United Supermarkets, LLC v. McIntire, 21-0208

CourtSupreme Court of Texas
Writing for the CourtPER CURIAM.
Citation646 S.W.3d 800
Parties UNITED SUPERMARKETS, LLC, Petitioner, v. Sherie MCINTIRE, Respondent
Docket Number21-0208
Decision Date17 June 2022

646 S.W.3d 800

UNITED SUPERMARKETS, LLC, Petitioner,
v.
Sherie MCINTIRE, Respondent

No. 21-0208

Supreme Court of Texas.

OPINION DELIVERED: June 17, 2022


Trek C. Doyle, Karl Seelbach, Renee Nguyen, Houston, for Amici Curiae Dallas Market Center, Kroger Texas L.P., Buena Vista Turf Farm, Texas Alliance of Nonsubscribers, Whataburger Restaurant, LLC, Brookshire Grocery Company, Randalls Food & Drugs, LP, Camden Property Trust, Albertson's LLC, QuickTrip Corporation.

Matthew J. Kita, Dallas, for Respondent.

Donna Peavler, for Petitioner.

PER CURIAM

In this premises-liability suit, a customer sued the premises owner after she sustained serious injuries from tripping over an approximately 3/4-inch divot in a grocery store parking lot. The trial court rendered summary judgment for the store owner, concluding that the defect that caused the accident "does not rise to the level of being an ‘unreasonably dangerous condition’ as a matter of law." The court of appeals reversed, holding that a fact issue exists as to whether the defect presented an unreasonable risk of harm. We agree with the trial court that the divot is not unreasonably dangerous as a matter of law. Accordingly, we reverse the court of appeals’ judgment and reinstate the judgment of the trial court.

United Supermarkets, LLC owns a Market Street grocery store in Frisco. On June 11, 2018, Sherie McIntire,1 a regular customer, drove to Market Street to do her weekly grocery shopping. When she got out of her Ford F-250 truck's elevated cabin, one of her heels caught an approximately 3/4-inch divot in the parking-lot pavement.2 McIntire's ankles buckled and she fell to the ground, breaking her foot and leg.3

646 S.W.3d 802

McIntire sued United, asserting premises-defect claims. United filed traditional and no-evidence motions for summary judgment, asserting that McIntire had not adduced evidence showing that United had notice of the defect or that it posed an unreasonable risk of harm, and that in any case, the defect was open and obvious. In support of her response, McIntire submitted deposition testimony, photographs of the divot, a demonstrative video of the accident, United's policies and procedures, and an expert report written by a professional engineer and safety consultant. The trial court granted United's motions.

The court of appeals reversed and remanded, holding that McIntire produced evidence sufficient to create a fact issue as to whether the defect was unreasonably dangerous. ––– S.W.3d ––––, 2021 WL 389095, at *1 (Tex. App.—Dallas Feb. 4, 2021). Specifically, the court of appeals reasoned that McIntire provided evidence that the size and shape of the divot indicated it posed an unreasonable risk of harm and that United failed to clearly mark the defect. Id. at *3. It also referenced McIntire's expert's report, which reflected that United may have run afoul of safety standards and stated that the defect could "cause a pedestrian's foot to unexpectedly rotate or flex," causing injury. Id.

United petitioned this Court for review. It argues that it is entitled to summary judgment because, among other things, the divot that caused McIntire's fall was not unreasonably dangerous as a matter of law. We agree.

United owed McIntire, an invitee, a duty to "make safe or warn against any concealed, unreasonably dangerous conditions of which [it was], or reasonably should [have been], aware" but which she was not. United Scaffolding, Inc. v. Levine , 537 S.W.3d 463, 474 (Tex. 2017).4 Whether a specific condition is unreasonably dangerous is ordinarily a fact question. Seideneck v. Cal Bayreuther Assocs. , 451 S.W.2d 752, 754 (Tex. 1970). However, we have held that some particularly innocuous or commonplace hazards are not unreasonably dangerous as a matter of law. See, e.g. , Scott & White Mem'l Hosp. v. Fair , 310 S.W.3d 411, 415 (Tex. 2010) (holding that a patch of ice causing a patron to slip and fall was not unreasonably dangerous as a matter of law); Brinson Ford, Inc. v. Alger , 228 S.W.3d 161, 163 (Tex. 2007) (holding that a pedestrian ramp did not pose an unreasonable risk of harm as a matter of law); Brookshire Grocery Co. v. Taylor , 222 S.W.3d 406, 408-09 (Tex. 2006) (holding that the wet floor in front of a self-serve soft-drink display was not unreasonably dangerous as a matter of law); M.O. Dental Lab v. Rape , 139 S.W.3d 671, 676 (Tex. 2004) (holding that naturally occurring mud was not unreasonably dangerous as a matter of law).

646 S.W.3d 803

A condition is unreasonably dangerous if "there is a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen." Seideneck , 451 S.W.2d at 754. In conducting this analysis, we have previously considered whether the relevant 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. See, e.g. , id. ; Alger , 228 S.W.3d at 163 ; Taylor , 222 S.W.3d at 408 ; M.O. Dental Lab , 139 S.W.3d at 675-76.

In this case, application of those factors overwhelmingly demonstrates that the divot did not pose an unreasonable risk of harm. It measured less than an inch deep, and nothing in the record indicates it yielded other complaints or injuries or was "unusual" relative to other small pavement defects. If anything, the defect was profoundly ordinary.

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1 practice notes
  • Gabriel Inv. Grp., Inc. v. Tex. Alcoholic Beverage Comm'n, 22-0062
    • United States
    • Supreme Court of Texas
    • June 17, 2022
    ...to any acquisition of GIG's stock by another public corporation, if it chooses to do so.We answer the first certified question yes.9 646 S.W.3d 800 B.As for the second certified question, TABC offers no argument that we can answer the second question "no" if the answer to the first question......
2 cases
  • Gabriel Inv. Grp., Inc. v. Tex. Alcoholic Beverage Comm'n, 22-0062
    • United States
    • Supreme Court of Texas
    • June 17, 2022
    ...to any acquisition of GIG's stock by another public corporation, if it chooses to do so.We answer the first certified question yes.9 646 S.W.3d 800 B.As for the second certified question, TABC offers no argument that we can answer the second question "no" if the answer to the first question......
  • Medrano v. Fiesta Mart, LLC, Civil Action 4:21-cv-16
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • December 12, 2022
    ...consistently held that “[t]iny surface defects in pavement are ubiquitous and naturally occurring.” United Supermarkets, LLC v. McIntire, 646 S.W.3d 800, 803 (Tex. 2022). Although this case refers to an accident resulting from a divot in the parking lot, the court also held that invitees sh......

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