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Texas Premises Liability

©2015 Mark Courtois and Diane Davis

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). 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. 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. Id.

1. Duty Owed to an Invitee. An invitee is one who enters land with the owner's knowledge and for both the mutual benefit of both the owner and the invitee. Trosclair v. McMillan, 2013 Tex.Ap. LEXIS 12966, * 7 (Tex.App.- Houston [1st Dist.] 2013, no pet.). A property owner's duty to invitees encompasses only the duty to reduce or eliminate an unreasonable risk of harm created by his activity on the premises. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010). An owner or occupier of land must use reasonable care to protect an invitee from known conditions that create an unreasonable risk of harm and conditions that should be discovered by the exercise of harm and conditions that should be discovered by the exercise of reasonable care. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). 

2. Duty Owed to a Licensee. A licensee enters and remains on land with the owner's consent and for the licensee's own convenience, or on business with someone other than the owner. Trosclair, 2013 Tex.App. at *7. Absent a relationship that inures to the mutual benefit of the owner and the plaintiff, the plaintiff is a licensee. Id. at *7-8. The owner or occupier must refrain from injuring a licensee willfully, wantonly, or through gross negligence. Id. The owner or occupier who has actual knowledge of a dangerous condition unknown to the licensee must warn or of make safe the dangerous condition. Id.

3. 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. Id. at *8-9.

Duty Owed by Landlords to Tenants. Texas law recognizes that landlords have several duties with respect to premises turned over to the tenants. Shell Oil Co. v. Khan, 138 S.W.3d 288, 297 (Tex. 2004). Landlords have a duty to disclose concealed dangers and a duty of care as to common areas where they retain possession. Id. If the landlords agree to make certain repairs, the landlords have a duty to complete the repairs with care However, the landlords do not become liable for existing premises defects merely by retaining the right to re-enter the premises to make repairs. Id.

Negligent Activity. A negligent activity claim has the same elements as a normal negligence claim. A litigant may maintain causes of action for both general negligence and premises liability, but under the general-negligence theory of recovery, the claimant's injury must result from the defendant's contemporaneous activity. Somoza v. Rough Hollow Yacht Club, Ltd., No. 03-09-00308-CV, 2010 Tex. App. LEXIS 5796, at *12 (Tex. App.--Austin July 20, 2010, no pet.) (mem. op.) (citing State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006)). Negligent activity and premises liability are both within the scope of negligence, but 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., 307 S.W.3d at 762; see also Taylor v. Louis, 349 S.W.3d 729, 738 (Tex. App.--Houston [14th Dist.] 2011, no pet.) (noting that duty, breach, and proximate cause are elements of negligent-activity claims); see also State v. San Miguel, 981 S.W.2d 342, 347-48 (Tex. App.--Houston [14th Dist.] 1998), rev'd on other grounds, 2 S.W.3d 249 (Tex. 1999) (stating that claimant is entitled to general negligence charge in negligent-activity case).

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. The duty inquiry in a negligent-activity claim does not turn on whether a duty arose to take protective action based on special circumstances or the parties' relationship. See Custom Transit, L.P. v. Flatrolled Steel, Inc., 375 S.W.3d 337, 364 (Tex. App.--Houston [14th Dist.] 2012, pet. denied). "Instead, the duty inquiry focuses on injuries caused by contemporaneous actions or omissions in [the owner's] conduct." Id.

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).  Chapter 95's application is not limited to just claims involving the contractor's own work or negligence, rather it applies to an independent contractor's claim for damages caused by the contemporaneous negligent acts of the property owner.  Abutahoun v. The Dow Chemical Co.,  No. 13-0175, 2015 Tex. LEXIS 431 (Tex. May 8, 2015).

Criminal Acts of Third Parties. As a general rule, a person has no legal duty to protect another from the criminal acts of a third person or control the conduct of another." Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); see also Trammell Crow, 267 S.W.3d at 12; Newsom v. B.B., 306 S.W.3d 910, 913 (Tex. App.--Beaumont 2010, pet. denied).

1. Exceptions to the General Rule of Non-Liability. Texas law has recognized limited exceptions to the general rule of non-liability. See Newsom, 306 S.W.3d at 913. The existence of a special relationship may impose a duty to control a third party's conduct. Providence Health Ctr. v. Dowell, 262 S.W.3d 324, 331 (Tex. 2008); Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000). Examples of relationships that have been recognized as giving rise to a duty to control include employer/employee, parent/child, and independent contractor/contractee. See Greater Houston Transportation Co. d/b/a Yellow Cab Co. Of Houston, Inc., v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). A defendant in control of a dangerous person may owe a duty of care to persons foreseeably exposed to danger arising from the defendant's failure to reasonably exercise his right of control. Texas Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 38 (Tex. 2002). However, the scope of the duty is commensurate with the right of control and the extent of the danger. Id. Texas courts have also determined that a party who negligently creates a dangerous situation has a duty to attempt to prevent injury to others if it reasonably appears or should appear that others in the exercise of their lawful rights may be injured thereby. Carter v. Abbyad, 299 S.W.3d 892, 895 (Tex. App.--Austin 2009, no pet.) (citing SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 353 (Tex. 1995)). "However, a mere bystander who did not create a dangerous situation generally is not required to intervene and prevent injury to others." Id. In determining whether appellees were under a duty, we consider several interrelated factors including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on appellees. See Texas Home Mgmt.,89 S.W.3d at 33; see also Greater Houston, 801 S.W.2d at 525.

2. Failure to Provide Adequate Security. 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.). Premises liability is a special form of negligence where the duty owed to the plaintiff depends upon the status of the plaintiff as an invitee, licensee, or trespasser. Timberwalk, 972 S.W.2d at 753; Taylor v. Louis, 349 S.W.3d 729, 734 (Tex. App.--Houston [14th Dist.] 2011, no pet.). A social guest is generally classified as a licensee, not an invitee. Wyckoff v. George C. Fuller Contracting Co., 357 S.W.3d 157, 164 (Tex. App.--Dallas 2011, no pet.); McClure v. Rich, 95 S.W.3d 620, 624 (Tex. App.--Dallas 2002, no pet.). A property owner has a duty not injure a licensee by willful, wanton, or grossly negligent conduct and, in cases in which the property owner has actual knowledge of a dangerous condition unknown to the licensee, to either warn the licensee of the condition or make the condition reasonably safe. City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008); American Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 134 (Tex. App.--Houston [14th Dist.] 2001, pet. denied). With regard to the criminal acts of third parties, courts consider not only whether the danger was foreseeable, but also whether it was foreseeable that the danger would harm a particular plaintiff or one similarly situated. See Taylor, 349 S.W.3d at 734.

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.