does not always or routinely have a duty to protect patrons from other patrons, and a duty to protect the clientele does not necessarily arises when a patron becomes inebriated, or when words are exchanged between patrons that lead to a fight.

2. Elevated Booth in a Restaurant

(Messer v. Tex. Roadhouse Rest., 2007 Tex. App. LEXIS 3610, 2007 WL 1373880 (Tex. App.Waco 2007))

Plaintiff was escorted by a waitress to an elevated booth, and took an inside seat beside the wall and away from the drop-off. The Plaintiff forgot about the drop-off when she exited the booth and fell to the floor, suffering fractures of the wrist and pelvis and other injuries to the shoulder and back. A motion for summary judgment for the restaurant was reversed. The court determined that the following evidence created a fact issue on whether there was an unreasonable risk of harm:

  1. Photographs of the elevated booth;
  2. An incident report prepared by the manager on duty at the time which stated that the lighting was "dim" on the occasion in question;
  3. Plaintiff's deposition testimony that the area was dimly lit and she was unaware that the booth area was elevated.

3. Sprinkler Valve Box on Lawn

(Villalon v. Kollman & Kollman, 2015 Tex. App. LEXIS 3040 (Tex. App. Amarillo 2015))

Plaintiff alleged she stepped into a hole in the lawn next to a restaurant. The hole was a sprinkler valve box. Although the box had a lid, the plaintiff did not know if the lid was off the box or placed on it but in an improper manner. The unreasonably dangerous condition in question consisted of either a covered sprinkler box appearing on the lawn or an uncovered or improperly covered sprinkler box appearing on the lawn.

Summary judgment for the restaurant was affirmed. There was no evidence suggesting either that others stepped into the box when the lid was affixed or that restaurant employees knew that others had stepped into the hole when the box was covered.

4. Hardwood Floor in Restaurant

 (Welcome v. Tex. Roadhouse, Inc., 2014 Tex. App. LEXIS 13800, 2014 WL 7335183 (Tex. App. Houston [1st Dist.] 2014))

The Plaintiff slipped on a restaurant's hardwood floors as she was walking to the ladies' room and broke both of her arms as she tried to break her fall. She testified that although she did not see what actually caused her fall, she assumed that it was the peanut and peanut shell debris on the restaurant's hardwood floor, coupled with the fact that the floor was slightly slanted. Two other witnesses testified to having visited the restaurant before this accident and noticed a slight slant in the floor where the Plaintiff fell. One witness testified that she had almost fallen there many times. None of the witnesses, however, saw the Plaintiff's feet when she fell or reported the slant in the floor to the restaurant.

The jury determined the restaurant was not negligent and the Plaintiff appealed. The Court concluded that the Plaintiff did not conclusively establish that there was a condition on the restaurant's premises that posed an unreasonable risk of harm to her and other invitees.

5. Slipping in Vicinity of Wet Floor Sign

 (Golden Corral Corp. v. Trigg, 443 S.W.3d 515 (Tex. App. Beaumont 2014))

As the Plaintiff stepped onto a restaurant's tile floor, her left foot slipped toward a yellow sign that contained language warning of a wet floor. Her left foot hit the sign before she hit the floor. Plaintiff testified that she did not see the warning before she fell. Nonetheless, a surveillance video admitted into evidence during the trial showed that before she fell, a yellow sign approximately three feet tall with a "Caution Wet Floor" warning on each of its four sides, had been placed on the tile floor in front of the food station where she fell.

The appellate court, reversing a judgment for the Plaintiff, noted that a premises owner's duty to keep its premises safe for invitees against known conditions that pose unreasonable risks of harm is discharged by warning the invitee of unreasonable risks of

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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