Supreme Court of Texas

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No. 21-0208

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United Supermarkets, LLC,

Petitioner,

v.

Sherie McIntire, 

Respondent

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On Petition for Review from the

Court of Appeals for the Fifth District of Texas

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PER CURIAM

In this premises-liability suit, a customer sued the premises 

owner after she sustained serious injuries from tripping over an 

approximately 3/4-inch divot in a grocery store parking lot. The trial 

court rendered summary judgment for the store owner, concluding that 

the defect that caused the accident “does not rise to the level of being an 

‘unreasonably dangerous condition’ as a matter of law.” The court of 

appeals reversed, holding that a fact issue exists as to whether the defect 

presented an unreasonable risk of harm. We agree with the trial court 

that the divot is not unreasonably dangerous as a matter of law. 
2

Accordingly, we reverse the court of appeals’ judgment and reinstate the 

judgment of the trial court.

United Supermarkets, LLC owns a Market Street grocery store 

in Frisco. On June 11, 2018, Sherie McIntire,1 a regular customer, drove 

to Market Street to do her weekly grocery shopping. When she got out 

of her Ford F-250 truck’s elevated cabin, one of her heels caught an 

approximately 3/4-inch divot in the parking-lot pavement.2 McIntire’s 

ankles buckled and she fell to the ground, breaking her foot and leg.3

McIntire sued United, asserting premises-defect claims. United 

filed traditional and no-evidence motions for summary judgment, 

asserting that McIntire had not adduced evidence showing that United 

had notice of the defect or that it posed an unreasonable risk of harm, 

and that in any case, the defect was open and obvious. In support of her 

response, McIntire submitted deposition testimony, photographs of the 

divot, a demonstrative video of the accident, United’s policies and 

procedures, and an expert report written by a professional engineer and 

safety consultant. The trial court granted United’s motions. 

1 Our spelling of McIntire’s name conforms to the spelling of her name 

in the briefs and record.

2 Based on McIntire’s evidence, the divot appears to be more of a 

depression with gradually sloping edges. It is approximately 3/4 of an inch

deep at the deepest point and approximately six inches long at its longest point. 

3 For summary-judgment purposes, we presume the divot proximately 

caused McIntire’s fall. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49

(Tex. 1985) (when reviewing a motion for summary judgment we take as true 

all evidence favorable to the nonmovant). McIntire asserts that she saw the 

parking space’s white stripe, but not the divot, when she was jumping down 

from her truck.
3

The court of appeals reversed and remanded, holding that 

McIntire produced evidence sufficient to create a fact issue as to whether 

the defect was unreasonably dangerous. ___ S.W.3d ___, 2021 WL 

389095, at *1 (Tex. App.—Dallas Feb. 4, 2021). Specifically, the court of 

appeals reasoned that McIntire provided evidence that the size and 

shape of the divot indicated it posed an unreasonable risk of harm and 

that United failed to clearly mark the defect. Id. at *3. It also referenced 

McIntire’s expert’s report, which reflected that United may have run 

afoul of safety standards and stated that the defect could “cause a 

pedestrian’s foot to unexpectedly rotate or flex,” causing injury. Id.

United petitioned this Court for review. It argues that it is 

entitled to summary judgment because, among other things, the divot 

that caused McIntire’s fall was not unreasonably dangerous as a matter 

of law. We agree.

United owed McIntire, an invitee, a duty to “make safe or warn 

against any concealed, unreasonably dangerous conditions of which [it 

was], or reasonably should [have been], aware” but which she was not. 

United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 474 (Tex. 2017).4 

Whether a specific condition is unreasonably dangerous is ordinarily a 

fact question. Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 

(Tex. 1970). However, we have held that some particularly innocuous 

4 To prevail in a premises-liability case, the invitee plaintiff must show 

that (1) the owner had actual or constructive knowledge of the condition at 

issue; (2) the condition was unreasonably dangerous; (3) the owner did not 

exercise reasonable care to reduce or eliminate the unreasonable risk of harm; 

and (4) the owner’s failure to reduce or eliminate the unreasonable risk of harm 

proximately caused the plaintiff’s injuries. Keetch v. Kroger Co., 845 S.W.2d 

262, 264 (Tex. 1992). 
4

or commonplace hazards are not unreasonably dangerous as a matter of 

law. See, e.g., Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 415 

(Tex. 2010) (holding that a patch of ice causing a patron to slip and fall 

was not unreasonably dangerous as a matter of law); Brinson Ford, Inc. 

v. Alger, 228 S.W.3d 161, 163 (Tex. 2007) (holding that a pedestrian 

ramp did not pose an unreasonable risk of harm as a matter of law); 

Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 408-09 (Tex. 2006) 

(holding that the wet floor in front of a self-serve soft-drink display was 

not unreasonably dangerous as a matter of law); M.O. Dental Lab v. 

