AUSTIN, Texas (Legal Newsline) – A divot less than one inch deep isn’t big enough to give rise to a claim for premises liability.
The Texas Supreme Court on June 17 rejected the of Sherie McIntire, who sued United Supermarkets after tripping over a ¾-inch divot in a Market Street grocery store parking lot. The decision found an imperfection that small is not “unreasonably dangerous,” reversing a finding by a court of appeals.
On June 11, 2018, one of McIntire’s heels caught the divot, buckling her ankles and causing her to fall to the ground. She broke a foot and leg.
“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,” the decision says.
“Whether a specific condition is unreasonably dangerous is ordinarily a fact question. However, we have held that some particularly innocuous or commonplace hazards are not unreasonably dangerous as a matter of law.”
That was the finding in McIntire’s case. Using the factors established in previous premises liability lawsuits, it was shown “overwhelmingly” that the divot did not pose an unreasonable risk of harm, the court ruled.
“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,” the court ruled.