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Negligent activity; Premises defect
By Kevin McGillicuddy / J.T. Parker & Associates, L.L.C.

Claims Software

BROOKS v. PRH INVESTMENTS, INC., 2010 WL 297663 (Tex.App.—Texarkana 2010, no pet.) Negligent activity; Premises defect FACTS – Nancy Brooks slipped and fell while exiting the restroom of a Whataburger restaurant, injuring herself. The restroom floor had moisture on it because a restaurant employee had mopped it several minutes before Brooks fell. CASE HISTORY – Brooks sued PRH Investments, Inc. and Whataburger of East Texas (“PRH”), the owners and operators of this Whataburger location. At trial, Brooks testified that the floor was dry when she entered the restroom. While she was in a restroom stall, a lady (restaurant employee Jayne Summers) “came in and mopped.” Summers told Brooks to “be careful, the floor may be a little damp.” Brooks was in the restroom stall for three to five minutes after Summers left the restroom. She admitted that there was a wet floor warning sign in the restroom. On the other hand, Summers testified that before she began mopping the floor she put the “wet floor” sign out and that she had “just about finished” mopping when Brooks first entered the restroom. Summers also testified that she told Brooks “to be careful” and that “the floor was wet” because she had “just mopped in there.” The trial court granted PRH’s “no evidence” and “traditional” motions for summary judgment as to both the negligent activity and premises liability causes of action. HOLDING – Brooks appealed, arguing that she adequately alleged and supported her claims under negligent activity and premises liability theories. In order to maintain a cause of action on a “negligent activity” theory, the plaintiff must show that the injury was caused by or was a contemporaneous result of some negligent activity itself, rather than caused by a condition created by that negligent activity. In contrast, if the injury is caused by a condition created by the defendant’s activity, the plaintiff is limited to a “premises defect” theory of liability. The court of appeals cites the Texas Supreme Court’s decision in Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992). In that case, the plaintiff slipped and fell about thirty minutes after a Kroger employee had sprayed chemicals on plants in the floral section of the store. The Court in Keetch rejected the plaintiff’s contention that her injuries were the result of negligent activity (spraying plants) because that activity was not “ongoing” at the time of the injury. Therefore, the Court held (in essence) that the appropriate liability theory in Keetch’s case was that of premises defect as opposed to negligent activity. Applying the reasoning in Keetch and two other cases the court cites, the court of appeals holds that, whether the facts as recounted by Brooks or Summers are correct, there was no evidence that the restaurant’s negligent activity caused Brooks’s injuries or that her fall was contemporaneous with Summers’s mopping. All of the evidence indicated that Brooks slipped on a condition caused by the mopping activity, which had ended before the fall. Because Brooks’s fall was not contemporaneous with the alleged negligent activity, PRH was entitled to both a “no evidence” and a “traditional” summary judgment on Brooks’s negligent activity cause of action. The court of appeals then addresses Brooks’s premises defect cause of action. In order to succeed in such a premises liability suit, a plaintiff who is an invitee must show (1) that the defendant had actual or constructive knowledge of a condition on the premises, (2) that the condition posed an unreasonable risk of harm, (3) that the defendant failed to exercise reasonable care to eliminate or reduce the risk of that harm, and (4) that the defendant’s failure to use such care proximately caused the invitee’s injury. In this case, the material facts were that Brooks slipped and fell three to five minutes after the restroom floor had been mopped. Viewed in the light most favorable to Brooks, the evidence showed that Brooks saw the floor being mopped and had been verbally warned “to be careful” because the “floor may be a little damp.” Whether the warning was given before or after Brooks entered the restroom, the warning was adequate to discharge PRH’s duty to warn Brooks about the danger posed by the condition on the floor. Although Brooks’s pleadings and the summary judgment evidence presented some evidence to support a prima facia cause of action for premises liability, and therefore her claim could survive a “no evidence” motion for summary judgment, there were no material facts in dispute with regard to the adequacy of the warning that PRH gave to Brooks, and therefore the trial court properly granted PRH’s “traditional” motion for summary judgment. SIGNIFICANCE – Brooks’s claim might have been able to survive under a “negligent activity” theory if she had slipped and fallen while Summers was still mopping the floor, or she might have been able to survive under the “premises defect” theory if she had not been adequately warned of the wet floor, but her claim could not survive under either theory under the summary judgment facts. The difference between “negligent activity” and “premises defect” theories might be fairly subtle in some cases, so in investigating slip and fall and other premises liability types of claims, adjusters should carefully document facts that will show whether some possibly negligent activity was ongoing at the time of an injury as well as whether adequate warnings of any hazardous condition were given.

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