Rape, 139 S.W.3d 671, 676 (Tex. 2004) (holding that naturally occurring 

mud was not unreasonably dangerous as a matter of law).

A condition is unreasonably dangerous if “there is a sufficient 

probability of a harmful event occurring that a reasonably prudent 

person would have foreseen it or some similar event as likely to happen.” 

Seideneck, 451 S.W.2d at 754. In conducting this analysis, we have 

previously considered whether the relevant condition was clearly 

marked, its size, whether it had previously caused injuries or generated 

complaints, whether it substantially differed from conditions in the 

same class of objects, and whether it was naturally occurring. See, e.g., 

id.; Alger, 228 S.W.3d at 163; Taylor, 222 S.W.3d at 408; M.O. Dental 

Lab, 139 S.W.3d at 675-76.

In this case, application of those factors overwhelmingly 

demonstrates that the divot did not pose an unreasonable risk of harm. 

It measured less than an inch deep, and nothing in the record indicates 

it yielded other complaints or injuries or was “unusual” relative to other 
5

small pavement defects. If anything, the defect was profoundly 

ordinary. 

Additionally, we cannot conclude that “a person of ordinary 

intelligence[] should have anticipated” McIntire’s accident and the 

severity of her injuries. Nixon, 690 S.W.2d at 550. Tiny surface defects 

in pavement are ubiquitous and naturally occurring.5 Accordingly, 

reasonable invitees know that parking lots are not perfectly flat and 

even, and they use caution when exiting their vehicles. Indeed, to expect 

otherwise would impose an incredibly costly burden on businesses, 

which would have to identify and remedy every small crumble in the 

surfaces surrounding their premises. See, e.g., M.O. Dental Lab, 139 

S.W.3d at 675-76 (holding that muddy conditions are not unreasonably 

dangerous as a matter of law because “[m]ost invitees in Texas will 

encounter natural conditions involving ordinary mud regularly”); Fair, 

310 S.W.3d at 413 (noting that “holding a landowner accountable for 

naturally accumulated mud would impose a heavy burden”).

5 Surface irregularities like potholes and divots form when precipitation 

seeps into pavement, causing it to weaken and deteriorate, and the holes get 

larger as vehicles run over the weakened areas. See City of Houston, Houston 

Potholes Tracker: Frequently Asked Questions, What is a pothole?, 

http://www.houstontx.gov/potholes/faq.html#:~:text=A%20pothole%20forms%

20when%20water,5%20feet%20by%205%20feet. Like an “accumulation of 

mud on a man-made surface,” which may occur “without the assistance or 

involvement of unnatural contact,” Texas invitees will encounter small divots 

like the one at issue here regularly and accidents are “bound to happen, 

regardless of the precautions taken by landowners.” M.O. Dental Lab, 139 

S.W.3d at 676. Accordingly, invitees will generally be “as aware as landowners 

of the existence of [such conditions]” and “will often be in a better position to 

take immediate precautions against injury.” Id.
6

In reaching the opposite conclusion, the court of appeals made 

much of United’s failure to mark the divot. It noted that Chris Trevino, 

the store manager, testified that he regularly surveyed the Market 

Street parking lot and used upside-down grocery carts as barricades for 

particularly pernicious potholes. 2021 WL 389095, at *4. Trevino 

testified that he noticed the offending divot but did not think it 

constituted a hazard, and he did nothing to highlight its danger to 

potential customers. Id. But the fact that Trevino thought the defect 

too insignificant to warrant demarcation does not support the conclusion 

that the divot posed an unreasonable risk of harm. To the contrary, it 

indicates that Trevino believed the opposite to be true.

The court of appeals also relied on the following testimony from 

McIntire’s expert, a professional engineer and safety consultant, in 

holding that a fact issue existed as to the defect’s dangerousness:

• “[A] walking surface unevenness or depression of such size and 

depth as in this matter can cause a pedestrian’s foot to 

unexpectedly rotate or flex and cause injury as occurred when 

Mrs. McIntyre’s [sic] foot landed in the hole as she exited her 

pickup truck.” Id. at *3.

