Wednesday, August 17, 2011

Premises liability: Reasonable Care Element


Did Owner-operator exercise reasonable care to eliminate known risk?

A defendant breaches its duty of care if it fails to exercise ordinary care to protect the plaintiff from danger by failing to adequately warn the plaintiff of the condition and by failing to make the condition reasonably safe. See Reece, 81 S.W.3d at 814; CMH Homes, 15 S.W.3d at 101. The duty to use ordinary care toward invitees includes the duty to inspect the premises, and the premises owner-operator is charged with constructive knowledge of any premises defect or other dangerous condition that a reasonably careful inspection would have revealed. See CMH Homes, 15 S.W.3d at 101; Corbin, 648 S.W.2d at 295. When an owner-operator has notice of a condition on the premises that poses an unreasonable risk of harm, he has a duty to take whatever action is reasonably prudent under the circumstances to reduce or eliminate the unreasonable risk. Corbin, 648 S.W.2d at 295.

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

In their motion for summary judgment, Sabine and Northwest argued that there was no evidence to establish that they breached a duty to [Premises-Liability-Plaintiff]. [Premises-Liability-Plaintiff] argued in his response that Sabine and Northwest did not exercise reasonable care to reduce or eliminate the risk of harm to people entering and exiting the building using the painted wheelchair ramp.

Marshall’s deposition testimony reflects that she knew that people entering and exiting the building could slip and fall on a painted concrete surface. Marshall testified that she had never painted a wheelchair ramp before. She made an effort to make the surface safe by talking with the employees at the hardware store about how she intended to use the paint and by mixing some sand in with it per their instructions, but she did not confirm with them that the work had been done properly. She did not test the ramp in wet and dry conditions, and she did not have the ramp inspected by ACI to confirm that it complied with ADA requirements. [Premises-Liability-Plaintiff]’s unobjected-to deposition testimony showed that at least two people slipped on the ramp when it was wet. Moreover, Marshall and Elkins testified that after [Premises-Liability-Plaintiff] slipped and fell they barricaded the wheelchair ramp for a period of approximately ten days and repainted the surface using paint with a higher sand-to-paint ratio in order to prevent others from slipping. But before [Premises-Liability-Plaintiff]’s fall, there was no sign, barricade, or other warning indicating that the painted ramp was slippery when wet. See TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764–65 (Tex. 2009).

Taking the proof favorable to [Premises-Liability-Plaintiff] as true, and indulging every reasonable inference and resolving any doubts in his favor, as we must, we conclude that [Premises-Liability-Plaintiff] raised a genuine issue of material fact as to whether Sabine and Northwest failed to exercise reasonable care to reduce or eliminate any unreasonable risk of harm created by the painted wheelchair ramp. 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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