Liability for Slips and Falls is Alive and Kicking
September 23, 2002
By ANGEL REYES and LORIN SUBAR
Texas Lawyer Contributors
After the
Texas
Supreme Court's decision in
Wal-Mart
Stores v. Gonzalez in 1998, many of the
plaintiffs' attorneys in
Texas thought
that claims for damages resulting from premises
defects were dead. To paraphrase Mark
Twain, news of the death of premises liability
claims in Texas has been (moderately)
exaggerated.
The Gonzalez court was faced
with the question of what constituted evidence that
Wal-Mart had a reasonable opportunity 1. to discover
macaroni salad on the floor; and 2. to remedy the situation,
according to the opinion. To prove constructive
knowledge, Flora Gonzalez, who slipped and fell on the
pasta and sustained painful injuries to her back, shoulders
and neck, introduced evidence that the macaroni was
dirty and had tire tracks going through it, according
to the opinion. The implication from the tire
tracks and dirt was that sufficient time had passed
for Wal-Mart to have constructive notice of the dangerous
hazard, the opinion noted.
The court thought otherwise. It
held that to prove constructive notice, the evidence
had to establish that it was more likely than not that
the dangerous condition existed long enough to give
the proprietor a reasonable opportunity to discover
it. The court went so far as to say dirt in macaroni
salad lying in a heavily traveled aisle is no evidence
of the length of time the macaroni had been on the floor.
By so ruling, the court severely raised the bar on what
constitutes constructive knowledge of a defect.
The immediate impact of Gonzalez
was a flood of summary judgment motions on every closely
related (i.e. slip and fall) premises liability case,
with the property owners swearing that they were blissfully
unaware of the dangers that existed in the aisles of
their stores. Further, if there was a single grape,
a banana peel or other danger on the floor, it certainly
hadn't been there long enough for the plaintiff to prove
constructive notice.
In June of this year, fuel was
added to the fire when the Supreme Court reversed
Wal-Mart Stores v. Reece, an opinion out of
the 10th
Court of Appeals in Waco.
In Reece, the offending hazard was liquid
on the floor. In this instance, a Wal-Mart
employee walked directly past the puddle that
subsequently felled Lizzie Reece, according to
the Supreme Court opinion. After the lower
court opined that this surely fell into the realm
of 'constructive knowledge,' the Supreme Court
found that the knowledge that 1. a drink service
area would be prone to spills; and 2. an employee
actually present prior to and at the time of the
accident did not constitute sufficient 'constructive
knowledge.'
A HIGHER HURDLE
The question then is this: Is
premises liability, at least as it
relates to people slipping and falling at a place of
business, dead?
The answer is no. But in much the
same way as the Medical Liability and Insurance Improvement
Act and its interpretation by the appellate courts in
the state has affected medical negligence suits in this
state, the current court's rulings in the premises liability
area will make for better, potentially more 'winnable'
premises cases.
Gone forever are the days of, 'My client
slipped and fell. How much will you pay him?'
Now, careful review and good detective work, driven
by the court's high hurdle, are the keys to preparing
and prosecuting quality premises suits.
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