Could You Be Sued Over an Icy Parking Lot?

Since many dealers are dealing with ice, I feel now is a good time to discuss what legal duties a landowner has to make their property safe to employees and customers.

 Are Employees Different than Customers?

The duties of a landowner are the same for an employee and customer. On December 9, 2014, the Texas Supreme Court heard arguments in the case Austin v. Kroger. Randy Austin fell while mopping a restroom floor at the Kroger store where he worked in Mesquite, Texas. An oily liquid had leaked through the store's ventilation ducts after another Kroger employee power-washed the store's condenser units, creating spills in both the men's and women's restrooms. Consistent with Austin's duties as a self-described “floor clean-up person,” Austin's supervisor directed him to clean the spills. Austin slipped in the liquid and fell, fracturing his femur and dislocating his hip. As a result, he spent nine months in the hospital and underwent six surgeries, leaving his left leg two inches shorter than his right.

The Court concluded that employers owe employees the same premises-liability duty that other landowners owe to their invitees. An invitee is “one who enters the property of another ‘with the owner's knowledge and for the mutual benefit of both.” The Court further ruled that “in most cases, the landowner's premises-liability duty is to either make safe or warn invitees of concealed dangers of which the landowner is or should be aware, but the invitee is not; and (3) in most cases, a landowner owes no duty to protect an invitee against a dangerous condition that is open and obvious or known to the invitee. . .” In this case, the Court found that the slippery floor was an open and obvious dangerous condition and Kroger was not liable.

Is the Condition Open or Obvious?

Determining if a condition is open or obvious is fact-specific. In Nethery v. Turco, a court determined ice known on the premises but not at that exact spot was open and obvious. A real estate agent named Nethery testified that she could see ice but that the ice did not cover the entire driveway. However, she did not know where it stopped. She appreciated the ice's presence enough to be more cautious and attempted to step around it, but she stepped on the ice and fell, injuring her wrist. She filed suit for negligence, and the Defendant (Turco) moved for summary judgment based on the absence of a legal duty to warn or protect. Nethery also alleged that the Turcos negligently left their sprinkler system on, which caused the ice to accumulate. The court held, “the Texas Supreme Court in Austin stated that when, as in this case, the condition is open and obvious or otherwise known to the invitee, “the law presumes that invitees will take measures to protect themselves against known risks.

Under controlling precedent, the Turcos' duty to the appellant was negated by Nethery's admission that the ice was open and obvious or otherwise known to her.” In Hughes v. Kroger, the court found a concrete patch to be open and obvious based on six color photographs of the concrete patch. The pictures showed a different shade and composition of concrete than the rest of the parking lot. The court also factored in that the patch was in the middle of a lined parking space and not hidden or obscured by landscaping, a curb, or other object. Despite Hughes claiming she did not see the patch, the court found this evidence to be enough to dismiss the case. The court also spelled out the elements a plaintiff must show to prevail when a hazard is not open and obvious (1) a condition of the premises created an unreasonable risk of harm, (2) the owner knew or reasonably should have known of the condition, (3) the Defendant failed to exercise reasonable care to protect the Plaintiff, and (4) the failure was a proximate cause of the injury.

Important Lessons

Based on these three cases, I think the following is clear:
(1) If you have a hazard that is open and obvious and an accident occurs, you should document the hazard with pictures as Kroger did with the concrete patch;

(2) If an accident occurs, you should document any measures you took to avoid the accident, provide notice to customers of the hazard, and any other steps you took to mitigate the risk of the hazard;

(3) You should warn customers of potential hazards, and although a verbal warning is enough, you should have the warning in writing when possible such as a notice at every entrance, the use of a safety cone, and/or a caution sign;

(4) You should pay special attention to hazards that are in less open areas that may not be easily noticed, such as between cars; and

(5) The presence of sand or kitty litter may or may not put a guest on notice of possible hazards, but it does show some care was taken to protect the invitee.

In summary, just because you do not have a duty to protect someone, it does not mean you will not end up with expensive legal bills as Kroger had when they fought a case all the way to the Texas Supreme Court—that said, always do everything you can within reason to protect invitees and employees.


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