Is it really an unreasonably
dangerous condition?
The Texas Supreme Court issued two opinions today that might have some application to current or future cases you are handling. Below is a brief synopsis of each case:

In United Supermarkets, LLC. v. McIntire, a customer sued the premises owner when she sustained injuries from tripping over an approximately ¾-inch divot in a grocery store parking lot. The Court held that the divot did not pose an unreasonable risk of harm as a matter of law. In making that determination, the Court analyzed several factors including whether the condition was clearly marked, its size, whether it had previously caused injuries or generated complaints, whether it substantially differed from conditions in the same class of objects, and whether it was naturally occurring. Interestingly, the Court noted that it could not conclude that a person or ordinary prudence should have anticipated the accident and injuries, noting that “tiny surface defects in pavement” are ubiquitous and naturally occurring. The Court noted that reasonable invitees know that parking lots are not perfectly flat and even and they should use caution when exiting their vehicles. So, don’t forget to use the same factors in analyzing whether a particular condition constitutes an unreasonable risk of harm in your premises defect cases.

In In re YRC Inc., the Court dealt with whether a designation of a RTP was timely. In this case, a defendant sought to designate the plaintiff’s employer as a responsible third party 62 days before the suit’s third trial setting and more than five years after the injury. The trial court denied the motion on the grounds that it was untimely. The Court held that the motion was timely filed more than sixty days before the then-pending trial date and there was no applicable limitations period for the plaintiff to join the employer because of the comp bar. As to the first issue, the Court noted that nothing in Section 33.004(a) limits the phrase “the trial date” to an initial trial setting rather than the trial date at the time the motion to designate is filed. As to the second issue, because the plaintiff could not sue his employer, the plaintiff could not rely on the provision that requires designation before the applicable statute of limitations has expired.

Craig Reese leads the Firm's appellate and coverage practice group. He has over 25 years of practice experience including appeals at the federal and state level, insurance coverage/defense, and commercial litigation. Craig has represented clients in a wide variety of litigation including insurance coverage, general insurance defense, bad faith litigation, and commercial matters. His appellate experience includes cases before every level of the state courts of appeals and appeals to the Fifth Circuit Court of Appeals. In addition, he is a former briefing attorney to the Honorable H.M. Lattimore for the Second Court of Appeals in Fort Worth.

Fletcher, Farley, Shipman & Salinas LLP is a dedicated business defense firm with offices in Dallas and Austin. The firm's attorneys leverage their extensive experience and skills as trial and appellate attorneys to achieve resolution both inside and outside of the courthouse in matters including the defense of tort litigation, business and commercial litigation, construction, insurance, employment and dispute resolution. The firm’s unique Rapid Response Team™ provides a legal forensic service that can be deployed nationwide around the clock, within moments, to assist clients in responding to catastrophic losses. 
Information presented in this article is accurate as of date of publication. The information provided is not legal advice and use of this information does not create an attorney-client relationship. You should always consult an attorney for more current information, changes in the law or any other information specific to your situation.
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