Inquiry into elements of premises liability claim in Texas: Forseeability of injury

Premises liability: Did the condition pose unreasonable risk of harm?

A condition poses an unreasonable risk of harm when there is a “sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.” Hall, 177 S.W.3d at 646 (quoting Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002)) (internal quotation marks omitted). “Foreseeability in this context ‘does not require that the exact sequence of events that produced an injury be foreseeable.’ Instead, only the general damage must be foreseeable.” Id. (quoting Cnty. of Cameron, 80 S.W.3d at 556) (internal citations omitted). Evidence of a similar injury or complaint caused by the condition is probative on the question of whether the condition posed an unreasonable risk of harm. Id.; see also Klorer, 717 S.W.2d at 761. Whether a particular condition poses an unreasonable risk of harm is generally fact specific, and there is no definitive test for determining whether a specific condition presents an unreasonable risk of harm. Hall, 177 S.W.3d at 656 (citing Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 342 (Tex. App.—Austin 2000, pet. denied)).

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

Sabine and Northwest also contend that summary judgment was properly granted because [Premises-Liability-Plaintiff] presented no evidence that the painted wheelchair ramp was unreasonably dangerous. [Premises-Liability-Plaintiff] argues that Sabine and Northwest had a duty to make the wheelchair ramp reasonably safe for people entering and exiting the building. He contends that Sabine and Northwest created an unreasonable risk of harm to persons entering and exiting the building because they painted the wheelchair ramp to make it more visible and the ramp was slippery when wet.

[caselaw]

The deposition testimony attached to [Premises-Liability-Plaintiff]’s response demonstrates that it was reasonably foreseeable that an improperly painted wheelchair ramp could be slippery under any weather conditions and that a person entering and exiting the building could be injured if they slipped. Specifically, the hardware store employees informed Marshall that she should mix sand or some other anti-slip additive with the paint before painting the wheelchair ramp because improperly painted concrete surfaces can be slippery. The evidence also showed that this particular wheelchair ramp was used by people entering and exiting the building and that it was exposed to the elements. [Premises-Liability-Plaintiff] testified that it had been drizzling on the morning of his fall, and his deposition testimony shows that Marshall was aware of at least one complaint that the wheelchair ramp was slippery before he fell.

“[E]vidence of other falls or near falls attributable to the same conditions is recognized as probative evidence in determining whether such condition presents an unreasonable risk of harm. . . .” Klorer, 717 S.W.2d at 761. When, as in this case, there is evidence that the similar slips (both [Premises-Liability-Plaintiff] and the man checking the building’s fire alarm system complained that they slipped on the painted wheelchair ramp) arose out of the same inanimate cause or condition (both slipped on the painted wheelchair ramp when it was wet from rain), such evidence raises a fact question as to whether the condition presents an unreasonable risk of harm. See id.

Sabine and Northwest argue that “the fact that [Premises-Liability-Plaintiff] fell on the ramp does not necessarily lead to the conclusion that the ramp was unreasonably dangerous.” While it is true that this evidence is not conclusive, it is probative of the fact that the painted wheelchair ramp was unreasonably dangerous. Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970); Hall, 177 S.W.3d at 646. Accordingly, we conclude that [Premises-Liability-Plaintiff]’s evidence raised a question of material fact as to whether the painted wheelchair ramp created an unreasonable risk of harm.

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