An owner or occupier of land has a duty to keep the premises under his or her control in a safe condition. Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985).  This duty may subject the owner to liability for negligence under two situations: 1) those arising from a premises defect; and 2) those arising from an activity or instrumentality. Id.  To recover under a premises defect theory, the plaintiff must have been injured by a condition on the property. Keetch v. Kroger, 845 S.W.2d 262, 264 (Tex. 1992).  Premises liability is a special form of negligence law with different elements that define a property owner or occupant's duty with respect to those who enter the property. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005).  Recovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than a condition created by the activity. Timberwalk Apartrments, Partners, Inc. v. Cain, 972, S.W.2d 749, 753 (Tex. 1998). If an injury was caused by a condition created by an activity rather than the activity itself, a plaintiff is limited to a premises liability theory of recovery. Crooks v. Moses, 138 S.W.3d 629, 639 (Tex. App.– Dallas 2004, no pet). 


PREMISES DEFECT CASES.  The elements of a premises defect claim are: (1) a premises condition posed an unreasonable risk of harm, (2) the owner or occupier had actual or constructive knowledge of the condition, (3) the owner or occupier did not use reasonable care to reduce or eliminate the unreasonable risk, and (4) the owner’s or occupier’s failure to use reasonable care proximately caused the claimant’s injuries. Gillespie v. Kroger Tex., L.P., 415 S.W.3d 589, 592 (Tex. App.–Dallas 2013, pet. denied). To prevail on a premises liability claim based on defect, plaintiff has to establish the existence of a legal duty owed by the defendant to him, breach of that duty, and damages proximately resulting from the breach. West. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); West v. SMG, 318 S.W.3d 430, 437 (Tex.App.– Houston [1st Dist.] 2010, no pet.). The duty owed by the defendant to the plaintiff in a premises liability case depends upon the status of the plaintiff at the time the injury occurred, e.g., whether the plaintiff was a trespasser, licensee, or invitee. Rosas v. Buddies Food Store, 518 S.W.2d 534, 535 (Tex. 1975). 


A. Duty Owed to an Invitee.  An invitee is "one who enters the property of another 'with the owner's knowledge and for the mutual benefit of both.'" Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex.1996) (quoting Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975)). The general rule is that a landowner has a duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015).  Ordinarily, the landowner need not do both, and can satisfy its duty by providing an adequate warning even if the unreasonably dangerous condition remains.  An owner’s or occupier’s knowledge of a dangerous condition can be actual or constructive. Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014).  Actual knowledge is knowledge “of the dangerous condition at the time of the incident, not merely the possibility that a dangerous condition could develop over time.” City of Corsicana v. Stewart, 249 S.W.3d 412, 413-14 (Tex. 2008).  Constructive knowledge can be a substitute in the law for actual knowledge. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex. 2000).  In premises liability cases, constructive knowledge can be established by showing that the dangerous condition had existed long enough for the owner or occupier to have discovered it upon reasonable inspection. Id. In many cases, but not all, the duty does not extend to warning the invitee of hazards that are open and obvious. Austin, 465 S.W.3d at 203.  When invitees are aware of dangerous premises conditions-whether because the danger is obvious or because the landowner provided an adequate warning-the condition will, in most cases, no longer pose an unreasonable risk because the law presumes that invitees will take reasonable measures to protect themselves against known risks, which may include a decision not to accept the invitation to enter onto the landowner's premises. Id. In some cases, however, an obvious condition or a warning is not sufficient to make the condition reasonably safe as matter of law. Id. at 204. These exceptions are the criminal activity exception, and the necessary use exception, discussed below. In cases involving these exceptions, the obviousness of the danger and the invitee's appreciation of it may be relevant to a landowner's defense based on the invitee's proportionate responsibility, but they do not relieve the landowner of its duty to make the premises reasonably safe. Id. at 204. 


1. Criminal Activity Exception.  A complaint that a property owner failed to provide adequate security against criminal conduct is ordinarily a premises liability claim. Timberwalk Apts., Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998); West v. SMG, 318 S.W.3d 430, 437-38 (Tex. App.--Houston [1st Dist.] 2010, no pet.).  While a landowner ordinarily has no legal duty to protect another from the criminal acts of a third person, a landowner in control of the premises does have a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015)(citing Timberwalk, at 756 (Tex.1998)).  The duty exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Id.; Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010).  This limited exception applies in cases involving dangers resulting from a third party's criminal conduct in which the landowner should have anticipated that the harm would occur despite the invitee's knowledge of the risks. Austin, at 206.  In such cases, the invitee's appreciation of the danger remains relevant to the landowner's proportionate-responsibility defenses, but it does not relieve the landowner of its duty to take reasonable steps to make the premises safe. Id.  This exception may apply no matter what the status of the plaintiff. See Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999)(Property owners owe a duty to those who may be harmed by the criminal acts only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable.) 


2. Necessary-use exception.  In 2015, the Texas Supreme Court clarified that another exception applies when the facts demonstrate that (1) it was necessary that the invitee use the unreasonably dangerous premises, and (2) the landowner should have anticipated that the invitee was unable to avoid the unreasonable risks despite the invitee's awareness of them. Austin, at 207.  This exception was recognized in Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978).  In Parker, the landowner was found responsible for an invitee’s fall down a dimly-light common area staircase, in which the invitee’s use of a flashlight could not adequately protect her. Id. at 514. Just like the criminal activity exception, when this necessary-use exception applies, the plaintiff's awareness of the risk does not relieve the landowner's duty to make the premises safe, but it remains relevant to the issue of proportionate responsibility unless that defense is legally unavailable. 


