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:Francis J. Strunk was on a back-haul run to pick up plastic bags for Reddy Ice at Arrow Industries Inc.’s warehouse facility. Strunk backed his truck onto the loading dock, 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. He 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 Realty Co. and Arrow for premises liability, negligence per se and gross negligence, alleging the companies owned, occupied or maintained the premises where he was injured. 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. 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 the motions and 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. The trial court granted the motions of Arrow and Belt Line and Strunk appealed. HOLDING:Affirmed in part and reversed and remanded in part. As to the summary judgment in favor of Belt Line, the court noted that, generally, a landlord has no duty to tenants or their invitees for dangerous conditions on the leased premises. While Strunk relied upon the lease agreement, the court finds that he did not produce any evidence showing that Belt Line, as the owner of the property, had retained any control over the premises when it leased them to Arrow or that Belt Line had made a negligent repair. Consequently, the court holds that Strunk failed in his burden to produce a scintilla of evidence that Belt Line had control over the premises where the alleged injury occurred and that the summary judgment for Belt Line was proper. As to the summary judgment for Arrow, the court first addresses Arrow’s argument that it objected to all of Strunk’s summary judgment evidence. Arrow suggests that because summary judgment was granted in its favor, the court must infer that the trial court also ruled favorably on the objections. But, for there to be an implicit ruling, the court holds that there must be something in the record to indicate the trial court ruled on objections other than the mere granting of the summary judgment. The court finds no indication, implicitly or otherwise, that Arrow’s objections were ruled upon. The court finds that, under the lease, Arrow was responsible for maintenance of the described property including the roof, foundation and exterior walls of the building. Therefore, the court holds that Strunk produced sufficient probative evidence to create a genuine issue of material fact as to whether Arrow was in control of the premises where his injury occurred. Taken as true, the court found that Strunk’s evidence established that there was algae in the puddle where he fell, the algae was cyanobacteria and the algae needed a minimum of four days to grow. The court concluded that reasonable and fair-minded jurors could disagree on whether the foregoing evidence established Arrow’s constructive knowledge so that Strunk’s evidence properly raised a fact issue. However, the court also holds that Strunk failed to present a scintilla of evidence to show that Arrow had a subjective awareness of the risk involved in the puddles yet nevertheless proceeded in conscious indifference of the rights and safety or welfare of others. Consequently, the court reverses and remands as to Strunk’s claims for premises liability and negligence per se and affirms the summary judgment in favor of Arrow on the gross negligence cause of action. OPINION:McClure, J.; Barajas, C.J., McClure, and Chew, 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.