THREE SEPARATE PREMISES LIABILITY CASES IN THREE TEXAS COURTS OF APPEALS ALL AFFIRMED SUMMARY JUDGMENT IN FAVOR OF PREMISES OWNERS LAST WEEK

February 13, 2019

In Gibson v. Stonebriar Mall, LLC, No. 05-17-01242-CV, 2019 WL 494068, (Tex. App.—Dallas February 8, 2019, mem. op.), the day after a winter sub-freezing storm,  Gibson slipped on ice on a handicap ramp in Stonebriar Mall’s parking lot, fell and fractured her wrist. Gibson sued Stonebriar Mall asserting a premises liability claim. In response, Stonebriar Mall moved for summary judgment contending that Gibson’s fall resulted from the natural accumulation of ice, which the Texas Supreme Court, in Scott and White Mem. Hosp. v. Fair, 301 S.W.3d 411, 419 (Tex. 2010), concluded is not an unreasonably dangerous condition sufficient to support a premises liability claim.

Gibson argued, though, that the icy patch she slipped on was an unnatural ice accumulation. To that end, Gibson contended that the ice accumulated as a result of Stonebriar Mall, in its efforts to clear the sidewalk, piling snow and ice near the ramp which slowly melted and refroze and caused an increased runoff of water across the handicap ramp. The trial court granted summary judgment in favor of Stonebriar Mall. The court of appeals affirmed.  The court of appeals, relying on Fair, concluded that the naturally accumulated ice did not pose an unreasonable risk of harm, and shoveling and piling snow did not transform the icy patch into an unnatural one.

In Harris v. Serenity Foundation of Texas, No. 11-17-00068-CV, 2019 WL 470671, (Tex. App.—Eastland February 7, 2019, mem. op.), Harris was an inpatient at Serenity Foundation of Texas’ (“Serenity”) facility for seven days when she fell off a sidewalk located on Serenity’s premises and sustained injuries. The sidewalk had a six-inch drop-off to the ground below. Prior to the incident, Harris used the sidewalk three or four times per day.  At the time of the accident, there was another sidewalk that Harris could have used.  Additionally, Harris admitted that the condition of the sidewalk was open and obvious to her, that she was aware of the drop-off before she fell, and that no one needed to warn her about the drop-off.

Nonetheless, Harris sued Serenity alleging a premises liability claim. In response, Serenity moved for summary judgment contending that the drop-off was open and obvious and, therefore, Serenity did not owe a duty to protect or warn Harris.  Harris argued that even if Serenity did not owe her a duty, the “necessary use” exception to the no-duty rule applied. The “necessary use” exception applies when (1) the invitee, despite her awareness of the risk, must use an unreasonably dangerous premises condition, and (2) the premises owner should have anticipated that the invitee was unable to avoid the unreasonable risks associated with the condition. The trial court granted summary judgment in favor of Serenity. The court of appeals affirmed.  In affirming, the court of appeals concluded that the drop-off was open and obvious and that Harris’ admissions negated Serenity’s duty to Harris. The court further concluded that the “necessary use” exception was inapplicable as there was another sidewalk available.

In Simpson v. Orange County Building Materials, Inc., No. 09-18-00240-CV, 2019 WL 470090, (Tex. App.—Beaumont February 7, 2019, mem. op.), Simpson tripped and fell while walking over some wooden boards as he exited the loading area of Orange County Building Materials, Inc.’s (“OCBM”) store. Upon entering the loading area, Simpson thought the boards were unsafe but walked over them without incident.  When exiting, however, his toe hung up on a piece of board in the middle of the stack that was higher and un-level with the rest of the boards.  Nothing prevented Simpson from walking to either side to avoid the boards. Nonetheless, Simpson sued OCBM alleging a premises liability claim.

In response, OCBM moved for summary judgment contending that the boards were open and obvious and, therefore, OCBM did not owe a duty to protect or warn Simpson.  Simpson argued that even if OCBM did not owe him a duty, the “necessary use” exception to the no-duty rule applied. The “necessary use” exception applies when (1) the invitee, despite his awareness of the risk, must use an unreasonably dangerous premises condition, and (2) the premises owner should have anticipated that the invitee was unable to avoid the unreasonable risks associated with the condition.  The trial court granted summary judgment in favor of OCBM.

The court of appeals affirmed. In affirming, the court of appeals concluded that the necessary-use exception did not apply because the stacked boards were in the same location and condition when Simpson exited as when he entered, and nothing changed from the time he entered the loading area and when he exited the loading area.  The court further concluded that Simpson could have avoided the boards and there was no evidence that OCBM should have anticipated that Simpson was unable to avoid walking over the boards.