Understanding Premises Liability: The Commonplace Condition Defense in Texas
Updated: Sep 7
Premises liability cases often hinge on whether the plaintiff can prove that a condition was “unreasonably dangerous.” Two recent Texas Supreme Court opinions—United Supermarkets, LLC v. McIntire, 646 S.W.3d 800 (Tex. 2022), and Pay & Save, Inc. v. Canales, 691 S.W.3d 499 (Tex. 2024)—have clarified this inquiry in a manner that strongly favors landowners and retailers facing claims related to everyday surface irregularities.
Together, these cases reinforce Texas's common condition doctrine. This principle asserts that ordinary, ubiquitous conditions encountered daily through common sense are not considered unreasonably dangerous as a matter of law.
However, the Court has also indicated limits. In McIntire, the Court cautioned against making “broad pronouncements” about pavement defects in general. Meanwhile, Canales frames its holding through the specific condition at issue. So, how far does this defense extend—especially concerning potholes, sidewalks, and roadway conditions?
Let’s delve deeper.
The Legal Framework: Understanding "Unreasonably Dangerous"
To succeed in a premises liability claim, a plaintiff must demonstrate that the property owner knew of a condition that was unreasonably dangerous, failed to exercise reasonable care, and that this failure caused the injury. The critical battleground often lies in the second element.
In McIntire, the plaintiff tripped over a ¾-inch divot in a grocery store parking lot. The Supreme Court reversed the court of appeals, ruling that the defect was not unreasonably dangerous as a matter of law. The Court emphasized several key points:
The divot was small and “profoundly ordinary.”
There had been no prior complaints or injuries related to it.
Surface irregularities in pavement are common.
Landowners are not insurers of invitee safety.
In Canales, the Court reaffirmed this stance. A customer caught his foot in the open side of a wooden pallet used to display watermelons. Despite a multi-million-dollar jury verdict, the Court rendered a take-nothing judgment, asserting that the pallet was not unreasonably dangerous as a matter of law.
Crucially, Canales articulates the doctrine clearly:
Common or innocuous hazards are not unreasonably dangerous as a matter of law. The mere fact that a condition has caused an injury does not make it unreasonably dangerous.
The Court warned against hindsight-based liability and reiterated that the “mere possibility of harm” is insufficient.
The Commonplace Condition Doctrine in Parking Lot Pothole Cases
Small Pavement Defects
McIntire serves as the most direct case concerning potholes. The Texas Supreme Court evaluated several factors:
Size (less than one inch deep)
Lack of prior incidents
No distinguishing features from other minor pavement defects
The natural, ubiquitous formation of such irregularities
The Court concluded that tiny surface defects are expected features of parking lots, and invitees are generally aware of them.
This significantly strengthens summary judgment arguments in cases involving:
Minor potholes
Shallow depressions
Small cracks or divots
Gradual elevation changes
Defense strategies now focus on demonstrating ordinariness, ubiquity, and the absence of prior incidents.
What Canales Adds: Industry Practice and the Absence of Transforming Circumstances
Canales extends the doctrine beyond pavement defects to retail display conditions. The Court emphasized:
No evidence of prior complaints or injuries at the store.
No regulatory violations.
The practice was widely accepted and long-used in the industry.
Expert testimony suggesting something “could” cause injury does not establish unreasonable risk.
Importantly, the Court required plaintiffs to show something that transforms a common condition into one “measurably more likely to cause injury."
For parking lot pothole cases, this means plaintiffs must now produce evidence such as:
Prior documented falls
Complaints or internal reports
Code violations
Evidence that the defect was unusually large or concealed
Surrounding circumstances that increase the risk
Without such evidence, the condition remains an everyday hazard.
Application Beyond Parking Lots: Sidewalks and Roadways
Sidewalk Elevation Changes
The reasoning in both cases readily extends to:
Minor sidewalk height differentials
Hairline cracks
Naturally weathered surfaces
Gradual slopes
If the condition is small, common, and has not resulted in prior incidents, the commonplace condition defense is now a powerful tool.
Roadway Conditions
The doctrine may also apply to:
Minor road depressions
Routine wear-and-tear irregularities
Naturally occurring surface deterioration
The Court’s emphasis on ubiquity and natural formation in McIntire suggests that not every pavement irregularity gives rise to liability, even where injury results.
However, roadway cases may involve sovereign immunity or statutory frameworks that complicate direct application.
The Limiting Language: Is the Doctrine Narrow?
Defense counsel should take note of the Court’s caution.
In McIntire, the Court expressly stated that it was making “no broad pronouncements” about pavement defects generally. This language signals that:
Larger potholes may still create factual issues.
Poor lighting or concealment could matter.
Prior incidents could alter the analysis.
Code violations may change the outcome.
Similarly, Canales heavily relies on the absence of evidence showing prior injuries, regulatory violations, or unusual circumstances.
In other words, while the commonplace condition defense is powerful, it is also fact-dependent.
Strategic Takeaways for Premises Owners and Insurers
Develop evidence of ordinariness. Photographs, measurements, and comparisons to similar conditions are critical.
Document inspections. Evidence of routine inspection undermines claims of unreasonable risk.
Investigate prior incidents. The absence of prior complaints was decisive in both cases.
Challenge expert testimony aggressively. Both opinions make clear that testimony suggesting something “could” cause injury is insufficient.
Push for summary judgment. These cases reaffirm that courts—not juries—can decide unreasonable danger as a matter of law.
Conclusion: A Significant Shift in Parking Lot and Surface Defect Litigation
McIntire and Canales represent a strong reaffirmation of the Texas Supreme Court’s resistance to turning landowners into insurers of visitor safety.
Minor potholes, everyday surface defects, ordinary pallets, and ubiquitous conditions do not automatically create liability simply because someone was injured.
The key question is no longer whether injury was possible, but whether the condition was sufficiently probable to cause harm that a reasonably prudent person would foresee it as likely.
For parking lot pothole cases and potentially sidewalk and roadway claims, the commonplace condition defense is now one of the most important tools in a premises liability practitioner’s arsenal.
In summary, understanding the nuances of these cases is essential for effective legal defense strategies in Texas.
