Holes in a case?

Originally published by David Coale.

Sherie McIntyre was injured when she fell in a pothole in a grocery store parking lot. The Fifth Court (in Justice Craig Smith‘s first appearance in this blog) reversed a defense summary judgment in McIntyre v. United Supermarkets, finding a fact issue on the question of the store owner’s constructive knowledge of the pothole: “Trevino testified that he inspected the parking lot approximately twenty to twenty-four times during the first six months of the store’s opening. He noticed the spot where McIntyre fell but ‘didn’t feel that it needed to be repaired . . . It never stood out as a hazard.’ Thus, Trevino’s repeated inspections put him in close proximity to observe the pothole, which he in fact did notice. Trevino acknowledged that the parking lot was restriped before United opened the new store and had not been restriped since then. A picture of the pothole shows the white stripe going over part of the pothole indicating it had been present for at least six months. Thus, McIntyre produced more than a scintilla of evidence to raise a genuine issue of material fact as to whether United had constructive notice of the pothole.” No. 05-19-01252-CV (Feb. 4, 2021) (mem. op.). The Court also found a fact issue on the question of unreasonable danger.

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