• “Changes in elevation (rises or depressions) in walking 

surfaces of the magnitude present in this matter due to the 

damaged section of the exterior concrete walkway have long 

been recognized in the codes, standards, and authoritative 

safety literature as presenting a serious and unreasonable 

risk of pedestrian missteps.” Id.
7

United argues that the court of appeals should not have even considered 

the expert report because it (1) ran afoul of Texas Rule of Evidence 702 

by addressing issues within the jury’s common knowledge, (2) opined on 

pure questions of law, and (3) was conclusory. McIntire contends that 

United waived any objections to the report’s admissibility by failing to 

raise them in the trial court. See Burbage v. Burbage, 447 S.W.3d 249, 

256 (Tex. 2014) (holding that preservation requires both a timely 

objection and a ruling) (citing TEX. R. APP. P. 33.1). 

Regardless of whether McIntire’s report was properly considered, 

it does not alter our conclusion. We have previously held that expert 

testimony does not create a fact issue as to whether a condition is 

unreasonably dangerous when undisputed, material facts demonstrate 

that it is not. See, e.g., Alger, 228 S.W.3d at 162-63 (holding that a ramp 

was not unreasonably dangerous as a matter of law despite expert 

testimony to the contrary). Indeed, testimony that a condition could 

injure an invitee is not evidence that it poses an unreasonable risk of 

harm. Landowners are not “insurer[s] of [a] visitor’s safety,” and they 

are not obligated to make the premises “foolproof.” Del Lago Partners, 

Inc. v. Smith, 307 S.W.3d 762, 769 (Tex. 2010) (quoting RESTATEMENT 

(SECOND) OF TORTS § 344 cmt. f (AM. LAW INST. 1965)); Taylor, 222 

S.W.3d at 408. The divot was small, unremarkable, and had posed no 

previous safety concerns. These undisputed facts demonstrate that it 

was not unreasonably dangerous as a matter of law.

Additionally, while applicable safety codes may be relevant to 

assessing whether a condition poses an unreasonable risk of harm, 

McIntire failed to submit evidence showing that the safety codes 
8

referenced in the expert report applied to the Market Street parking lot, 

either when the lot was constructed or on the date of McIntire’s accident. 

And United makes a compelling, unrebutted case that they did not.6 

Therefore, assuming the export report was appropriate summaryjudgment evidence, it does not raise a fact issue as to whether the divot 

was unreasonably dangerous.

In sum, we hold that the divot that allegedly caused McIntire’s 

injuries was not unreasonably dangerous as a matter of law.7 We 

emphasize that in so holding, we make no broad pronouncements on 

whether pavement defects constitute unreasonably dangerous 

conditions, and we do not opine on whether another larger or 

differentially situated defect could pose an unreasonable risk of harm. 

However, the defect at issue here did not. Accordingly, without hearing 

6 First, McIntire’s expert cites safety codes that simply were not in effect 

at the time of the accident. For example, the expert report cites the 2012 

International Building Code. But in 2018, when the accident took place, Texas 

law provided that “the International Building Code, as it existed on May 1, 

2003,” was the governing municipal building code for the state of Texas. Act 

of May 2, 2005, 79th Leg., R.S., ch. 389, § 4, 2005 Tex. Gen. Laws 1079, 1080 

(amended 2021) (codified at TEX. LOC. GOV’T CODE § 214.216(a) (emphasis 

added)). The report neither includes nor cites the 2003 version of the Code. 

The expert report also cites code provisions that manifestly do not apply to this 

case. For example, it references the 2009 National Fire Protection Association 

101 Life Safety Code. But this standard applies to “[m]eans of egress” for 

“buildings”—which does not include parking lots. Moreover, this standard is 

used for the inspection of “state-owned” and state-leased buildings by State 

Fire Marshals, not for inspection of private buildings (or parking lots) by city 

fire marshals or local fire departments. See TEX. ADMIN. CODE §§ 34.303(b), 

417.0081. 

7 In light of this holding, we need not and do not address United’s other 

issues, including whether the defect was open and obvious as a matter of law.
9

oral argument, we reverse the court of appeals’ judgment and reinstate 

the judgment of the trial court. TEX. R. APP. P. 59.1. 

OPINION DELIVERED: June 17, 2022