premises liability claim in Texas

2022Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 514 (Tex. 2008) (per curiam) (rejecting a premises liability claim because “there [was] no evidence of the [defendant’s] actual knowledge that the [condition] presented an unreasonable risk of harm”); Brinson Ford, 228 S.W.3d at 162 (requiring the premises owner’s knowledge “of a dangerous condition on the premises that presented an unreasonable risk of harm”); CMH Homes, 15 S.W.3d at 101 .

2014As noted, in a premises liability claim, the plaintiff must show that the owner or occupier of land breached its duty “to exercise reasonable care to protect against danger from a condition on the land that creates an unreasonable risk of harm of which the owner or occupier knew or by the exercise of reasonable care would discover.” Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010) (quoting CMH Homes, 15 S.W.3d at 101 ).

2025The claim is one of negligence rather than premises liability if the plaintiff was “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 . 5 In their motion for summary judgment, Appellees argued that Sanford had “no evidence that he was injured as a result of ongoing activity.” Because Appellees specifically challenged an element necessary to distinguish Sanford’s negligence claim from a premises liability claim, it is sufficient under Rule 166a(i).

2021For an invitee to prevail on a premises liability claim, the claimant must prove (1) the owner or operator of the premises had “actual or constructive knowledge of some condition on the premises”; (2) “the condition posed an unreasonable risk of harm”; (3) “the owner/operator did not exercise reasonable care to reduce or eliminate the risk”; and (4) “the owner/operator’s failure to use such care proximately caused the plaintiff’s injuries.” Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).

2025Motel 6 G.P. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) (per curiam).

2000Actual or constructive knowledge of a dangerous condition by an owner or operator is required for a premises liability claim, “whether [the claim is] predicated upon negligent maintenance, a failure to warn, or the absence of safety devices.” Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex.1996).

2023See Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999) (per curiam) (“As a rule, to prevail on a premises liability claim a plaintiff must prove that the defendant possessed—that is, owned, occupied, or controlled—the premises where injury occurred”; however, “a party who does not own, occupy, or control premises may nevertheless owe a duty of due care if it undertakes to make the premises safe for 2 The respondent in these original proceedings is the Honorable Luis Singleterry.

2023“To prevail on a premises-liability claim, ‘a plaintiff must prove that the defendant possessed–that is, owned, occupied, or controlled–the premises where [the] injury occurred.’” Holland v. Memorial Hermann Health Sys., 570 S.W.3d 887, 897 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (quoting Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999)).

2013CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983) (listing essential elements of a premises liability claim when, for example, the plaintiff is an invitee)).

2001In Olivo , we rendered judgment when a broad-form negligence question was submitted without appropriate instructions on the premises liability factors we identified in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex.1983).

2026The Texas Supreme Court has highlighted the distinction between a negligent activity and a premises-liability claim as follows: In a negligent-activity case, a property owner or occupier must “do what a person of ordinary prudence in the same or similar circumstances would have . . . done,” whereas a property owner or occupier in a premises[-]liability case must “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about.” 972 S.W.2d at 753 . 4 17 U

2024See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017) (elements of a premises liability claim include causation); 14 Colonial Sav.

2013In LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006), the supreme court addressed whether a no-evidence summary judgment was proper on a premises-liability claim involving a pedestrian struck by a car in a parking lot.

2013To establish a premises liability claim, Wilson must show that (1) Parkdale had “actual or constructive knowledge of some condition on the premises,” (2) “the condition posed an unreasonable risk of harm,” (3) Parkdale “did not exercise reasonable care to reduce or eliminate the unreasonable risk of harm,” and (4) Parkdale’s “failure to use reasonable care to reduce or eliminate the unreasonable risk of harm proximately caused [Wilson’s] injuries.” LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).

