Last week, the Court of Appeals of Texas, Houston concluded that the premises owner’s double-fountain water feature was open and obvious and affirmed dismissal of the customer-plaintiff’s premises-liability claim.  In Culotta v. Double Tree Hotels, LLC, No. 01-18-00267-CV, 2019 WL 2588103, (Tex. App.—Houston June 25, 2019, mem. op.), the restaurant in the Double Tree Hotel (“Double Tree”) had two fountains with tiers that allowed water to cascade down the various levels until it reached the matching pools below. The fountains stood more than a couple feet above the height of nearby dining tables and chairs. Between the fountains was a walkway that led to the back dining area of the restaurant. As Culotta was being led through the walkway to the dining area, the restaurant employee turned back to get a menu and then returned, both times passing Culotta and both times Culotta shuffled backward to allow the employee to pass. When beginning to again follow the employee, Culotta turned to his left and “clipped the ledge of the [left] fountain” with his left ankle and fell into the fountain.  As a result, Culotta was injured. He subsequently brought a premises-liability suit against Double Tree, arguing that the fountain feature was unreasonably dangerous in that the edging had a low profile and there were no barriers to prevent a person who had tripped from falling into the fountains.

On appeal, the court noted that some Texas Supreme Court cases analyzing premises-liability claims have focused on the invitee's subjective knowledge that a defect exists (i.e. hazards already appreciated by the invitee before the injury-causing incident), while other cases have focused on the objective “open and obvious” nature of the property defect. In this case, although Culotta navigated the walkway during the back-and-forth undertaking of the employee, the court focused more on the second category and concluded that the fountains were “objectively observable to a reasonable person exercising ordinary care in traversing the restaurant.” Thus, the court held that the fountains were open and obvious conditions and affirmed summary judgment in favor of Double Tree. 

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