Wednesday, August 17, 2011

Causality in premises liability litigation: Did failure to exercise reasonable care proximately cause the plaintiff’s injuries?


Did failure to exercise reasonable care proximately cause the injuries suffered by plaintiff

To prevail in an action for premises liability, an invitee must establish that the defendant’s lack of care proximately caused his injuries. CMH Homes, 15 S.W.3d at 99; Hall, 177 S.W.3d at 647. Proximate cause consists of cause-in-fact and foreseeability. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). A defendant’s negligence is the cause-in-fact of the plaintiff’s injuries if the negligent act or omission was a substantial factor in bringing about the injury, without which the harm would not have occurred. Hall, 177 S.W.3d at 648. Foreseeability “means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others.” Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549–50 (Tex. 1985). It requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Hall, 177 S.W.3d at 648.

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

Sabine and Northwest argue that [Premises-Liability-Plaintiff] did not present evidence of proximate cause. [Premises-Liability-Plaintiff] argues that he was injured when he slipped and fell on the wet wheelchair ramp and that it was foreseeable that such an injury would occur because an improperly painted wheelchair ramp can become slippery when wet.

[Premises-Liability-Plaintiff] testified during his deposition that he slipped when he was walking up the wheelchair ramp to deliver mail to the building. He further testified that it was raining and that the wheelchair ramp was wet. After he fell he noticed that the back of his clothing was wet. There was also evidence that Marshall never confirmed with the home improvement store employees or other professionals that she had been done the work properly. She did not test the ramp in wet and dry conditions, although the ramp was exposed to the elements and she knew that it would be wet if it was raining, and she did not have the ramp inspected by ACI to confirm that it complied with ADA requirements.

In their motion for summary judgment, Sabine and Northwest complained that [Premises-Liability-Plaintiff] had not designated a liability expert to establish foreseeability. While expert testimony under the circumstances might be helpful, it is not required to establish causation “[w]hen a layperson’s common understanding and general experience enable her to determine, with reasonable probability, the causal relationship between the event and the condition. . . .” Towers of Town Lake Condo. Ass’n, Inc. v. Rouhani, 296 S.W.3d 290, 298–99 (Tex. App.—Austin 2009, pet. denied). Under the circumstances, [Premises-Liability-Plaintiff]’s and Marshall’s deposition testimony constitutes some evidence of causation. See id. at 299. Because [Premises-Liability-Plaintiff]’s testimony that he fell on the painted wheelchair ramp when it was wet from rain, together with Marshall’s testimony, raises a question of material fact as to whether Marshall’s negligence caused [Premises-Liability-Plaintiff]’s fall, we hold that [Premises-Liability-Plaintiff] met his summary judgment burden as to the element of causation. See Tex. R. Civ. P. 166a(i); Forbes, 124 S.W.3d at 172.

Having concluded that [Premises-Liability-Plaintiff] raised a question of material fact as to each of the elements of premises liability challenged in Sabine and Northwest’s no-evidence motion for summary judgment, we hold that the trial court erred in granting summary judgment in favor of Sabine and Northwest, and we sustain [Premises-Liability-Plaintiff]’s sole issue.

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

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