2026The Texas Supreme Court has highlighted the distinction between a negligent activity and a premises-liability claim as follows: In a negligent-activity case, a property owner or occupier must “do what a person of ordinary prudence in the same or similar circumstances would have . . . done,” whereas a property owner or occupier in a premises[-]liability case must “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about.” 972 S.W.2d at 753 . 4 17 U

2026The Texas Supreme Court has highlighted the distinction between a negligent activity and a premises-liability claim as follows: In a negligent-activity case, a property owner or occupier must “do what a person of ordinary prudence in the same or similar circumstances would have . . . done,” whereas a property owner or occupier in a premises[-]liability case must “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about.” 972 S.W.2d at 753 . 4 17 U

2023“If no duty exists, then no liability for a premises liability claim can arise.” Id. (quoting QuikTrip Corp. v. Goodwin, 449 S.W.3d 665, 670 (Tex. App.—Fort Worth 2014, pet. denied)).

2019And even assuming under these facts that Norman could bring a claim for general negligence, the Association in its motion for summary judgment challenged the existence of a legal duty owed to him regarding the downed tree and maintenance of trail safety regardless of whether the duty arose under a premises liability theory based on Norman’s status at the time of the injury or a general negligence theory balancing test.4 See Kalinchuk, 2016 WL 4376628 , at *3–4 (explaining whether the plaintiff’s claim is a claim for negligence as he argued or a premises liability claim as the defendant contend

2024Austin v. Kroger Tex., L.P., 465 S.W.3d 193 , 202–03 (Tex. 2015) (noting that, generally, premises liability duties owed by an employer to an employee are the same as those owed by a landowner to an invitee).8 To prevail on a premises liability claim against a property- 7 Pro-Craft periodically references the open-and-obvious doctrine, arguing that the Heirs were required to show that the danger was not open or obvious.

2022The Texas Supreme Court addressed the necessary-use exception in Austin I when it addressed an employer’s duty to an injured employee who asserts a premises liability claim. 465 S.W.3d at 203–04, 206.

2017See, e.g., Cty. of Cameron, 80 S.W.3d at 556 (recognizing plaintiff in premises liability suit must establish defendant possessed premises before duty will arise); Wilson, 8 S.W.3d at 635 (recognizing plaintiff in premises liability case must prove that defendant possessed—that is, owned, occupied, or controlled— premises where injury occurred); Strunk, 225 S.W.3d at 100 (same); see also Hyde, 337 S.W.3d at 436–37 (holding property owner owed no duty when no injury occurred on property owned, occupied, or controlled by him; injury had occurred on nearby street); Alarcon, 2004 WL 1453465 , at *

2012However, the only evidence they identify to support this assertion is that “[t]he sink fell off the wall when Catherine leaned on it.” A condition poses an unreasonable risk of harm for a premises liability claim when there is a “sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.” Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002) (quoting Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 17 752, 754 (Tex. 1970)).

2023Theories of Recovery In Occidental Chemical Corporation v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016), the Texas Supreme Court wrote that: [A] person injured on another’s property may have either a negligence claim or a premises-liability claim against the property owner.

2023Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016) (noting that depending on the circumstances, a person injured on another’s property may have either a negligence claim or a premises-liability claim).

2010Id. at 857-58 (Jefferson, C.J., concurring in part, and dissenting in part) (pointing to Rubio’s claims that the home failed to protect her by failing to implement safety precautions and establish appropriate corporate safety, training, and staffing policies); id. at 861-66 (O’Neill, J., dissenting) (construing Rubio’s claim that the facility failed to use ordinary care to protect her from a known danger to be a premises liability claim).

2010Id. at 857-58 (Jefferson, C.J., concurring in part, and dissenting in part) (pointing to Rubio’s claims that the home failed to protect her by failing to implement safety precautions and establish appropriate corporate safety, training, and staffing policies); id. at 861-66 (O’Neill, J., dissenting) (construing Rubio’s claim that the facility failed to use ordinary care to protect her from a known danger to be a premises liability claim).

