Premises Liability: What About Mud on Concrete After a Rain?

You know the scene. A strip center with concrete sidewalks between the parking lot and the buildings. Dirt nearby. Rain. Stormwater runoff moves dirt onto concrete sidewalk. Customer parks, and begins to walk toward the building. For unknown reasons, Customer decides to walk through the mud on the concrete. Customer slips and falls. Customer is injured. Customer goes to a lawyer or doctor, then to the other. Somebody decides it’s not the Customer’s fault, and so Lawyer sues everyone in sight. The trial court threw out the case. But the Court of Appeals bought into the dirt. And then in rode the Texas Supremes to save the day. And in the process, the Texas Supremes revisited the whole issue of premises liability cases involving “dirt in its natural state” and gave the business and its owners/employees a decisive win. This decision was very good news for commercial landlords and commercial tenants.

Ms. Rape slipped and fell in mud. Classic case of adding injury to insult. The opinion says nothing of her injuries, but the numbers must have been potentially large for a lawyer to invest in taking a personal injury case all the way to the Texas Supreme Court–without ever having gotten it before a jury, so even if she had won at the highest level, the case would still have had to go to trial.

Now for some background facts. Ms. Rape was visiting the M. O. Dental Lab. She parked her car and began walking toward the office. Due to recent rains, some dirt had washed over the concrete sidewalk, and it was still wet. This made it slippery. Nobody with the Dental Lab did anything about the mud, although they were aware it was there. Their attitude was that it would “eventually be washed or blown away by the weather.” There was no history of people falling due to the mud. Well, by now you probably guessed that Ms. Rape slipped and fell. And sued.

In addition to suing the M. O. Dental Lab, Ms. Rape also sued Gerald W. Carter, Michael Zuber and Lora Zuber. The case does not say who these people were, but there are two lessons here. If they were partners in the Lab, and the Lab was a “general partnership” (which it is unless there is a limited partnership certificate on file with the state), then all of them would have been 100% liable for 100% of the damages, whatever they may have been. In such an instance, had Ms. Rape won, she could have collected up to the entire judgment from any one of them. Of course, her lawyer would have gone after the easiest-to-get first. Is this you?

If the lab was a corporation, limited liability company or limited partnership, then the individuals would have been protected from this potential liability, and they should not have been sued. Of course, however, plaintiffs lawyers don’t always follow the law. In fact, they have been known to ignore it in an effort to benefit their client. These people could have been employees, sued because they knew about the condition and did nothing about it. In any event, the issue is this: do you want out of a lawsuit you should never have been in? What helps is to have your businesses and other assets structured in such a way that neutralizes this tactic. You have to be in a position to call their bluff. Now back to the story.

The Texas Supremes took all of about 2 pages to pour out Ms. Rape and her lawyer. Ms. Rape had to prove, among other things, that a condition on the premises posed an unreasonable risk of harm to her. Ordinary mud or dirt, in its natural state, can and often does form a condition posing a risk of harm, but as a matter of law, it is not an unreasonable harm. The same rule applies to the accumulation of mud on a man-made concrete surface, assuming no assistance or involvement of unnatural contact, like a shovel. Dirt in its natural state is not an unreasonable harm, and does not create liability for anyone.

And that’s the dirt on this case. Next time you see mud on a sidewalk, do yourself a favor and walk around it. Or do something to steady your progress. Don’t think you can successfully play the lawsuit lottery. And now you have some assurance that others can’t play it against you. But get your affairs in order just in case they try.

M. O. Dental Lab v. Rape, Case No. 03-0146, Texas Supreme Court, July 2, 2004

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