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TEXAS SUPREME COURT HOLDS THREE-QUARTER INCH DIVOT IN PARKING LOT NOT UNREASONABLY DANGEROUS

On June 17th, the Texas Supreme Court issued an Opinion in favor of a Grocery Store that will allow premises owners and operators to better defend against suits asserting that certain common conditions found in parking areas are unreasonably dangerous as a matter of law. In true Texas fashion, the Plaintiff in this case fell while exiting the elevated cabin of her Ford F-250 pickup truck in 3 inch heels.


As Plaintiff exited her vehicle, one of her heels caught in a “divot” in the parking lot pavement that measured approximately ¾ of inch deep.



Above photo of "divot" from the Petition for Review

filed in United Supermarkets, L.L.C. v. Sherie McIntire,

No. 21-02008, In the Supreme Court of Texas


Based upon the evidence offered by Plaintiff, the Court specifically noted that the “divot” appears to be more of a depression with gradually sloping edges. Photos of the condition contained in the appellate briefing reflect that the “divot” is the type of normal variation that one might find within any parking area that has existed for more than a few months.


In fact, the Supreme Court stated, “If anything, the defect was profoundly ordinary.”


Despite the testimony of Plaintiff’s expert opining that the defect constituted a dangerous condition, the defendant Grocer argued that it was entitled to summary judgment because the “divot” was not unreasonably dangerous as a matter of law. The Trial Court agreed and granted summary judgment in favor of the defendant Grocer.


In reaching the opposite conclusion, the Court of Appeals focused on the Grocer’s failure to warn of the “divot” and relied on the Plaintiff’s expert testimony to create a fact issue. Nevertheless, the Supreme Court noted in overturning the Court of Appeals’ decision that “expert testimony does not create a fact issue as to whether a condition is unreasonably dangerous when undisputed, material facts demonstrate that it is not.”


While the Supreme Court was careful to hold that it was not making any broad pronouncements on whether pavement defects constitute unreasonably dangerous conditions, it ruled that the particular defect complained of by Plaintiff in this case was not unreasonably dangerous a matter of law.


Premises owners and operators facing parking lot defect cases now have another bit of good case law from the Texas Supreme Court to defend a case depending on the nature of the complained of defect.

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