Last week, the Austin Court of Appeals concluded that Wal-Mart had no duty to warn its customer about a bottle of wine that ultimately fell on the customer’s foot during checkout, and affirmed summary judgment in favor of Wal-Mart.  In Sarah Kennedy v. Wal-Mart Stores Texas, LLC., No. 03-19-00587-CV, 2020 WL 1943357 (Tex. App.—Austin, April 23, 2020, mem. op.), when Sarah Kennedy was checking out her groceries at Wal-Mart, the checker put Kennedy’s bottle of wine on its side on the carousel in a bag, unhooked from the carousel. When Kennedy spun the carousel counterclockwise toward herself, the bottle rolled off the carousel and fell on her right foot. Kennedy subsequently filed suit against Wal-Mart asserting a premises-liability claim. 

During her deposition, Kennedy testified that (1) she saw the checker place the wine bottle in the plastic bag; (2) she saw the checker unhook the plastic bag from the metal stays; (3) she saw and was fully aware that the checker next put the bagged bottle on its side on the carousel; (4) she reached out and spun the carousel towards her, knowing full well where the bottle was on the carousel; and (5) if she had spun the carousel clockwise, rather than counterclockwise, the bottle would not have fallen on her foot.

Wal-Mart filed a motion for summary judgment asserting that it had no duty to warn Kennedy of a condition of which she had actual knowledge.  The trial court granted the motion. 

On appeal, Kennedy argued that the bagged bottle of wine resting on the carousel in front of her, before she spun it, constituted an unreasonably dangerous condition that Wal-Mart was obligated to warn her of because it was a concealed or hidden danger.  Alternatively, Kennedy argued that the “necessary use” exception –which applies when (1) it is necessary that the invitee use the premises and (2) the landowner should have anticipated that the invitee would be unable to take measures to avoid the risk– applied because she was standing in the only place available to retrieve her groceries from the carousel.

The Court of Appeals concluded that the danger Kennedy claimed to have existed was not hidden or concealed and, therefore, Wal-Mart had no duty to warn. The court reasoned that Kennedy was aware of the location of the bagged bottle of wine, lying horizontally and untethered on the carousel.

The Court of Appeals further concluded that because there was more than one way for Kennedy to retrieve the bottle of wine, which would have allowed her to avoid it falling on her foot, the “necessary use” exception did not apply. The court reasoned that the bottle would not have fallen on Kennedy’s foot if she had chosen not to spin the carousel or if she had spun the carousel clockwise, rather than counterclockwise. Further, she could have simply asked the checker to hand her the bottle.   

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