Premises liability deals with the breach of duty that is owed by an owner or occupier of property to protect invitees from dangerous conditions and defects on the property. The owner/occupier has a duty to exercise reasonable care in the management of the premises to ensure persons are protected from an unreasonable risk of harm. Premises liability laws make the person who is in possession of land or premises liable for injuries suffered by persons who visit the premises. While some premises cases appear simple, knowing the law is essential.  In some states the law is set up to favor the premises owner not the victim.  In other states, the law favors the one who is injured.

Most Common Types of Premises Liability Cases

  • Dog Bites
  • Slip-and-Fall
  • Inadequate Security
  • Asbestos Exposure
  • Roadway and Sidewalk Defects
  • Poorly Lit Staircase
  • Iced Entranceway to Premises

No matter the type of property or injury involved, property owners are liable for all injuries incurred due to hazards associated with their property, whether a home or business.  For instance, if a property owner fails to repair a broken step on their property and a visitor falls down those stairs and suffers injury, the property owner can be held liable for the person’s medical expenses and more.

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
  2. 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).

  3. Duty Owed to a Licensee
  4. 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.

  5. Duty Owed to a Trespasser
  6. 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.

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).

If you, a friend, or loved one have suffered a serious injury on someone’s property, call us today to discuss your case for free.