premise defect claim in Texas

2015See Miranda, 133 S.W.3d at 226 ; Payne, 838 S.W.2d at 237 .

2002Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992) (op. on reh'g); State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974); see also Chapman v. City of Houston, 839 S.W.2d 95, 100 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (mere pleading that the State should have warned or protected plaintiff from a dangerous condition does not raise a premise defect claim; plaintiff must plead that the State engaged in willful, wanton, or grossly negligent conduct or that the State had knowledge of a dangerous condition while plaintiff did not). 20 .

2023We conclude the plaintiffs’ claims are properly characterized as a premise defect claim, not a special defect claim.2 We further conclude the 2See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (Tex. 2016) (explaining that for premise defect claims under the Tort Claims Act, the premises owner has a duty to “use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not”). 2 plaintiffs failed to establish a genuine issue of material fact exists on the issue of whether the City had actual knowledge o

2022The “Texas Supreme Court has held that a premise- defect claim for purposes of the TTCA, as with the common law, is distinguished by ‘a nonfeasance theory based on the owner’s failure to take measures to make the property safe,’ focusing on injury from a ‘condition’ of real property, as contrasted with ‘affirmative, contemporaneous conduct by the owner that caused the injury.’” Texas Facilities Comm’n v. Speer, 559 S.W.3d 245, 256 (Tex. App.—Austin 2018, no pet.) (quoting Sampson v. University of Tex., 500 S.W.3d 380, 388 (Tex. 2016)).

2024See City of Dallas v. Prado, 373 S.W.3d 848, 855 (Tex. App.—Dallas 2012, no pet.) (first citing Miranda, 133 S.W.3d at 233 , and then citing Justus, 329 S.W.3d at 665 ).

2015See Miranda, 133 S.W.3d at 226 ; Payne, 838 S.W.2d at 237 .

2024See City of Dallas v. Prado, 373 S.W.3d 848, 855 (Tex. App.—Dallas 2012, no pet.) (first citing Miranda, 133 S.W.3d at 233 , and then citing Justus, 329 S.W.3d at 665 ).

2012Miranda, 133 S.W.3d at 233 ; City of Richardson v. Justus, 329 S.W.3d 662, 665 (Tex.App.-Dallas 2010, no pet.).

2019A premise-defect claim is a common instance of a claim for "injury and death caused by a condition ... of real property." Id. ; see State v. Shumake , 199 S.W.3d 279 , 281 (Tex. 2006).

2013State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006).

2013See City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex.2008) ("Special defects are defects of the same kind or class as 'excavations or obstructions on highways, roads, or streets.’ ’’).

2008See Reed, 258 S.W.3d at 623 .

2012Thus, [the claimant]’s petition d[id] not state a premise-defect claim under the Act.” Id. (citations omitted); see also Brazoria Cnty. v. Van Gelder, 304 S.W.3d 447, 454 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (concluding that even if pavement sloped at steep or abrupt angle, roadway’s design reflected discretionary act for which governmental unit retained immunity); Berry v. City of Reno, 107 S.W.3d 128, 132-33 (Tex. App.—Fort Worth 2003, no pet.) (holding that section 101.056(2) of civil practice and remedies code barred plaintiffs’ suit based on allegedly negligent “design and c

2012Thus, [the claimant]'s petition d[id] not state a premise-defect claim under the Act." Id . (citations omitted); see also Brazoria Cnty. v. Van Gelder , 304 S.W.3d 447, 454 (Tex. App.--Houston [14th Dist.] 2009, pet. denied) (concluding that even if pavement sloped at steep or abrupt angle, roadway's design reflected discretionary act for which governmental unit retained immunity); Berry v. City of Reno , 107 S.W.3d 128, 132-33 (Tex. App.--Fort Worth 2003, no pet.) (holding that section 101.056(2) of civil practice and remedies code barred plaintiffs' suit based on allegedly negligent "design

2012Thus, [the claimant]’s petition d[id] not state a premise-defect claim under the Act.” Id. (citations omitted); see also Brazoria Cnty. v. Van Gelder, 304 S.W.3d 447, 454 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (concluding that even if pavement sloped at steep or abrupt angle, roadway’s design reflected discretionary act for which governmental unit retained immunity); Berry v. City of Reno, 107 S.W.3d 128, 132-33 (Tex. App.—Fort Worth 2003, no pet.) (holding that section 101.056(2) of civil practice and remedies code barred plaintiffs’ suit based on allegedly negligent “design and c

