Last week, a Federal District Court in El Paso denied Wal-Mart’s motion for summary judgement, concluding that the plaintiff established that a genuine dispute existed as to whether Wal-Mart had knowledge of the allegedly dangerous condition on its premises. In Paez v Wal-Mart Stores, Texas, LLC, No. EP-20-CV-00321-DCG, 2022 WL 847311 (W.D. Tex. [El Paso Division] March 22, 2022), Paez was leaving a Wal-Mart store in Socorro, Texas, when she tripped over exposed rebar on the parking lot's pedestrian crosswalk and fell to the ground. Paez subsequently filed a premises-liability claim against Wal-Mart.  

To prevail on a premises defect claim, a plaintiff must establish:(1) the property owner had actual or constructive knowledge of the condition causing injury; (2) the condition posed an unreasonable risk of harm; (3) the property owner failed to take reasonable care to reduce or eliminate the risk; and (4) the property owner's failure to use reasonable care to reduce or eliminate the risk was the proximate cause of injuries to the invitee.

Wal-Mart filed a motion for summary judgment, contending that Paez could not establish the first element, i.e., that there was no evidence that Wal-Mart had actual or constructive knowledge of the exposed rebar.

The Court denied Wal-Mart’s motion.  The Court concluded that Paez established that a genuine dispute existed as to whether Wal-Mart had actual or constructive knowledge of the exposed rebar. “First, the rebar was permanent, unlike a substance or item that is the typical culprit of a slip-and-fall, which, Paez contends, suggests that Wal-Mart itself (or someone under its control) created the condition. Second, the rebar was in the crosswalk, suggesting, as Paez would put it, that a Wal-Mart employee would have seen it at some point. Third, a Wal-Mart employee walked in close proximity to the rebar at least three times in the hour prior to Paez's fall. Fourth, Wal-Mart was able to locate and photograph the rebar without Paez present. Fifth, and finally, Paez retained an expert who expresses the opinion that, among other things, the rebar was likely installed by Wal-Mart or at the direction of Wal-Mart; the rebar was painted white, like the stipes in the crosswalk, which the expert suggests is evidence that Wal-Mart knew or should have known about the exposed rebar; the white paint was weathered and worn, indicating that the rebar had been exposed for a while; and the presence of the rebar in the crosswalk would be readily visible and obvious to a properly trained individual performing a proper regular periodic inspection.”

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