Strunk v. Belt Line Road Realty Co.
| Decision Date | 31 August 2005 |
| Docket Number | No. 08-04-00156-CV.,08-04-00156-CV. |
| Citation | 225 S.W.3d 91 |
| Parties | Francis J. STRUNK, Appellant, v. BELT LINE ROAD REALTY CO. and Arrow Industries, Inc., Appellees. |
| Court | Texas Court of Appeals |
Don S. McDaniel, Arlington, TX, for Appellant.
Jeffrey Kershaw, Chamblee and Ryan, Dallas, Deanne Ayers, Ayers & Ayers, Colleyville, TX, for Appellee.
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
Francis J. Strunk appeals from summary judgments granted in favor of Belt Line Realty Co. and Arrow Industries, Inc. We affirm in part and reverse and remand in part.
On May 27, 1999, Strunk was on a back haul run to pick up plastic bags for Reddy Ice at Arrow's warehouse facility located at Trend Drive in Farmer's Branch, Texas. When he arrived at the location, Strunk backed his truck onto the loading dock at the north end of the building. He exited the vehicle and, while walking alongside his trailer on the paved driveway area, stepped into a large puddle of water. The puddle contained algae and caused Strunk's left foot to slip. Strunk fell on the left side of his body and was knocked unconscious from the impact. He reported his injury and received medical treatment.
Strunk sued Belt Line and Arrow for premises liability, negligence per se, and gross negligence, alleging the companies either owned, occupied, or maintained the premises where he was injured. Strunk claimed that Belt Line owned the property and leased it to Arrow. With regard to premises liability, Strunk claimed he was an invitee who had entered the premises as a vendor. Belt Line and Arrow owed him a duty to use ordinary care and to safeguard and protect him from unreasonable dangerous conditions on the premises or to at least warn of their existence. Strunk alleged that Belt Line and Arrow's failure to clean up the algae puddles on driveways where vendors had to drive and walk was negligent, that he had no notice of the condition, that his injury was proximately caused by the dangerous condition existing on the premises and that Belt Line and Arrow had actual or constructive knowledge of the condition. Strunk also contended that the sidewalk and driveway were defective due to their maintenance, construction, and design since they were built and maintained in such a way that allowed accumulation of puddles in walkway areas and that Belt Line and Arrow should have repaired the conditions to allow for proper drainage. With regard to his claim of negligence per se, Strunk asserted that the walkway and driveway areas were designed, constructed, and maintained in contravention of building and safety codes. Finally, he alleged that Belt Line and Arrow were liable for gross negligence since they opened a building to the public that was in violation of building codes without properly inspecting the walkway and driveway for safety and code compliance.
Belt Line filed a motion for summary judgment, arguing that it owed no duty because it was not in control of the premises, the property was leased to Arrow, and it did not have actual or constructive knowledge of the purportedly dangerous condition. Belt Line also asserted there was no evidence that it was in control of the premises, that it failed to inspect the premises, that it failed to correct the dangerous condition, that it failed to warn invitees that a dangerous condition existed, or that it failed to remedy a defective design and condition of the drainage plan.
Arrow also filed a motion for summary judgment. It claimed there was no evidence that it occupied or controlled the premises, that the puddle constituted an unreasonably dangerous condition, that it knew or should have known about the condition on the premises, that it was negligent in inspecting or maintaining the premises or in warning invitees, that the premises were defective in maintenance, construction or design, or that the parking lot was not in compliance with the appropriate building and safety codes.
Strunk responded to Belt Line's motion by arguing that there were critically obvious issues of fact:
• Belt Line employees walked through slippery pools of stagnant water for years without realizing the danger when it was the only route to the entrance door.
• As the lessor of the property, Belt Line was responsible for inspecting the premises and failed to do so.
• While a lessor is relieved of its duty to inspect only if the lease agreement truly represents a net lease, the lease in question was not a net lease. Since the lease mentioned only the building and not the parking area, Belt Line retained control at least as to that part of the premises.
• Belt Line employees would have seen the stagnant puddles in the parking area and upon any inspection would have seen algae growing in the puddles.
• Leaving wet slimy algae where invitees had to walk was negligence per se.
• The slab was not maintained in accordance with ordinary engineering standards or code regulations, and Belt Line failed to erect, or tell Arrow to erect, warning signs.
Strunk attached as evidence an extract of his deposition testimony, an expert report, building codes, and pictures of the site.
Strunk also responded to Arrow's motion for summary judgment, arguing that he had established critically obvious issues of fact:
• Arrow had the responsibility of maintaining the property and failed to do so.
• Arrow owed him a duty of care as an invitee.
• Arrow had control of part of the premises and had actual or constructive knowledge of the defect for some time.
• The slab was not maintained in accordance with ordinary engineering standards or code regulations, and Arrow failed to erect warning signs.
Strunk again attached as evidence an extract of his deposition testimony, an expert report, building codes, and pictures of the site in addition to referring the court to the lease agreement.
By affidavit, the expert testified that he was a mechanical engineer and had received training as a safety engineer. He opined that the landlord and tenant were aware of or should have been aware of the large, obvious problem of the pooling water. Property offered for use by business patrons and vendors should be free from recognized hazards likely to cause injury. Falls can be prevented through (1) physical design characteristics of the walking surface and its support features, (2) general fixed user characteristics, (3) shoe sole and heel materials, (4) anticipated environmental conditions, and (5) inspection, cleaning, and maintenance methods. A major characteristic impacting safety was the coefficient of friction of the surface material, which measures slipperiness. Strunk's fall was similar to slipping on a banana peel since the coefficient of friction for the mucus-like substance (algae) was very low and similar in some degree to oil on top of ice.
In four inspections of the site in 2003, the expert found a pooling of water at the northern end of the parking facility next to the loading dock. On all visits, he found algae which was visible when he looked directly into the pools of water. The concrete was broken and slightly tilted and the pooling could have been a result of natural seepage from the underlying water table or from rains. The expert spoke to the current tenants of the building who told him the water pooling was a problem. The algae in the pools was tested by Professor James Glover at the University of Texas at Arlington Biology Department. Glover found the algae to be cyanobacteria, which is commonly called blue-green algae. The period of incubation for the algae was a minimum of four days and most likely one week. The algae was slimy and unstable and had a low coefficient of friction, meaning it was very slippery.
In examining the engineering of the parking area, the expert found the parking lot surface had been either misdesigned, misconstructed, or damaged to a point where the drainage slope had failed. According to building code, the slope of the parking lot should have had a minimum drainage slope of 2 percent. The slope in the puddle area was in violation of code. The pooling of the water and the improper drainage slope created a dangerous condition.
Moreover, Belt Line and Arrow either knew or should have known they had the responsibility to exercise reasonable care to maintain the premises free from reasonably foreseeable hazards. The hazard was open and obvious and would have been discovered in a safety inspection. Belt Line and Arrow should have used systematic planned safety inspections. They should have reasonably foreseen that leaving pools of water unattended for a week or more was a danger. Pools of water with a slick substance like algae on hard concrete was an obvious danger. Belt Line and Arrow failed to eliminate the fall hazard or to provide a proper drainage slope to prevent such a hazard and thus failed to comply with provisions in the building codes or to erect warning signs.
In Point of Error One, Strunk complains that the trial court erred in granting summary judgment in favor of Belt Line. In Point of Error Two, he asserts that the trial court erred in granting summary judgment in favor of Arrow.
Belt Line and Arrow moved for summary judgment under Rules 166a(c) and 166a(I) of the Texas Rules of Civil Procedure. In a traditional summary judgment proceeding, the standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.-El Paso 1996, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required...
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