negligent activity claim in Texas

2024A. Negligent activity To recover on a negligent activity claim, a plaintiff must show she was “injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity.” Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).

2022Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997) (plaintiff who fell on pipe thread protectors left lying on the ground involved a premises defect, not a negligent activity); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (plaintiff slipped on floor made slippery by plant spraying but since plaintiff was not injured by activity of spraying itself, but by condition resulting from spraying, there was no basis for a negligent activity claim).

2015See, e.g., to employees for such conditions directly disincentivizes State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) employers from hiring employees to remedy such conditions. (distinguishing a negligent-activity claim, which “result[s] We thus decline to recognize the new exception that Austin from a contemporaneous activity,” from a premises-defect proposes. claim, which “is based on the property itself being unsafe”); Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex.1992) (holding that trial court did not err in submitting only premises-liability claim when injury arose from pool of IV. wate

2015CODE § 406.002 (providing that “an employer may elect to obtain workers' compensation insurance coverage” and thus be “subject to” the Texas Workers' Compensation Act). 3 See, e.g., State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) ( “A negligent activity claim requires that the claimant's injury result from a contemporaneous activity itself rather than from a condition created on the premises by the activity.”). 4 See, e.g., Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex.1975) (“It is well established that an employer has certain nondelegable and continuous duties to his employees,” includ

2024See Timberwalk Apartments, 972 S.W.2d at 753 (stating that claimant did not allege she was injured “by or as a contemporaneous result of any activity of defendants” as required to state a negligent activity claim).

2022See Timberwalk Apartments, 972 S.W.2d at 753 (stating that claimant did not allege she was injured “by or as a contemporaneous result of any activity of defendants” so required to state a negligent-activity claim).

2022Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997) (plaintiff who fell on pipe thread protectors left lying on the ground involved a premises defect, not a negligent activity); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (plaintiff slipped on floor made slippery by plant spraying but since plaintiff was not injured by activity of spraying itself, but by condition resulting from spraying, there was no basis for a negligent activity claim).

2022Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997) (plaintiff who fell on pipe thread protectors left lying on the ground involved a premises defect, not a negligent activity); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (plaintiff slipped on floor made slippery by plant spraying but since plaintiff was not injured by activity of spraying itself, but by condition resulting from spraying, there was no basis for a negligent activity claim).

2017Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993) (holding that defendant invited error when it “requested the very issues that it now seeks to avoid”); see Del Lago, 307 S.W.3d at 776 (“The error in not allowing Smith to pursue a separate negligent-activity claim, if any, occurred at Del Lago’s behest.”).

2015Because the failure to provide the Spill Magic system is nonfeasance, and not contemporaneous negligent activity, it could not give rise to a negligent-activity claim. 22 See Del Lago, 307 S.W.3d at 776 (distinguishing between allegations of “nonfeasance,” or the failure to act, and allegations of misfeasance, or improper actions).

2022See id. at 527 ; Sampson, 500 S.W.3d at 388 ; City of Houston v. Ayala, 628 S.W.3d 615 , 625- 26 (Tex. App.—Houston [14th Dist.] 2021, no pet.).

2022See Sampson, 500 S.W.3d at 388 ; Halstead, 2022 WL 678277 , at *4; City of Houston v. Ayala, 628 S.W.3d 615 , 625-26 (Tex. App.— Houston [14th Dist.] 2021, no pet.).

2006See Sibai v. Wal-Mart, Stores, Inc., 986 S.W.2d 702, 707 (Tex.App.-Dallas 1999, no pet.) (holding a customer could maintain a “negligent activity” claim against Sam’s Wholesale Club for injuries she sustained when she was accidentally struck in the head by cashier at adjacent counter who was removing items from shopping cart), Because Estrada has properly alleged a “negligent activity” claim against the City, we hold Estrada has pleaded sufficient facts to establish a waiver of the City’s immunity under the TTCA.

2006See Sibai v. Wal-Mart , Stores , Inc. , 986 S.W.2d 702, 707 (Tex. App.--Dallas 1999, no pet.) (holding a customer could maintain a "negligent activity" claim against Sam's Wholesale Club for injuries she sustained when she was accidently struck in the head by cashier at adjacent counter who was removing items from shopping cart).

2010Keetch v. Kroger Co. , 845 S.W.2d 262, 264 (Tex. 1992); Kroger v. Persley , 261 S.W.3d 316, 320 (Tex. App.--Houston [1st Dist.] 2008, no pet.); Lucas v. Titus County Hosp.

2010Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Kroger v. Persley, 261 S.W.3d 316, 320 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Lucas v. Titus County Hosp.

2012Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex.1998) (per curiam); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985). 2 However, when the general contractor retains some *416 control over the independent contractor’s work, it must exercise that control with reasonable care.

2003Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992) (premise defect); Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985) (negligent activity).

