Wednesday, August 17, 2011

Actual knowledge requirement in premises defect litigation

Premises liability: Did Premises Owner/Operator have actual knowledge of defect, dangerous condition?

As a threshold requirement in a premises liability claim, the plaintiff must prove that the defendant had actual or constructive knowledge of a premises defect. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). A plaintiff may prove notice by establishing that the defendant actually knew that the condition was dangerous or that it is more likely than not that the condition existed long enough to give the owner-operator a reasonable opportunity to discover it. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). While there is no one test for determining actual knowledge that a condition presents an unreasonable risk of harm, a relevant consideration is whether the owner-operator has received prior reports of the danger presented by the condition or prior reports of injuries. Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008) (citing Brinson Ford, 228 S.W.3d at 163). Additionally, “[t]he fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge.” Rice Food Mkt., Inc. v. Hicks, 111 S.W.3d 610, 613 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (quoting Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992)) (internal quotation marks omitted). Constructive knowledge, which is defined as knowledge that a person, after reasonable inspection, ought to have or has reason to have, may be imputed when the premises owner-operator had a reasonable opportunity to discover and to remedy an allegedly dangerous condition. Reece, 81 S.W.3d at 814; Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 645 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

SOURCE: Houston Court of Appeals - 01-09-00492-CV - 8/11/11 (with dissent)

It is undisputed that [Premises-Liability-Plaintiff] was Sabine and Northwest’s invitee. Accordingly, to recover damages for premises liability, [Premises-Liability-Plaintiff] must establish that the premises owner-operator had actual or constructive knowledge of a dangerous condition on the premises that presented an unreasonable risk of harm and that the condition proximately caused his injuries. Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 162 (Tex. 2007). The standard of care required of the owner-operator toward its invitees is the ordinary care that a reasonably prudent person would exercise under the same or similar circumstances. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983). While a premises owner-operator is not an insurer of its invitees’ safety, it must protect invitees from conditions on the property that present an unreasonable risk of harm. Brinson Ford, 228 S.W.3d at 163 (citing CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000)). As such, Sabine and Northwest owed [Premises-Liability-Plaintiff] a duty to exercise reasonable care to protect him from known or reasonably discoverable dangerous conditions on the property. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).
[Premises-Liability-Plaintiff] attached four deposition transcripts to his response, including his own and Marshall’s. [Premises-Liability-Plaintiff] testified that on the day he slipped, the ramp was exposed to the elements and was wet from rain. He had not delivered mail to the building for several weeks prior to the day of his fall, but on that day, he noticed that the wheelchair ramp had been painted. [Premises-Liability-Plaintiff]’s uncontroverted deposition testimony was that after he fell, he spoke with Marshall, who told him that the person who had come to check the fire alarm earlier that morning had also slipped on the wheelchair ramp.

Sabine and Northwest argue that [Premises-Liability-Plaintiff] failed to present evidence of actual or constructive knowledge because he did not proffer evidence of a prior fall or a report involving injury. But whether an injury actually occurs prior to an incident is not conclusive on the question of whether the defendant knew or should have known that the condition created an unreasonable risk of harm. See Safeway Stores, Inc. v. Scamardo, 673 S.W.2d 371, 373 (Tex. App.—Houston [1st Dist.] 1984, no writ). When there is evidence of notice to a property owner or operator of a prior similar occurrence—here, evidence of Marshall’s knowledge of a near fall attributable to the same condition—such evidence is probative as to the question of notice. See Klorer, 717 S.W.2d at 760.

We conclude that the record contained more than a scintilla of evidence that Sabine and Northwest had notice of the alleged defect. See Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 70–71 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (holding that evidence of prior complaints raised fact question regarding defendant’s actual knowledge); see also Klorer v. Block, 717 S.W.2d 754, 760 (Tex. App.—San Antonio 1986, writ ref’d n.r.e.) (holding that evidence of similar incidents is probative as to notice element in premises liability case).

Likewise, “‘The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge.’” Hall, 177 S.W.3d at 645 (citing Keetch, 845 S.W.2d at 265). Marshall painted the ramp. She testified that she knew that a painted wheelchair ramp could be slippery because the employees at the hardware store where she purchased the paint instructed her to add sand to it in order to “make [the painted surface] a little more non-slip.” Marshall testified that she mixed the paint with sand and painted the concrete surface of the wheelchair ramp. She further testified that afterwards she walked on the ramp to make sure that it was not slippery. Marshall admitted she never tested the slipperiness of the ramp when it was wet even though it was exposed to the elements and she knew that it would be wet if it was raining.

Viewing the evidence in the light most favorable to [Premises-Liability-Plaintiff], we hold that it was sufficient to raise a question of material fact as to Sabine and Northwest’s knowledge of the condition. See Tex. R. Civ. P. 166a(i); Forbes, 124 S.W.3d at 172.

SOURCE: Houston Court of Appeals - 01-09-00492-CV - 8/11/11 (with dissent)

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