The Meaning of Unreasonably Dangerous

By Cassandra Diaz and Trek Doyle, Doyle & Seelbach PLLC

Recent decisions from the Texas Supreme Court (and other courts) have clarified what evidence is needed to establish that a condition is “unreasonably dangerous” for purposes of a premises liability claim under Texas law. Pay & Save, Inc. v. Canales, 691 S.W.3d 499, 503 (Tex. 2024); see also United Supermarkets, LLC v. McIntire, 646 S.W.3d 800 (Tex. 2022) and Ford v. Alger, 228 S.W.3d 163 (Tex. 2007).[1] The clear trend is that avoidable commonplace conditions or conditions that do not involve prior incidents, complaints, or regulatory violations are not considered unreasonably dangerous as a matter of law. Importantly, these decisions make it clear that a plaintiff cannot simply hire an alleged safety expert to offer an opinion that a condition is unreasonably dangerous. The Court has repeatedly ignored conclusory expert opinions that a condition was unreasonably dangerous. Collectively, these decisions are very important for counsel defending premises liability cases. For adjusters or others who are charged with investigating and evaluating slip/trip-and-fall or other premises claims, the opinions should be considered in framing questions to pose to claimants and witnesses.

In Canales, the Supreme Court held again that for a condition to be considered “unreasonably” dangerous, there must be more than a mere possibility of harm. Canales, 691 S.W.3d at 503. Specifically, to prove a condition is unreasonably dangerous, the plaintiff must generally provide evidence of prior accidents, injuries, complaints, or reports and/or evidence that shows the condition violates the law, codes, regulations, and/or statutes. Id. Common hazards that are easily avoided are not “unreasonably” dangerous as a matter of law. Id. at 504.

In Canales, the plaintiff claimed that a wooden pallet left on the floor was an unreasonably dangerous condition. The plaintiff obtained a $6,000,000 judgment in the trial court. Id. at 501. The Texas Supreme Court disagreed and held that a wooden pallet “was a common condition, a type of hazard that we encounter – and avoid – every day by exercising a modicum of common sense, prudence, and caution.” Id. Therefore, the Court held that an empty wooden pallet was not an unreasonably dangerous condition as a matter of law. Id. at 501.

The Court reached this conclusion despite the plaintiff presenting expert testimony that the condition was unreasonably dangerous. Id. at 503. Canales’ two liability experts opined that the hazard presented by the wooden pallet was “known by the industry” and that an “industry standard” suggested using “pallet guards.” Id. at 503 n.2. The Court did not find Canales’ expert opinions persuasive and held that “expert testimony does not create a fact issue when undisputed, material facts show otherwise.” Id. Essentially, the plaintiff’s proffered expert’s testimony was ignored by the Court.

Similarly, in McIntire, handed down a couple of years before Canales, the Texas Supreme Court held that a small “divot” in a parking lot over which the plaintiff had allegedly tripped was “not unreasonably dangerous as a matter of law.” McIntire, 646 S.W.3d at 804. Per the Court, “[a] condition is unreasonably dangerous if `there is a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.’” Id. at 803. Considerations in making this determination include “whether the relevant condition was clearly marked, its size, whether it had previously caused injuries or generated complaints, whether it substantially differed from conditions in the same class of objects, and whether it was naturally occurring.” Id. With respect to the subject divot, “application of those factors overwhelmingly demonstrates that the divot did not pose an unreasonable risk of harm.” Id. The Court specifically stated that “nothing in the record indicates [the divot] yielded other complaints or injuries or was ‘unusual’ relative to other small pavement defects.’” Id.

As in Canales, the plaintiff engaged an expert to testify that the divot was unreasonably dangerous. Id. at 804-805. The Court reiterated that “expert testimony does not create a fact issue as to whether a condition is unreasonably dangerous when undisputed, material facts demonstrated that it is not.” Id. at 804 (citing Alger, 228 S.W.3d at 162-63). The Court emphasized that the divot “posed no previous safety concerns.” Id. The Court concluded that the expert’s opinions, which included references to various safety codes, did not even “raise a fact issue as to whether the divot was unreasonably dangerous.” Id. at 804-805.

Going back to 2007, in Ford v. Alger, the Texas Supreme Court addressed whether a pedestrian ramp at a car dealership was unreasonably dangerous. Alger, 228 S.W.3d at 161. The Court concluded:

We hold that, as a matter of law, the ramp at issue in this case did not pose an unreasonable risk of harm. The area of the ramp without handrails met applicable safety standards and was further outlined in yellow stripping that the dealership added, which is a common method used to indicate a change in elevation. The highest point of the downward sloping ramp was four inches, less than the height of an average step. No other customer visiting the property over a ten-year period had ever been injured by the ramp, nor has the dealership received complaints about the ramp’s safety.

Id. at 163 (emphasis added).

As with Canales and McIntire, the plaintiff had adduced expert testimony that the ramp was unreasonably dangerous. Id. at 162. The Court of Appeals held that the expert’s testimony was conclusory, and the Supreme Court agreed stating “we give no weight to [the expert’s] legal conclusion. Id.

Other courts have followed suit:

Johnson v. Walmart Stores Texas, LLC, Cause No. 09-22-00436-CV (Tex. App. – Beaumont, January 16, 2025) (affirming summary judgment where plaintiff failed to show that crockpot stored in such a way that it constituted an “unreasonably” dangerous condition).

Mouton v. Dolgencorp of Texas, Inc., Civil Action No. H-23-3015, (S.D. Tex. January 17, 2025) (Hittner, J.) (granting summary judgment where defendant proved that commonly placed doormat over which plaintiff tripped had not resulted in any prior “incidents, injuries, complaints, reports, or regulatory noncompliance”).

Meadows v. Costco Wholesale Corp., Civil Action 4:23-cv-01536 (S.D. Tex. Nov. 8, 2024) (granting summary judgment in favor of defendant and holding that partially exposed wooden pallet did not constitute an unreasonably dangerous condition despite proffered expert testimony that it was).

Cassandra Diaz is an associate at the law firm of Doyle & Seelbach, PLLC. Ms. Diaz joined the firm in 2023 and graduated from South Texas College of Law in 2020. Ms. Diaz has defended numerous nonsubscriber and other premises liability claims. Trek Doyle is a founding member of the firm who has been practicing law since 1994. Mr. Doyle has over twenty years of experience defending nonsubscriber employers across the State of Texas.