2012Thus, [the claimant]'s petition d[id] not state a premise-defect claim under the Act." Id . (citations omitted); see also Brazoria Cnty. v. Van Gelder , 304 S.W.3d 447, 454 (Tex. App.--Houston [14th Dist.] 2009, pet. denied) (concluding that even if pavement sloped at steep or abrupt angle, roadway's design reflected discretionary act for which governmental unit retained immunity); Berry v. City of Reno , 107 S.W.3d 128, 132-33 (Tex. App.--Fort Worth 2003, no pet.) (holding that section 101.056(2) of civil practice and remedies code barred plaintiffs' suit based on allegedly negligent "design

2012Thus, [the claimant]’s petition d[id] not state a premise-defect claim under the Act.” Id. (citations omitted); see also Brazoria Cnty. v. Van Gelder, 304 S.W.3d 447, 454 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (concluding that even if pavement sloped at steep or abrupt angle, roadway’s design reflected discretionary act for which governmental unit retained immunity); Berry v. City of Reno, 107 S.W.3d 128, 132-33 (Tex. App.—Fort Worth 2003, no pet.) (holding that section 101.056(2) of civil practice and remedies code barred plaintiffs’ suit based on allegedly negligent “design and c

2012Thus, [the claimant]'s petition d[id] not state a premise-defect claim under the Act." Id . (citations omitted); see also Brazoria Cnty. v. Van Gelder , 304 S.W.3d 447, 454 (Tex. App.--Houston [14th Dist.] 2009, pet. denied) (concluding that even if pavement sloped at steep or abrupt angle, roadway's design reflected discretionary act for which governmental unit retained immunity); Berry v. City of Reno , 107 S.W.3d 128, 132-33 (Tex. App.--Fort Worth 2003, no pet.) (holding that section 101.056(2) of civil practice and remedies code barred plaintiffs' suit based on allegedly negligent "design

2010Reconveyance Corp., 309 S.W.3d 619, 630 (Tex.App.-Houston [14th Dist.] 2010, no pet. h.) ("[A]bsent a decision from a higher court or this court sitting en banc that is on point and contrary to the prior panel decision . . ., this court is bound by the prior holding of another panel of this court."). [2] "Negligent implementation" within the context of a claim under the TTCA is discussed in greater depth infra. [3] To the extent appellees allege that the lack of traffic-monitoring cameras caused a dangerous condition because there were no people monitoring the roadway, they fail to allege a pr

2010Reconveyance Corp ., No. 14-08-00115-CV, 2010 WL 660166, at *9 (Tex. App.—Houston [14th Dist.] Feb. 25, 2010, no pet. h.) (“[A]bsent a decision from a higher court or this court sitting en banc that is on point and contrary to the prior panel decision . . . , this court is bound by the prior holding of another panel of this court.”). [2] “Negligent implementation” within the context of a claim under the TTCA is discussed in greater depth infra . [3] To the extent appellees allege that the lack of traffic-monitoring cameras caused a dangerous condition because there were no people monitoring th

2010P'ship v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996) ("A judicial admission must be a clear, deliberate, and unequivocal statement."). [6] "Negligent implementation" within the context of a claim under the TTCA is discussed in greater depth infra. [7] To the extent appellees allege that the lack of traffic-monitoring cameras caused a dangerous condition because there were no people monitoring the roadway, they fail to allege a premise-defect claim under the TTCA.

2010P’ship v. Bingo Idea-Watauga, Inc. , 936 S.W.2d 275, 278 (Tex. 1996) (“A judicial admission must be a clear, deliberate, and unequivocal statement.”). [6] “Negligent implementation” within the context of a claim under the TTCA is discussed in greater depth infra . [7] To the extent appellees allege that the lack of traffic-monitoring cameras caused a dangerous condition because there were no people monitoring the roadway, they fail to allege a premise-defect claim under the TTCA.

2006See Miller, 51 S.W.3d at 587 (reasoning that the nonuse of property cannot support a claim under the TTCA). [5] In Bossley , the supreme court found it unnecessary to address an amicus curiae brief filed by the Attorney General arguing that "negligence in the use or condition of real property does not state a cause of action under the [TTCA], unless it is a premise defect claim under section 101.022(1)." Bossley, 968 S.W.2d at 341 .

2006See Miller , 51 S.W.3d at 587 (reasoning that the nonuse of property cannot support a claim under the TTCA). 5: In Bossley , the supreme court found it unnecessary to address an amicus curiae brief filed by the Attorney General arguing that “negligence in the use or condition of real property does not state a cause of action under the [TTCA], unless it is a premise defect claim under section 101.022(1).” Bossley , 968 S.W.2d at 341 .

2005Id. §§ 101.022(a), 101.021(2); Brown, 80 S.W.3d at 554-55 .

2005See Brown, 80 S.W.3d at 556 .

2004See Clay v. City of Fort Worth, 90 S.W.3d 414 (Tex.App.-Austin 2002, no pet.).

2003See Clay v. City of Fort Worth , 90 S.W.3d 414 (Tex. App.--Austin 2002, no pet.).

