Breaking NewsLaw.com and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.

 
X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Noelia Bendigo was walking through the parking garage headed toward Terminal C at Bush Intercontinental Airport at approximately 8:30 p.m. As she walked down a stairway in the garage, she stepped on a disposable cup, slipped and fell down the stairs, injuring her ankle. Bendigo sued Burns Management Group, who she said owned, operated and maintained the garage. Bendigo claimed Burns was negligent in maintaining the stairwell. Though presenting no evidence of Burns’ actual knowledge of the presence of the cup in the stairwell, Bendigo claimed that the company had constructive knowledge. She reasoned that Burns knew that the already-heavily trafficked garage underwent an “exodus of customers” between 5:30 and 6:30 p.m.; Bendigo fell at 8:30 p.m. 10.5 hours after the first scheduled daily cleaning, and 4.5 hours before the next one; and there was additional garbage in the stairwell when Bendigo fell. Bendigo reasons that these facts taken together create a fact issue that cup could have been in on the stairs for 10-12 hours, which was a sufficient amount of time to allow a party “to be deemed to have constructive knowledge.” Burns filed traditional and no-evidence summary judgment motions, which the trial court granted without specifying the grounds. HOLDING:Affirmed. The court confirms that Bendigo was an invitee on Burns’ property. The court also confirms that, in order to satisfy the notice element in a premises liability claim involving an invitee, Bendigo is required to prove one of three things: 1. that Burns placed the cup in the stairwell; 2. that Burns actually knew that the cup was on the step; or 3. that it is more likely than not that the dangerous condition the cup created existed long enough to give Burns a reasonable opportunity to discover it. The court faults Bendigo’s logic regarding Burns’ constructive knowledge. Noting that there was no evidence that accumulated trash in the stairwell was commonplace, or that there were previous reports of slips or falls in the stairwell, the court finds that there mere evidence that Burns had not cleaned the stairs for approximately 10 hours before the occurrence is not evidence of the time the cup came to wind up in the stairwell. “Bendigo’s speculation � that the cup ‘could have been there’ for ten to twelve hours � is not more probable than a number of other scenarios, including that the cup was dropped minutes before Bendigo fell.” The court rejects Bendigo’s reliance on and interpretation of Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983), finding that the case does not stand for the proposition that liability can attach even without proof of constructive knowledge. Finally, the court rejects Bendigo’s assertion that Burns owed her a general duty not to be negligence. “A separate”general negligence duty’ . . . does not exist,” the court rules. OPINION:Bland, J.; Nuchia, Keyes and Bland, JJ.

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

Benefits of a Digital Membership:

  • Free access to 1 article* 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 © 2021 ALM Media Properties, LLC. All Rights Reserved.