In Lee v. K&N Management, Inc., the plaintiff sued a store and barbecue after tripping on ground cover near the store entrance. Before going to the store to pick up dessert, she’d been eating dinner with her mother and brother, and she drank a single margarita. At the store, her mother pulled the car up to the sidewalk instead of parking, and the woman got out of the car, wearing flip flops.
After leaving the car and stepping forward, the plaintiff slipped on ground cover, which she later claimed had grown out of the flowerbed and onto the sidewalk. A store employee who was also a friend of the family later spotted her fall from 25 feet away. After the fall, he saw that plants had grown 10 inches out of the flowerbed and onto the sidewalk. The plaintiff suffered a fractured ankle, which necessitated two surgeries.
The plaintiff sued under theories of negligence and premises liability. The store moved for summary judgment. It argued that the overgrowth wasn’t dangerous as a matter of law under premises liability law, that the store neither knew nor should have known of the defect, and that there wasn’t evidence of either of these elements. The plaintiff argued that it was reasonable to infer that the plant grew slowly in growing over the edge of the flowerbed, which raised a factual issue about whether the store should have known about the defect. She didn’t address the argument that a plant overgrowth was not dangerous as a matter of law.
The trial court granted summary judgment for the store. The plaintiff appealed. She argued that there was a factual issue about whether the store had constructive knowledge of a dangerous condition on the property.
To recover damages in a premises liability lawsuit, a plaintiff needs to establish that the owner had actual or constructive knowledge of a dangerous condition on the property, the dangerous condition presented an unreasonable risk of harm, the owner didn’t use reasonable care to reduce the risk, and the owner’s failure to use that care was the proximate cause of the plaintiff’s injuries.
The appellate court explained that in a premises liability case, the duty the defendant owes to the plaintiff depends on the plaintiff’s status on the property at the time of the accident. In this case, the plaintiff’s status was a business invitee. A property owner owes a duty to use ordinary care to reduce the unreasonable risk of harm created by a dangerous condition about which the property owner knew or should have known.
The plaintiff must also show that the dangerous condition posed an unreasonable risk of harm. This occurs when there’s a sufficient probability of an accident happening that a reasonably careful person would have foreseen. Generally, a naturally occurring substance like mud or dirt doesn’t present an unreasonable risk of harm.
The appellate court found that the overgrown ground cover may have presented a risk of harm, but the risk was not an unreasonable one. The court explained that usually whether something presents an unreasonable risk of harm is a factual question.
However, the only witness who saw the overgrowth testified it protruded about 10 inches over the flowerbed edge in a well-lit spot, and he could see it from 25 feet away. The woman had taken a few steps before turning to say something to her mother and then falling. She didn’t remember tripping on the plant. The mother didn’t remember plants. The store employee testified he didn’t think it was a dangerous condition that required reporting to a supervisor.
The appellate court concluded that while it was possible in some circumstances that a plant could present an unreasonable risk of harm, in this case, there wasn’t more than a “scintilla” of evidence of risk. The appellate court affirmed the lower court’s granting of the defendant’s summary judgment motion.
If you are injured after falling on someone else’s property because of a dangerous condition, the experienced San Antonio attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your premises liability case. Call our office for more information at 1-800-862-1260.