general no-duty rule in Texas

2016Id.

2013Apartment Cmtys., Inc. , 250 S.W.3d 191, 195 (Tex. App.—Dallas 2008, no pet.) (holding that there was no evidence that Mid-America retained physical possession of the air conditioner or that apartment dweller used it in common with others); see also Strunk , 225 S.W.3d at 99 . [6] Because no evidence exists that Appellees fall within either of the two exceptions pleaded by Appellants to the general no-duty rule, the trial court properly granted Appellees’ no-evidence motion for summary judgment on Appellants’ claims for premises liability.

2015See, e.g., Escoto, 288 S.W.3d at 412 ; Goss, 262 S.W.3d at 794 ; Moritz, 257 S.W.3d at 216 ; Islas, 228 S.W.3d at 651 ; Khan, 138 S.W.3d at 295 .

2013Appellants further argue that “[b]ecause Appellees retained a right of re-entry to make repairs to the windows, coupled with the prohibition on Appellants[’] repairing or altering the windows, Appellees retained control over the windows, creating a duty to maintain them so as not to pose a danger to Appellants.” Liability under the right-of-control exception is based on physical possession of common areas; the liability question “turns on who had possession of a part of the premises rather than a mere right of re-entry.” Shell Oil Co. v. Khan , 138 S.W.3d 288, 296 (Tex. 2004).

2013See City of Waco v. Kirwan, 298 S.W.3d 618, 623 (Tex. 2009) (“As with negligence actions . . . a defendant may be liable for gross negligence only to the extent that it owed the plaintiff a legal duty.”); West v. SMG, 318 S.W.3d 430 , 442–43 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (holding that trial court did not abuse its discretion by granting SMG’s motion for summary judgment because concertgoer failed to bring forth sufficient evidence on the element of duty, a necessary element of her negligence and gross negligence claims).

2013See City of Waco v. Kirwan , 298 S.W.3d 618, 623 (Tex. 2009) (“As with negligence actions . . . a defendant may be liable for gross negligence only to the extent that it owed the plaintiff a legal duty.”); West v. SMG , 318 S.W.3d 430 , 442–43 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (holding that trial court did not abuse its discretion by granting SMG’s motion for summary judgment because concertgoer failed to bring forth sufficient evidence on the element of duty, a necessary element of her negligence and gross negligence claims).

2013Apartment Cmtys., Inc. , 250 S.W.3d 191, 195 (Tex. App.—Dallas 2008, no pet.) (holding that there was no evidence that Mid-America retained physical possession of the air conditioner or that apartment dweller used it in common with others); see also Strunk , 225 S.W.3d at 99 . [6] Because no evidence exists that Appellees fall within either of the two exceptions pleaded by Appellants to the general no-duty rule, the trial court properly granted Appellees’ no-evidence motion for summary judgment on Appellants’ claims for premises liability.

2013See Khan , 138 S.W.3d at 298 (holding that trial court properly granted summary judgment on premises liability claim); Daitch , 250 S.W.3d at 195 (same); Strunk , 225 S.W.3d at 99 (same).

2025However, under the necessary-use exception to this general no-duty rule, a landowner has a “duty to make its premises safe when, despite an awareness of the risks, it is necessary that the invitee use the dangerous premises and the landowner should have anticipated that the invitee is unable to take measures to avoid the risk.” Id. at 208 (citing Parker v. Highland Park, Inc., 565 S.W.2d 512 , 520–21 (Tex. 1978)).

2018Nevertheless, subsequent supreme court decisions “repeatedly restated and applied the general no-duty rule in the landowner-invitee context, without overruling the decision in Parker.” Id.

2025See Austin, 465 S.W.3d at 208 ; Parker, 565 S.W.2d at 515 .

2025However, under the necessary-use exception to this general no-duty rule, a landowner has a “duty to make its premises safe when, despite an awareness of the risks, it is necessary that the invitee use the dangerous premises and the landowner should have anticipated that the invitee is unable to take measures to avoid the risk.” Id. at 208 (citing Parker v. Highland Park, Inc., 565 S.W.2d 512 , 520–21 (Tex. 1978)).

2024Posse, 926 S.W.2d at 285 ; City of Irving v. Seppy, 301 S.W.3d 435, 446 (Tex. App.—Dallas 2009, no pet.) (providing that the three exceptions are: (1) the lessor’s negligent repairs, (2) concealed defects of which the lessor was aware, and (3) a defect which remained under the lessor’s control); Kukis v. Newman, 123 S.W.3d 636, 639 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (recognizing the three exceptions to the general no-duty rule); see also RESTATEMENT (SECOND) OF TORTS §§ 357 (regarding negligent repairs), 358 (regarding concealed defects); 360 (regarding portion of premises remainin

2024Posse, 926 S.W.2d at 285 ; City of Irving v. Seppy, 301 S.W.3d 435, 446 (Tex. App.—Dallas 2009, no pet.) (providing that the three exceptions are: (1) the lessor’s negligent repairs, (2) concealed defects of which the lessor was aware, and (3) a defect which remained under the lessor’s control); Kukis v. Newman, 123 S.W.3d 636, 639 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (recognizing the three exceptions to the general no-duty rule); see also RESTATEMENT (SECOND) OF TORTS §§ 357 (regarding negligent repairs), 358 (regarding concealed defects); 360 (regarding portion of premises remainin

2023See Hirabayashi, 977 S.W.2d at 707 (analyzing the four recognized exceptions to the no-duty rule); see also Elephant Ins., 644 S.W.3d at 145 (balancing factors to determine the existence of a duty).

2015See, e.g., Escoto, 288 S.W.3d at 412 ; Goss, 262 S.W.3d at 794 ; Moritz, 257 S.W.3d at 216 ; Islas, 228 S.W.3d at 651 ; Khan, 138 S.W.3d at 295 .

1997Id.; Butcher v. Scott, 906 S.W.2d 14, 15 (Tex.1995).

1996See, e.g., Exxon, 867 S.W.2d at 21 (lessor who retains control over the security and safety of the premises owes a duty to a tenant’s employee to use ordinary care to protect the employee if the lessor knows or has reason to know of an unreasonable and foreseeable risk of harm from the criminal acts of third parties); Nixon, 690 S.W.2d at 549 (apartment management owed a duty under an ordinance to a minor raped in vacant apartment to protect against such foreseeable criminal acts).

1996See, e.g., Exxon, 867 S.W.2d at 21 (lessor who retains control over the security and safety of the premises owes a duty to a tenant’s employee to use ordinary care to protect the employee if the lessor knows or has reason to know of an unreasonable and foreseeable risk of harm from the criminal acts of third parties); Nixon, 690 S.W.2d at 549 (apartment management owed a duty under an ordinance to a minor raped in vacant apartment to protect against such foreseeable criminal acts).