2006See Miller, 51 S.W.3d at 587 (reasoning that the nonuse of property cannot support a claim under the TTCA). [5] In Bossley , the supreme court found it unnecessary to address an amicus curiae brief filed by the Attorney General arguing that "negligence in the use or condition of real property does not state a cause of action under the [TTCA], unless it is a premise defect claim under section 101.022(1)." Bossley, 968 S.W.2d at 341 .

2006In Bossley , the supreme court found it unnecessary to address an amicus curiae brief filed by the Attorney General arguing that "negligence in the use or condition of real property does not state a cause of action under the [TTCA], unless it is a premise defect claim under section 101.022(1).” Bossley, 968 S.W.2d at 341 .

2024See City of Dallas v. Prado, 373 S.W.3d 848, 855 (Tex. App.—Dallas 2012, no pet.) (first citing Miranda, 133 S.W.3d at 233 , and then citing Justus, 329 S.W.3d at 665 ).

2022The “Texas Supreme Court has held that a premise- defect claim for purposes of the TTCA, as with the common law, is distinguished by ‘a nonfeasance theory based on the owner’s failure to take measures to make the property safe,’ focusing on injury from a ‘condition’ of real property, as contrasted with ‘affirmative, contemporaneous conduct by the owner that caused the injury.’” Texas Facilities Comm’n v. Speer, 559 S.W.3d 245, 256 (Tex. App.—Austin 2018, no pet.) (quoting Sampson v. University of Tex., 500 S.W.3d 380, 388 (Tex. 2016)).

2021A premise-defect claim is a common instance of a claim for “injury and death caused by a condition of . . . real property.” Tarrant Reg’l Water Dist. v. Johnson, 572 S.W.3d 658, 664 (Tex. 2019).

2019The issue before us is whether the City’s failure to provide visible contrast between the curb and flares or to warn about the alleged hazard in the garage falls within the discretionary function exception to the waiver of governmental immunity. “[D]ecisions about installing safety features are discretionary decisions for which the State may not be sued.” Texas Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002); see id. (holding State immune from suit arising from failure to install barriers or guardrails in highway median); San Miguel, 2 S.W.3d at 251 (holding State immune from suit

2019See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 469 (Tex. 2017)(discussing distinction between negligent activity and premises defect claims); Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 215 (Tex. 4 A general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner.

2019The issue before us is whether the City’s failure to provide visible contrast between the curb and flares or to warn about the alleged hazard in the garage falls within the discretionary function exception to the waiver of governmental immunity. “[D]ecisions about installing safety features are discretionary decisions for which the State may not be sued.” Texas Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002); see id. (holding State immune from suit arising from failure to install barriers or guardrails in highway median); San Miguel, 2 S.W.3d at 251 (holding State immune from suit

2019The issue before us is whether the City’s failure to provide visible contrast between the curb and flares or to warn about the alleged hazard in the garage falls within the discretionary function exception to the waiver of governmental immunity. “[D]ecisions about installing safety features are discretionary decisions for which the State may not be sued.” Texas Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002); see id. (holding State immune from suit arising from failure to install barriers or guardrails in highway median); San Miguel, 2 S.W.3d at 251 (holding State immune from suit

2019See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 469 (Tex. 2017)(discussing distinction between negligent activity and premises defect claims); Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 215 (Tex. 4 A general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner.

2014Payne, 838 S.W.2d at 237 ; City of Dallas v. Giraldo, 262 S.W.3d 864, 869 (Tex. App.—Dallas 2008, no pet.).

2013A personal injury claimant alleging a premise defect claim against a city with respect to a licensee must plead and prove either (1) that the city’s conduct was “willful, wanton, or grossly negligent” or (2) that “the city had actual knowledge of the dangerous condition, the claimant did not, and the city failed to warn of the condition or make the condition reasonably safe.” City of Weston v. Gaudette, 287 S.W.3d 832, 836 (Tex. App.-Dallas 2009, no pet.); see Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 69-70 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) (holding that limited duty owed to lice

2013A personal injury claimant alleging a premise defect claim against a city with respect to a licensee must plead and prove either (1) that the city’s conduct was “willful, wanton, or grossly negligent” or (2) that “the city had actual knowledge of the dangerous condition, the claimant did not, and the city failed to warn of the condition or make the condition reasonably safe.” City of Weston v. Gaudette, 287 S.W.3d 832, 836 (Tex. App.-Dallas 2009, no pet.); see Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 69-70 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) (holding that limited duty owed to lice

2011See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 775 (Tex. 2010)(“As to landowners, we have recognized negligent-activity and premises-liability theories of liability.”); State v. Estate of Horton, 4 S.W.3d 53, 54 (Tex.App.--Tyler 1999, no pet.)(“A claim which relates to a ‘defect’ in the condition of real property is a premises defect claim.”).