Unreported / Non-Citable
Background
Shawn Orzo Fenimore alleged that he was delivering freight to Wal-Mart on August 18, 2023, when he tripped over a deep, uneven, and damaged portion of its parking lot. He claimed that he broke the fourth metatarsal of his left hand and strained his wrist while trying to break his fall.
Fenimore sued in Texas state court, alleging that Wal-Mart failed to inspect and maintain the parking lot, keep it reasonably safe, and provide adequate warnings. Wal-Mart removed the case based on diversity jurisdiction and moved for summary judgment. Fenimore did not respond, so the court deemed Wal-Mart’s factual allegations uncontroverted under the local rules.
The Court’s Holding
The court granted Wal-Mart summary judgment, holding that the parking-lot crack was not unreasonably dangerous as a matter of Texas law. Relying on the Texas Supreme Court’s decision in United Supermarkets, LLC v. McIntire, the court explained that minor pavement defects are ubiquitous and that reasonable invitees understand parking lots are not perfectly flat or even.
The court concluded that the alleged defect appeared to be no more than a minor, naturally occurring crack in concrete. Because Fenimore offered no evidence or argument distinguishing McIntire, no genuine dispute existed over whether the condition was unreasonably dangerous. The court did not reach Wal-Mart’s alternative argument that the defect was open and obvious, and it dismissed Fenimore’s claims with prejudice.
Key Takeaways
- A minor, naturally occurring parking-lot crack was not an unreasonably dangerous condition under Texas premises-liability law.
- Fenimore’s failure to oppose the summary-judgment motion allowed the court to treat Wal-Mart’s factual assertions as uncontroverted, but the court still evaluated whether Wal-Mart was entitled to judgment as a matter of law.
- Because the absence of an unreasonably dangerous condition resolved the case, the court did not address whether the crack was open and obvious.
Why It Matters
The decision applies Texas Supreme Court precedent treating ordinary, small pavement irregularities as conditions that generally do not support premises-liability claims. Property owners may obtain summary judgment where the evidence shows only a commonplace surface defect rather than a condition presenting a sufficiently foreseeable risk of harm.
The ruling also underscores the practical consequence of failing to respond to a properly supported summary-judgment motion: without contrary evidence, a plaintiff may be unable to establish the factual dispute needed for trial.