Rasbury v. Wal-Mart, No. 4:2007cv02664 - Document 27 (S.D. Tex. 2008)
Court Description: MEMORANDUM AND OPINION entered DENYING Defts. 20 MOTION for Summary Judgment.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )
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was prone to becoming wet as opposed to evidence that they knew that the area was wet shortly before the plaintiff slipped and fell. The evidence showed Wal-Mart had actual knowledge that the ice machine was leaking on the morning when the accident occurred and that the area in front of the machine was wet. (Docket Entry No. 24, Ex. D at 14). Before she went to lunch, Ann Rasbury told a Wal-Mart cashier who was filling in as a door-greeter that a cone needed to be put over the wet area. (Docket Entry No. 24, Ex. D at 14). Wal-Mart also argues that the evidence shows that it only had notice that the carpet was wet, not that the tile surface adjacent to the carpet was wet. (Docket Entry No. 20 at 6). Cheri Rasbury does not allege that she fell because the ice machine had leaked so much water that it had created a puddle on the tile surface itself. She alleges that she slipped and fell when she stepped off the wet carpeted area and onto the tile surface, which was slippery as a result of the wet carpet. Wal-Mart’s actual notice of the wet carpet provided at least constructive knowledge that the tile area next to the carpet would be slippery. See City of San Antonio v. Rodriguez, 931 S.W.2d 535, 536–37 (Tex. 1996) (finding that the jury could 8 infer the defendant’s constructive knowledge of a wet area on the floor of a recreation center because the defendant had actual knowledge of both a leak in the roof and recent rainfall); City of Austin v. Leggett, No. 03-07-00345-CV, 2008 WL 2387328, at *11 (Tex. App. June 12, 2008) (“Although an antecedent condition or situation is not itself the unreasonably dangerous condition for purposes of premises liability, actual knowledge of an antecedent condition may, under some circumstances, help support the inference of actual or constructive knowledge of the dangerous condition.”). B. An Unreasonable Risk of Harm Wal-Mart also argues that the wet carpet did not present an unreasonable risk of harm, as a matter of law. Wal-Mart cites Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752 (Tex. 1970) for the proposition that “[c]ourts have routinely held that, although a customer tripped and fell in a retail store, the object upon which the customer tripped did not constitute an unreasonable risk of harm as a matter of law.” (Docket Entry No. 20 at 4). “[T]he Seideneck decision does not stand for the proposition that certain objects cannot be dangerous as a matter of law.” See McClure v. Rich, 95 S.W.3d 620, 627 (citing Reliable Consultants, 25 S.W.3d at 342). In general, because determinations of what conditions are reasonable are highly fact-intensive, they are well suited for a jury. See Reliable Consultants, 25 S.W.3d at 342; see also Nevills v. H.E. Butt Grocery Co., 38 S.W.3d 294, 296 (Tex. App.-Beaumont 2001, pet. denied) (reversing directed verdict for store and holding that whether a stock cart created an unreasonable risk of harm was for the jury to decide). 9 There is no definitive test for determining whether a specific condition presents an unreasonable risk of harm. See Wong v. Tenet Hosps. Ltd., 181 S.W.3d 532, 539 (Tex. App. 2005) (citing Seideneck, 451 S.W.2d at 754). Wal-Mart cites Seideneck for the proposition that a condition does not present an unreasonable risk of harm as a matter of law if a plaintiff presents no evidence of prior accidents caused by that condition. In Seideneck, the plaintiff was injured when she tripped on a loop or hole in a rug while visiting the defendant’s store. See Seideneck, 451 S.W.2d at 753. The court noted that, “[a]s might be expected with a matter involving the ‘reasonable man’ concept, there seems to be no definitive, objective test which may be applied to determine whether a condition presents an unreasonable risk of harm,” but that “evidence of other falls attributable to the same condition, or evidence of defectiveness of the rug, floor, or other condition causing the fall would be probative, although not conclusive, on the question.” Id. at 754 (citations omitted). In Seideneck, the court found that the carpet did not present an unreasonable risk of harm because: [t]here is no evidence in this record that during the time the rug had been on the floor anyone had previously tripped on it. There was neither an allegation nor is there evidence that the rug was defective in any manner. There is no evidence that this type of rug, with ‘regular pile’ and a decorative fringe of loose weave and tassels, was unusual; or that its particular construction and placement would have served as a suggestion or warning to the defendants that it presented the prohibited degree of danger, even if they had attempted a formal survey of the shop for dangerous conditions. Id. at 754–55 (citations omitted). Wal-Mart argues that, similar to the plaintiff in Seideneck, Rasbury has not presented evidence of prior accidents. As noted, the Seideneck court stated that such evidence is 10 probative but not conclusive as to whether a condition presents an unreasonable risk of harm. Id. at 754 (citations omitted). There is evidence in the record showing that the area in front of the ice machine was wet because of a defect – a leak – in the ice machine, that the wetness was an unusual condition, that Wal-Mart had been repeatedly warned about the hazard posed by the wet floor and as a result had placed warning signs near the ice machine on previous occasions. This evidence could support a jury finding that the wet carpet from the leaking machine could make the adjacent tile floor slippery, posing an unreasonable risk of harm. See Odom v. Wal-Mart Stores, Inc., No. 93-2176, 1994 WL 442488, at *3 (5th Cir. 1994) (finding wetness from substance on floor to constitute unreasonable risk even if wetness was left after an employee had mopped); Furr’s Inc. v. Logan, 893 S.W.2d 187, 192 (Tex. App. 1995) (leak from ice machine in store’s parking lot, which froze over in cold weather, created a dangerous condition); Albertson’s, Inc. v. Mungia, 602 S.W.2d 359, 363 (Tex. App. 1980) (finding that ice and water on floor after stocking of ice cooler was an unreasonable risk of harm). The record does not support a finding that, as a matter of law, the floor condition was not unreasonably dangerous, precluding summary judgment. 11 IV. Conclusion Wal-Mart’s motion for summary judgment is denied. SIGNED on July 10, 2008, at Houston, Texas. ______________________________________ Lee H. Rosenthal United States District Judge 12
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