A shopper leapt from the elevated cab of her Ford pick-up truck in a grocery store parking lot. She caught her heel in a 3/4” divot. Her knees buckled and she fell, breaking her foot and leg. She sued the grocery store for premises liability. The trial court granted summary judgment for the grocery store, ruling that plaintiff had not adduced any evidence that the premises defect posed an unreasonable risk of harm. The Dallas Court of Appeals reversed, holding that plaintiff produced sufficient evidence to create a fact issue as to whether the defect was unreasonably dangerous. The grocery store sought SCOTX review.
In this garden-variety premises liability case, United Supermarkets;, LLC v. Sherie McIntire (No. 21-0208), the Texas Supreme Court found it necessary to rebuke the court of appeals (in a per curiam opinion issued without oral argument, no less) for failing to properly apply binding authority that some premises defects are not unreasonably dangerous as a matter of law, and this is one of them. While “ordinarily a fact issue,” the question of whether a defect is unreasonably dangerous should not reach the factfinder if the defect is “innocuous or commonplace” [citations omitted]. In this case, a relatively small divot in a parking lot does not rise create “a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event is likely to happen.” Some of the factors a court will consider in the analysis are “whether the relevant condition was clearly marked, its size, whether it had previously caused injuries or generated complaints, whether it substantially differed from conditions in the same class of objects, and whether it was naturally occurring” [citations omitted].
Here the divot in question, which the defendant knew about but did not believe it sufficiently hazardous to warrant marking, was both naturally occurring and “ubiquitous” in parking lots across the land. Holding businesses to a standard of maintaining perfectly flat and unmarred parking lot surfaces is simply unreasonable. Invitees regularly encounter imperfections caused by weather and ordinary wear-and-tear. The testimony of plaintiff’s expert, which the court of appeals relied on in reversing the trial court, “does not create a fact issue as to whether a condition is unreasonably dangerous when undisputed, material facts demonstrate that it is not” [citations omitted]. Here the expert’s opinion that the defect could injure someone is not evidence that it is unreasonably dangerous. In a nutshell, premises owners are “not ‘insurer[s] of [a] visitor’s safety,’ and they are not obligated to make the premises ‘foolproof.’”
Once again, the Court has felt compelled to issue a per curiam opinion to remind wayward courts of appeals of what the law is. While perhaps not a trend at this point, these opinions may indicate the Court’s interest in error correction as an increasingly important part of its jurisprudence. It is unfortunate that SCOTX has to weigh in on a case that trial court correctly terminated a long time ago.