After the Texas Supreme Court’s decision in Wal-Mart Stores v. Gonzalez in 1998, many of the plaintiffs attorneys in Texas thought that claims for damages resulting from premises defects were dead. To paraphrase Mark Twain, news of the death of premises liability claims in Texas has been (moderately) exaggerated. The Gonzalez court was faced with the question of what constituted evidence that Wal-Mart had a reasonable opportunity 1. to discover macaroni salad on the floor; and 2. to remedy the situation, according to the opinion. To prove constructive knowledge, Flora Gonzalez, who slipped and fell on the pasta and sustained painful injuries to her back, shoulders and neck, introduced evidence that the macaroni was dirty and had tire tracks going through it, according to the opinion. The implication from the tire tracks and dirt was that sufficient time had passed for Wal-Mart to have constructive notice of the dangerous hazard, the opinion noted.
The court thought otherwise. It held that to prove constructive notice, the evidence had to establish that it was more likely than not that the dangerous condition existed long enough to give the proprietor a reasonable opportunity to discover it. The court went so far as to say dirt in macaroni salad lying in a heavily traveled aisle is no evidence of the length of time the macaroni had been on the floor. By so ruling, the court severely raised the bar on what constitutes constructive knowledge of a defect.
The immediate impact of Gonzalez was a flood of summary judgment motions on every closely related (i.e. slip and fall) premises liability case, with the property owners swearing that they were blissfully unaware of the dangers that existed in the aisles of their stores. Further, if there was a single grape, a banana peel or other danger on the floor, it certainly hadn’t been there long enough for the plaintiff to prove constructive notice.
In June of this year, fuel was added to the fire when the Supreme Court reversed Wal-Mart Stores v. Reece, an opinion out of the 10th Court of Appeals in Waco. In Reece, the offending hazard was liquid on the floor. In this instance, a Wal-Mart employee walked directly past the puddle that subsequently felled Lizzie Reece, according to the Supreme Court opinion. After the lower court opined that this surely fell into the realm of “constructive knowledge,” the Supreme Court found that the knowledge that 1. a drink service area would be prone to spills; and 2. an employee actually present prior to and at the time of the accident did not constitute sufficient “constructive knowledge.”
A HIGHER HURDLE
The question then is this: Is premises liability, at least as it relates to people slipping and falling at a place of business, dead? The answer is no. But in much the same way as the Medical Liability and Insurance Improvement Act and its interpretation by the appellate courts in the state has affected medical negligence suits in this state, the current court’s rulings in the premises liability area will make for better, potentially more “winnable” premises cases.
Gone forever are the days of, “My client slipped and fell, how much will you pay him?” Now, careful review and good detective work, driven by the court’s high hurdle, are the keys to preparing and prosecuting quality premises suits.
Probably the single most important document in a premises case is made on the day the incident occurs. Almost all large businesses, and most small ones, create an accident or incident report. The failure of a store to be able to produce such a document may lead to several important conclusions. If a claimant’s accident or injuries are speculative, the lack of a report should lead to further investigation as to the reliability of the claimant’s story or the existence of the incident occurring at all. If the accident or injury is not speculative, the lack of an incident report should raise red flags as to the actions, or lack thereof, of the premises owner. For example, if a claimant needs medical assistance at the scene of the incident (such as being treated by Emergency Medical Services), the subsequent lack of a report by the store raises spoliation issues and attendant presumptions such as actual notice.
Upon obtaining an incident report, each portion of the report should be examined for further clues to get your client over the Texas constructive time-notice rule. Typically, the report includes customer witnesses as well as employee witnesses; more often the latter than the former. Rarely is an employee an eyewitness to the actual occurrence. Generally, they are either 1. the one in charge of maintaining the floor; 2. the one who arrived first on the scene; or 3. the one who cleaned the site.
By the time you see the report, however, that employee may no longer be working for the premises owner. The statements made, or not made, by an employee while still employed with the defendant business may be different when the employee has moved on. Find him and talk to him.
Fellow shoppers, however, provide the best source of proof as a link between the “constructive notice” as stated by the Supreme Court and the time-notice requirement expected by the court based on its interpretation of what equals constructive notice. While generally people shop alone, and witness/relatives may be unreliable, strangers make excellent witnesses. Witnesses may include a person who earlier had pointed out the defect or the “ear” witness who heard an employee state that he should have addressed the problem earlier.
Premises liability cases, and specifically slip-and-fall cases, are not dead. However, before you embark on this type of case, no matter how big the damages may be, you better have some evidence, beyond circumstantial, that will get you over the constructive time-notice requirement. As with other claims, the quality of work necessary to support a judgment has changed, but recovery is not a legal impossibility.
Angel Reyes is a partner in the Dallas office of Heygood, Orr & Reyes, and
Lorin Subar is an associate with the firm.
