Tripping over a gas pump hose: when the station can be responsible

Attorney Answer

Probably not on the hose alone. A Texas gas station owes its customers reasonable care against dangers it knows or should know about, but in most cases it owes no duty to protect a customer against a danger that is open and obvious, and a fuel hose running from the pump to the car you are filling is usually in plain view. A claim becomes realistic when something the station controlled made the pump area more dangerous than it should have been: a hose that would not retract or lay across a walkway, a fuel or oil slick, broken pavement, or poor lighting.

What the station owes a customer. As a paying customer you were an invitee. In Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983), the Supreme Court of Texas held that a property owner owes an invitee reasonable care to protect against unreasonable risks of harm it knows about or should know about. Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992), sets out what an injured customer has to prove: the owner knew or should have known of the condition; the condition posed an unreasonable risk of harm; the owner did not use reasonable care to reduce or eliminate the risk; and that failure caused the injury.

Why an ordinary hose is usually not enough. In Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015), the court explained that in most cases a property owner's duty is to make safe or warn about concealed dangers it knows or should know of, and that it owes no duty as to a danger that is open and obvious or already known to the person on the property. A condition also is not unreasonably dangerous just because someone can trip on it. In Brinson Ford, Inc. v. Alger, 228 S.W.3d 161 (Tex. 2007) (per curiam), a ramp that met applicable safety standards and was outlined in yellow striping was held not to pose an unreasonable risk of harm as a matter of law, because a condition is not unreasonably dangerous simply because it is not foolproof. A station will argue that a hose running from the pump to your own car while you were fueling it was in plain view.

The exception that can matter at a pump. Austin keeps two exceptions to the open-and-obvious rule, and one of them, necessary use, is the one a customer at a fuel pump would raise: it applies when the condition is unreasonably dangerous, the customer has to use that area, and even knowing of the danger the customer cannot take precautions that adequately reduce the risk. Whether it fits depends on what made the hose dangerous and whether you had a practical way around it.

When the station may be responsible. If something about the setup was wrong, the questions in Keetch come back into play. A hose that did not retract or was damaged; a hose lying across a walkway away from your car; fuel, oil or water pooled where you stepped; broken pavement around the island; or poor lighting: those are the kinds of facts that matter, along with whether the station knew or should have known about them.

Your own share of the fault. A station will also argue that stepping over a hose you could see was careless. Texas reduces a claimant's damages by the claimant's percentage of responsibility, under Tex. Civ. Prac. & Rem. Code § 33.012(a), and § 33.001 bars recovery entirely above half:

In an action to which this chapter applies, a claimant may not recover damages if his percentage of responsibility is greater than 50 percent.

What you can do

1. Write down what you remember about the hose, the pump and the ground where you fell: whether the hose was attached to your car, where it lay, whether anything was spilled, and what the lighting was like.

2. If you have not already, report the fall to the station in writing, and ask that any camera footage of the pump island from that time be kept, because footage may be recorded over.

3. Photograph the pump island, the hose and the pavement, if you can do it safely.

4. Keep every medical record and bill for the elbow.

5. Even if you are handling this yourself, you would be best served by a brief phone consultation with a local Texas attorney before you act. Most lawyers offer a short initial call at no cost, and a few minutes on your specific facts — and on how your court actually handles this — is worth more than any general guidance, including this page.

⏱ Time limits apply. Tex. Civ. Prac. & Rem. Code § 16.003(a) requires a suit for personal injury to be brought “not later than two years after the day the cause of action accrues”. When your claim accrued, and whether anything affects that, depends on your facts, so have a Texas attorney confirm the date rather than counting it yourself.