Recent Case Law

Slip-and-fall cases are premises liability torts. They typically involve a person who sustains an injury by falling on someone else's property. Obviously, businesses that open their doors to the public are at an increased risk of becoming a target for one of these lawsuits, just by sheer odds. More people generally means more chances for accidents to occur.

Most injured people will base their slip-and-fall lawsuits on the claim that the property owner was negligent. To win, that person must show:

• There was an unreasonably dangerous condition.
• The insured had actual or constructive knowledge of the condition.
• The insured failed to use reasonable care to reduce or eliminate the condition.
• The insured's failure to use reasonable care proximately caused the claimed injuries.

Within the context of this article, I will only explore the first two elements and the impact recent Texas case law developments have had on the issues they raise.

Unreasonably Dangerous Conditions

The most important development in recent Texas slip-and-fall case law is that stores are not required to be “foolproof” to be considered safe. In this case, a woman claimed a store's soft-drink dispenser posed a dangerous condition after she slipped on ice that had fallen from the machine. The court denied her claim, stating that the ice — not the drink dispenser — was the dangerous condition, and because the store had taken precautions by using warning signs and mats, the accident was her fault, not the store's. Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 2006 (rehearing denied, Tex. June 15, 2007).

This holding was strengthened by the holding in another case in which a person brought suit against a car dealership after being injured on a ramp. She claimed she was injured because the ramp lacked a protective railing. In determining that the ramp was not an unreasonably dangerous condition, the court noted that ramps are inherently dangerous; this particular one complied with all safety standards; and no other customers in a 10-year period were injured on it. Brinson Ford, Inc. v. Alger, 228 S.W.3d 161 (Tex. 2007). Remember: stores are not required to be “foolproof.”

Actual or Constructive Knowledge?

Actual knowledge is easily understood. For instance, a customer finds a bunch of smashed bananas on the middle of the floor. She brings the store manager over to the scene, showing him the mess. He now has actual knowledge of the condition.

Constructive knowledge is a bit trickier. This is where the insured has “reason to know” of the condition. But what gives him “reason to know” about it? Most courts hold that when a customer calls for clean up on aisle five, your insured now has reason to know there could be a problem. The same applies to the situation where a store manager can hear the lightening and see the rain pouring down. He has reason to know that the rain dripping from his soggy customers calls for “wet floor” signs.

Courts, however, focus on time as a key issue when weighing constructive knowledge, and for obvious reasons. If your insured is running the cash register when little Johnny spills his juice in the dairy section, then he cannot instantly know about it and respond. In the case of the woman who slipped on a piece of ice that tumbled from the drink dispenser, the Texas Supreme Court held that the store could not have constructive knowledge of the condition because ice — by its very nature — does not give a person time to respond with clean-up measures before it melts.

Precautionary Measures

Although there is nothing insureds can do to completely eliminate the possibility of being sued, there are things they can do to reduce the risk of accidents and bolster their defense positions if they are sued:

• If there is an accident, then take pictures of the scene. These pictures could be worth a lot more than just 1,000 words.
• Have procedures in place for regularly inspecting and cleaning the premises. This will demonstrate to the jury that the insured is concerned about safety.
• When an accident takes place, make sure that a thorough accident report form is filled out. Consistency with these reports is persuasive to a jury.
• When customer traffic is highest or the weather creates a risk for dangerous floor conditions, it is a good idea to have one employee dedicated to making sure the premises are clean and safe.

Every slip-and-fall case involves a different set of facts, and the outcome of each case can be very different. Remember the scenarios introduced at the beginning? Why did those cases produce such widely varying results?

• The customer-in-the-rainstorm case. The storeowner had reason to know there was a heavy downpour and rainwater was being tracked into the store. He failed to warn the customers with “wet floor” signs and did not lay out protective mats. That is exactly why the case settled for the amount the plaintiff demanded.
• The applesauce case is a great example of an insured doing exactly what he was supposed to do. Accidents do happen. The point here is that the employee was prepared for it and then took appropriate action. That is why the case settled for only $1,500, much less than the $365,000 the plaintiff initially demanded.
• The fall-in-the-celery-section case illustrates that a defense attorney can cover all of the bases and go to trial with a seemingly great case, but that some things are beyond control. Here, that “something” was the witness for the insured — a store employee — who could not verify the facts in her statement. That uncertainty did not go over with the jury, who awarded a total of $19,500. That amount was still far less than the $175,000 originally demanded.

It is important for every property owner to understand the elements of a slip-and-fall case. Owners need to evaluate how operations may put them at risk and affect their ability to successfully defend against these cases. By considering the suggestions made here, a property owner should be able to reduce the number of accidents that occur. When one does occur, the insured will be in a better position to defend potential claims.