B. Duty Owed to a Licensee.  A licensee enters and remains on the premises with the owner's consent and for the licensee's own convenience, or on business with someone other than the owner. Wilson v. Nw. Texas Healthcare Sys., Inc., 576 S.W.3d 844, 850 (Tex. App. 2019)(citing Mayer v. Willowbrook Plaza, Ltd. P'ship, 278 S.W.3d 901, 910 (Tex. App.—Houston [14th Dist.] 2009, no pet).  The duty owed to a licensee is not to injure the licensee willfully, wantonly, or through gross negligence, and, in cases in which the owner has actual knowledge of a dangerous condition unknown to the licensee, to warn of or make safe the dangerous condition. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (Tex. 2016).  A property owner is liable to a licensee only if the owner has actual knowledge of the condition that injured the licensee. Wong v. Tenet Hosps., Ltd., 181 S.W.3d 532, 537 (Tex. App.—El Paso 2005, no pet.).  Actual knowledge rather than constructive knowledge of the dangerous condition is required, rather than constructive knowledge which is sufficient for liability to an invitee. Sampson, 500 S.W.3d at 392. Furthermore, for there to be liability to a licensee, it must be shown that the owner actually knew of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition could develop over time. Id. 


C. Duty Owed to a Trespasser.   A trespasser enters another’s property without lawful authority, permission or invitation. The only duty owed to a trespasser is the duty not to cause injury willfully, wantonly, or through gross negligence. 


D. Special Situations: 


1. Liability for Negligent Acts of Independent Contractors.  Chapter 95 of the Texas Civil Practice and Remedies Code was enacted in 1996 and applies to claims against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor which arise from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates or modifies the improvement. Tex. Civ. Prac. & Rem. Code § 95.002.  Under Chapter 95, a property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repair, renovates or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless: 1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and 2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death or property damage and failed to adequately warn. Id. § 95.003. Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 699 (Tex.App.– Houston [14th Dist] 2007, pet. denied). 


2. Wild Animals.  A premises owner generally owes no duty to protect invitees from wild animals on the owner's property. Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 896-97 (Tex. 2016). This is a longstanding doctrine in Texas law known as “ferae naturae”, and under the doctrine, a landowner has no duty "unless the landowner actually reduced indigenous wild animals to the landowner’s possession or control," "introduced nonindigenous animals into the area," or affirmatively "attracts the animals to the property." Id. at 897. An additional exception to the general no-duty rule, has been found by Texas Courts holding that a landowner could be negligent with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it. Hallis v. McCall, ___ S.W.3d ___ (Tex. 2020), 63 Tex. Sup Ct. J. 577, 2020 WL 1233348, * 3.  While landowners cannot be held to account for every animal that finds its way inside, particularly small animals like insects and spiders that may easily enter and escape detection, it is also reasonable to expect invitees as a general matter to not exercise any particular vigilance with respect to wild animals when inside.  Thus, when a wild animal enters such a structure, and the owner knows or has reason to know about the animal's presence and the unreasonable risk of harm presented thereby but the invitee does not, it is reasonable to expect the owner to take steps to alleviate the danger or at least warn the invitee of it. Id.  Under this exception, a duty akin to the general duty owed to invitees under Texas law-that is, a duty to warn of or make safe from an unreasonably dangerous condition about which the owner knows or reasonably should know but the invitee does not, arises with respect to "wild animals found in artificial structures or places where they are not normally found. Hallis at 3. (citing Nami, 498 S.W.3d at 897). 


3. Claims against Governmental Entities.   Chapter 101 of the Texas Civil Practice and Remedies Code provides that a governmental unit in the state is liable for: 1) property damage, personal injury and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment, and the employee would be personally liable to the claimant according to Texas law; and 2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem. Code § 101.021.  Generally, if a claim arises from a premises defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises. Tex. Civ. Prac. & Rem. Code § 101.022. 


NEGLIGENT ACTIVITY CASES.  If the plaintiff is injured as a contemporaneous result of the activity, rather than by a condition created by the activity, the claim is a negligent activity. Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015).  Negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner's failure to take measures to make the property safe. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010).  A claim for negligent activity is submitted on a general-negligence question. United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017).  Texas recognizes that almost all artificial conditions are necessarily created by an activity but Texas courts have repeatedly refused to blur the lines between negligent activity and premises liability, holding that an activity that creates a condition is not the kind of contemporaneous activity necessary for a negligent activity claim. United Scaffolding, 537 S.W.3d at 472; Del Lago, 307 S.W.3d at 776. Essential to any recovery on a negligent-activity theory is a showing that the person has been injured "by or as a contemporaneous result of the activity itself rather than by a condition created by the activity." Keetch, 845 S.W.2d at 264.


Statute of Limitations.  The statute of limitations for negligence actions is two years.  Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a).

Premises Liability

© 2020 Mark Courtois

© 2020 Funderburk Funderburk Courtois, LLP.   All rights reserved.

Unless otherwise noted, attorneys in the firm are not certified by the Texas Board of Legal Specialization.

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