A slip-and-fall case alleging a restaurant created an “extremely dangerous condition” by having customers and employees throw peanut shells on the floor has turned out to be worth a lot more than peanuts as a jury awarded $185,000 to a Texas woman and her husband.

Angela Bishoff appears to be the first plaintiff ever to win a slip-and-fall case involving a restaurant's peanut shell-throwing policy. She broke her kneecap after slipping on “peanuts and peanut debris” at the Temple, Texas, location of the Texas Roadhouse (Nasdaq: TXRH) chain.

The verdict includes $50,000 for Bishoff's pain and mental anguish and $58,000 for past and future medical expenses. The Bell County District Court Jury also awarded her husband $10,000 for loss of consortium.

“Defendants breached their duty to Plaintiff by employing a dangerous practice of throwing, and encouraging others to throw, peanut shells and debris on the floor when they knew or should have known that such activity was likely to cause people to slip and fall,” Bishoff alleged in her complaint.

Texas Roadhouse argued during the trial that the peanut shells were an “open and obvious” condition and a plaintiff's verdict would mean circuses, carnivals and sports stadiums would have to stop selling peanuts.

But under Texas law, a condition is not open and obvious if a plaintiff does not have “knowledge and appreciation thereof.”

“Even though the shells may have been open and obvious, [Bishoff] did not have an appreciation that they could be dangerous,” Bishoff attorney Vic Feazell of Austin, Texas, tells On Point. “Also, the few shells that may still contain a peanut in them are not 'open and obvious' and are more dangerous.”

Bishoff fell in an area of the restaurant with a hardwood floor, which, unlike a concrete floor, would not absorb the oil from peanuts and peanut shells. “If this had happened on the concrete section of the restaurant, I don't think we would have won,” Feazell admits.

The plaintiff did not win a complete victory since the jury found her 50 percent to blame for her injuries, agreeing to some extent with the defense that Bishoff, who was wearing high heels, failed to exercise ordinary care when she walked across the restaurant floor.

The finding of comparative negligence reduces the jury's award to $92,500. In Texas, a plaintiff whose fault is more than 50 percent is not entitled to any damages.

Feazell doubts the verdict will deter peanut sales since he has “never seen a carnival or circus held on a hardwood floor and the seats in Texas Stadium certainly aren't on hardwood.” He does suggest that restaurants with a peanut shell-throwing policy “should post a warning sign or sweep more often or [not] use hardwood floors.”

A similar case against Texas Roadhouse in Texarkana is scheduled for trial in January. “Peanut shells, if any, on the floor ... would be an open, obvious and unconcealed condition, and therefore, Defendant did not owe Plaintiff a duty to warn,” the company argued in a motion for summary judgment.

By Matthew Heller
10/27/08