Harvey Harwell v. Bell Investment Corporation
10-15-00358-CV
| Tex. App. | Mar 1, 2017Background
- On New Year’s Eve 2011, Harwell visited Treasure City Flea Market (owned by Bell) to exchange a nonworking freezer and purchase another; market grounds had concrete and asphalt seams with erosion in places.
- While walking with Ray Harrison, Harwell stepped into an asphalt pothole at a seam, fell, and sustained wrist, toe, and shoulder injuries.
- Harwell sued Bell for premises liability, alleging Bell had a duty to repair or warn of the dangerous condition and that the pothole proximately caused his injuries.
- At trial, Harwell and Harrison testified Harwell did not see the pothole and that the market was crowded; Bell disputed the crowding evidence.
- Photographs showed a large, deep hole that in one photo appeared obvious but in another (showing a crowd) was not obvious; Harwell acknowledged the hole looked obvious in the first photo but insisted he did not see it when he fell.
- After the evidence closed but before jury submission, the trial court granted Bell’s motion for directed verdict that the condition was open and obvious and that Bell owed no duty; Harwell appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether more than a scintilla of evidence exists that the pavement pothole was not open and obvious (thus creating a fact issue on Bell’s duty) | Harwell: he did not see the hole; crowding and testimony support that the danger was not open and obvious to him | Bell: the pothole was an obvious defect visible in photos; open-and-obvious condition negates duty | Reversed: court found more than a scintilla of evidence that the pothole may not have been open and obvious; directed verdict was erroneous and case remanded |
Key Cases Cited
- Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227 (Tex. 2004) (standard for reviewing directed verdicts; more than a scintilla test)
- Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004) (definition of more-than-a-scintilla evidence)
- Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex. 2015) (landowner duty to warn or make safe non-obvious dangerous conditions)
- GE v. Moritz, 257 S.W.3d 211 (Tex. 2008) (examples of open and obvious conditions negating duty)
- Graff v. Beard, 858 S.W.2d 918 (Tex. 1993) (discussed regarding duty analysis; court explained limited applicability to statutory duty questions)