X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Torts No. 01-02-00019-CV, 5/8/2003. Click here for the full text of this decision FACTS: In this premise liability suit, a jury found the appellant, Rice Food Market Inc., negligent and awarded appellee, Rhonda Hicks, $75,287 plus post-judgment interest and costs. HOLDING: Reversed and rendered. When the injured party is an invitee, as Hicks was, the elements of a premise liability cause of action are: 1. Actual or constructive knowledge of some condition on the premises by the owner/operator; 2. the condition posed an unreasonable risk of harm; 3. the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and 4. the owner/operator’s failure to use such care proximately caused the plaintiff’s injuries. Rice contends that the evidence was legally and factually insufficient to prove the first three elements of the cause of action. Rice contends that the evidence is legally and factually insufficient to show that it had actual or constructive notice that the sign on the kiosk posed an unreasonable risk of harm. “The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge.” Even with an inference of knowledge, the jury must still find that the owner or occupier knew or should have known of the condition. Such an inference as a matter of law is improper unless knowledge is uncontroverted. Thus, the court considers whether there is any evidence that Rice had actual or constructive knowledge of an unreasonable risk of harm. Rice denied actual knowledge that the sign posed an unreasonable risk of harm. Therefore, actual knowledge was not established as a matter of law. The court examines the record to determine whether the evidence is legally sufficient to establish Rice’s actual or constructive knowledge. There is no evidence that the sign had ever fallen down before this incident, and a Rice representative testified that he knew of no similar incident. Moreover, there is no evidence in the record that the sign was a dangerous condition from the moment it was installed. Therefore, there is no evidence that Rice had actual knowledge that the sign on the kiosk posed an unreasonable risk of harm. Likewise, Hicks presented no evidence of Rice’s constructive knowledge of the allegedly dangerous condition. Constructive knowledge may be established by showing that the condition had existed long enough for the owner or occupier to have discovered it upon reasonable inspection. Hicks failed to present any evidence on how long the sign had been attached to the canvas. The evidence is legally insufficient to support a finding of knowledge. While the court is sympathetic to anyone who is innocently injured, it emphasizes that premise owners neither are insurers nor are they strictly liable. Hicks argues that the use of a velcro strip to attach the sign to the kiosk and the presence of unused screw mounts on the sign are evidence of constructive notice. The court disagrees. “Evidence that an owner or occupier knew of a safer, feasible alternative design, without more, is not evidence that the owner knew or should have known that a condition on its premises created an unreasonable risk of harm.” The court reverses the judgment of the trial court and renders judgment that Hicks take nothing. OPINION: Hedges, J.; before Hedges, Jennings and Alcala, JJ. DISSENTING OPINION: Alcala, J. “Can a business that creates a dangerous condition escape responsibility by claiming that it did not know about the condition? Because I believe that the answer to this question should be no, I respectfully dissent. I disagree with the majority opinion, which states that, ‘there is no evidence in the record that the sign was a dangerous condition from the moment it was installed,’ and, on that basis, further states that, there is ‘no evidence that Rice had actual knowledge that the sign on the kiosk posed an unreasonable risk of harm.’ “To prevail in a premises liability case, an invitee like Hicks must prove that the premises occupier or owner had actual or constructive knowledge of a dangerous condition on the premises. In my opinion, Hicks established with more than a scintilla of evidence that Rice had actual knowledge of the dangerous condition.”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.