2023See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463 , 470–73 (Tex. 2017) (examining the differences between a negligent activity claim and a premises liability claim).

2022See e.g., United Scaffolding, Inc., 537 S.W.3d at 472 (Employee’s alleged injury arose from premise defect on scaffold, as required for premises liability theory of recovery, despite contention that injury arose from contractor’s negligent activity of improperly assembling, erecting, or securing scaffolding; employee alleged he was injured when he fell through hole in scaffold and employee never alleged that contemporaneous, ongoing activity caused injury).

2018The elements of a negligence cause of action consist of the “existence of a legal duty, a breach of that duty, and damages proximately caused by the breach.” 15 Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015) (internal quotations omitted).

2018The elements of a negligence cause of action consist of the “existence of a legal duty, a breach of that duty, and damages proximately caused by the breach.” Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015) (internal quotations omitted).

2017Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993) (holding that defendant invited error when it “requested the very issues that it now seeks to avoid”); see Del Lago, 307 S.W.3d at 776 (“The error in not allowing Smith to pursue a separate negligent-activity claim, if any, occurred at Del Lago’s behest.”).

2017Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993) (holding that defendant invited error when it “requested the very issues that it now seeks to avoid”); see Del Lago, 307 S.W.3d at 776 (“The error in not allowing Smith to pursue a separate negligent-activity claim, if any, occurred at Del Lago’s behest.”).

2015CODE § 406.002 (providing that “an employer may elect to obtain workers' compensation insurance coverage” and thus be “subject to” the Texas Workers' Compensation Act). 3 See, e.g., State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) ( “A negligent activity claim requires that the claimant's injury result from a contemporaneous activity itself rather than from a condition created on the premises by the activity.”). 4 See, e.g., Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex.1975) (“It is well established that an employer has certain nondelegable and continuous duties to his employees,” includ

2015See, e.g., Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex.1975) (“It is well established that an employer has certain non-delegable and continuous duties to his employees,” including "the duty to furnish reasonably safe instrumentalities with which employees are to work.”). 6 .

2009As BSI points out, however, adroit phrasing of the pleadings to encompass design defects, per se negligence, or any other theory of negligence does not affect application of premises liability law. (footnote: 4) McDaniel v. Cont’l Apartments Joint Venture , 887 S.W.2d 167, 171 (Tex. App.—Dallas 1994, writ denied).

2009As BSI points out, however, adroit phrasing of the pleadings to encompass design defects, per se negligence, or any other theory of negligence does not affect application of premises liability law.4 McDaniel v. Cont’l Apartments Joint Venture, 887 S.W.2d 167, 171 (Tex. App.—Dallas 1994, writ denied).

2019See id.

2010Id.

2015Without even citing the cases on which Gattis relies to support its view, the Supreme Re: No. 03-14-00080-CV July 13, 2015 Page 3 Court expressly reserved “whether a single injury could give rise to both a premises- liability claim and a negligent activity claim if both the condition of the premises and the contemporary activities of the premises owner proximately cause the injury.” 2015 WL 3641066 , at *15 n.22.

2015Without even citing the cases on which Gattis relies to support its view, the Supreme Re: No. 03-14-00080-CV July 13, 2015 Page 3 Court expressly reserved “whether a single injury could give rise to both a premises- liability claim and a negligent activity claim if both the condition of the premises and the contemporary activities of the premises owner proximately cause the injury.” 2015 WL 3641066 , at *15 n.22.

2023Standard of Review “In a legal sufficiency challenge, we consider whether the evidence at trial would enable a reasonable and fair-minded fact finder to reach the verdict under review.” Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).

2023Standard of Review “In a legal sufficiency challenge, we consider whether the evidence at trial would enable a reasonable and fair-minded fact finder to reach the verdict under review.” Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).

2021See Sampson, 500 S.W.3d at 385 (citing Miranda, 133 S.W.3d at 233 ).

2019See id.

2018See, e.g., Taylor v. Louis, 349 S.W.3d 729, 738 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

2016Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016); see Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (op. on reh’g). 17 See Clayton W.

2015See id.

2015DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48, 56 (Tex.App.-Houston *375 [14th Dist.] 2014, pet. filed) ("Under Texas law, a person injured on another’s property has two potential causes of action against the owner of the property: (1) a negligence claim for negligent activity on the premises, and (2) a premises liability claim for an unreasonably dangerous condition on the premises.”); Elmgren, 431 S.W.3d at 669 (noting that negligent activity "is a general negligence cause of action”).

2015DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48, 56 (Tex.App.-Houston *375 [14th Dist.] 2014, pet. filed) ("Under Texas law, a person injured on another’s property has two potential causes of action against the owner of the property: (1) a negligence claim for negligent activity on the premises, and (2) a premises liability claim for an unreasonably dangerous condition on the premises.”); Elmgren, 431 S.W.3d at 669 (noting that negligent activity "is a general negligence cause of action”).