Law School Case Brief
Towers of Town Lake Condo. Ass'n v. Rouhani - 296 S.W.3d 290 (Tex. App. 2009)
The elements of a premises liability case by an invitee are: (i) the owner/operator of the premises had actual or constructive knowledge of some condition on the premises; (ii) the condition posed an unreasonable risk of harm; (iii) the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (iv) the owner/operator's failure to use such care proximately caused the injury.
The owner and operator of premises that include a swimming pool has a duty to ensure that the area around the pool has a surface that is not unreasonably slippery when wet, a condition that is not merely foreseeable but to be expected. A poolside surface that is slippery when wet is a dangerous condition that creates an unreasonable risk that a visitor will fall.
Plaintiff Venus Rouhani attended a birthday party at the Towers of Town Lake Condominiums. While moving her chair near the indoor swimming pool, she slipped, and fell onto the concrete deck of the swimming pool. Plaintiff Rouhani suffered a comminuted fracture on her right humerus. The pool deck was made from stamped concrete that had, over the preceding seven years, been painted with six coats of enamel paint. Plaintiff Rouhani sued defendant Towers of Town Lake Condominium Association, which owned and managed the condominium common areas, including the indoor pool area, asserting a premises liability theory of liability. The jury found that the association was negligent and that its negligence proximately caused Rouhani's injuries. The trial court denied the association's post-trial motions and rendered judgment in Rouhani's favor. The association challenged the judgment on the ground of the legal sufficiency of the evidence supporting (1) the jury's finding that the association had knowledge of the condition that caused Rouhani's fall, (2) the jury's finding that the association's negligence proximately caused Rouhani's fall, and (3) the amount of damages that Rouhani suffered for loss of future earning capacity. The association also complained that the trial court erred by not submitting its requested jury instruction on unavoidable accident.
Was the association, as the owner and operator of the premises, liable for the injury sustained by Rouhani when it failed to ensure that the area around the pool had a surface that was not unreasonably slippery when wet?
The court affirmed the judgment of the trial court. The court held that the association was liable for its negligence that resulted in Rouhani's injury, who was an invitee to the premises. The owner and operator of premises that included a swimming pool had a duty to ensure that the area around the pool had a surface that was not unreasonably slippery when wet, a condition that was to be expected. The evidence established that the association was responsible for having the pool deck painted six times in seven years with the enamel paint that did not contain the recommended anti-slip additive, such that the association was aware of the unreasonably dangerous condition. In addition, the court found the expert testimony of Dr. Glass enough to prove the amount of damages claimed by Rouhani. Finally, the court resolved that there were sufficient body of evidence that supported the finding of the jury of the existence of negligence on the part of the association, and the trial court’s refusal to include the instruction on unavoidable instruction was not harmful.
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