A restaurant's “gimmick” of having customers and employees throw peanut shells on the floor may make it liable for the slip-and-fall injuries of a Texas woman even if the condition of the floor was “open and obvious” to her.

Angela Bishoff alleges the peanut shell-throwing policy at the Temple, Texas, location of the Texas Roadhouse chain constitutes a breach of its “duty to provide a safe environment to eat.” After finishing a meal at the restaurant in June 2006, she slipped on “peanuts and peanut debris” while walking across the floor and broke her kneecap.

“Defendants routinely serve unshelled peanuts to customers ... while intentionally not providing the customers with a receptacle to dispose of the peanut shells and debris,” Bishoff says in her complaint, and this “marketing gimmick”

created an unreasonably dangerous risk to Plaintiff, Angela Bishoff, and other patrons of the restaurant, of which Defendants had actual or constructive knowledge.

To recover slip-and-fall damages in a premises liability case, a plaintiff must show, among other things, that the owner of the premises knew of the dangerous condition and that the condition posed an unreasonable risk of harm.

Bishoff's case is similar to that of a Kentucky woman who slipped on peanut shells at a Louisville restaurant. Affirming summary dismissal, the Kentucky Court of Appeals said the restaurant owner was not liable for Rebecca Johnson's injuries because the condition of the floor was “open and obvious” to her.

Johnson was at the restaurant for two hours before her fall, the court noted in Johnson v. Lone Star Steakhouse, 997 S.W.2d 490 (1999), and “concedes that she was aware of the peanut shells and considered them a hazard.”

Bishoff had dinner with her husband before she slipped on the shells, so she must have had more than enough time to recognize the condition of the Texas Roadhouse floor. The complaint does not state that her view of the floor was obstructed in any way.

But a Texas precedent involving injuries to a grocery store customer who tripped over a stock cart may favor Bishoff.

“[T]he plaintiff in a premises liability case has a duty to prove that the condition in question posed an unreasonable risk of harm, but does not have the burden to show that the condition is not open and obvious,” an appeals court said in Nevills v. H.E. Butt Grocery Co., 38 S.W.3d 294 (2001).

The Georgia Court of Appeals, moreover, allowed an injured woman to sue a restaurant over its peanut-shell policy, finding that the “plaintiff lacked equal knowledge with the defendants, which had superior knowledge because it had instituted and perpetuated such custom and practice.” McHenry v. Longhorn Steak, 560 S.E.2d 731 (2002).

Over the past couple of years, patrons who slipped on peanut shells have filed at least 10 slip-and-fall suits in seven states against Texas Roadhouse and a similar chain, Logan's Roadhouse. Could it be time to ditch peanuts and go for a less slippery gimmick?

By Peyton Burgess
4/11/07