2017Co. v. Old, 946 S.W.2d 52 , 53–54 (Tex. 1997).2 Premises-liability duties “generally run[] with the ownership or control of the 2 See also Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999) (per curiam) (“As a rule, to prevail on a premises liability claim a plaintiff must prove that the defendant possessed—that is, owned, occupied, or controlled—the premises where injury occurred.”) (citing City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986)). 2 property” and do not apply to a contractor who does not “own or control the premises at the time of [the] accident.” Occidental

2010Page, 701 S.W.2d at 835 ; see Wilson v. Tex. Parks and Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999) (“As a rule, to prevail on a premises liability claim a plaintiff must prove that the defendant possessed—that is, owned, occupied, or controlled—the premises where the injury occurred.”).

2025“To prevail on a premises liability claim against a property owner, an injured invitee must establish four elements: (1) the property owner had actual or constructive knowledge of the condition causing the injury; (2) the condition posed an unreasonable risk of harm; (3) the property owner failed to take reasonable care to reduce or eliminate the risk; and (4) the property owner’s failure to use reasonable care to reduce or eliminate the risk was the proximate cause of injuries to the invitee.” Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex. 2014).

2021Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014) (citing TXI Operations, L.P. v. Perry, 278 S.W.3d 763 , 764–65 (Tex. 2009)).2 To prevail on a premises liability claim against a property owner, an injured invitee must establish that (1) a premises condition created an unreasonable risk of harm to the invitee; (2) the owner knew or reasonably should have known of the condition; (3) the owner failed to exercise ordinary care to protect the invitee from the danger; and (4) the owner’s failure was a proximate cause of injury to the invitee.

2018E.g., Olivo, 952 S.W.2d at 526–27 (holding that a slip-and-fall plaintiff who alleged injury resulting from drill pipe thread protectors that had been left on the ground, and not as a contemporaneous result of someone’s negligence, had brought a premises defect case); Keetch, 845 S.W.2d at 264 (holding that although a slip-and-fall plaintiff alleged injury as a result of grocery store plant spraying, no ongoing activity was occurring when the plaintiff was injured and the claim was properly submitted as premises liability); Warner, 845 S.W.2d at 259 (holding that a slip-and-fall plaintiff alle

2017E.g., Olivo, 952 S.W.2d at 526-27 (holding that a slip-and-fall plaintiff who alleged injury resulting from drill pipe thread protectors that had been left on the ground, and not as a contemporaneous result of someone’s negligence, had brought a premises defect case); Keetch, 845 S.W.2d at 264 (holding that although a slip-and-fall plaintiff alleged injury as a result of grocery store plant spraying, no ongoing activity was occurring when the plaintiff was injured and the claim was properly submitted as premises liability); Warner, 845 S.W.2d at 259 (holding that a slip-and-fall plaintiff alle

2022To prevail on a premises liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner of the premises did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998), whereas under the common law doctrine of negligence, a plaintiff must prove (1) a legal duty owed by one person 5 to another; (

2019Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 389 (Tex. 2016). 2 To prevail on a premises-liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998), whereas under the common law doctrine of negligence, a plaintiff must pr

2019Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 389 (Tex. 2016). 2 To prevail on a premises-liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998), whereas under the common law doctrine of negligence, a plaintiff must pr

2017Thus, premises-liability principles “apply to a property owner who creates a dangerous condition on its property,” and the claim of a person injured by the condition “remains a premises-liability claim as to the owner- creator, regardless of how the injured party chooses to plead it.” Jenkins, 478 14 S.W.3d at 648; see Sampson, 500 S.W.3d at 386 (“Creative pleading does not change the nature of a claim.”).

2013Justice, 137 S.W.3d 268, 276 (Tex. App.– Houston [1st Dist.] 2004, no pet.); accord State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996) (specifying the elements for a premises liability claim asserted by a licensee).

2013Justice, 137 S.W.3d 268, 276 (Tex. App.–Houston [1st Dist.] 2004, no pet.); accord State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996) (specifying the elements for a premises liability claim asserted by a licensee).

2025This “time-notice rule” applies to constructive-knowledge aspects of a premises liability claim and requires “proof of how long the hazard was there before liability can be imposed on the premises owner for failing to discover and rectify, or warn of, the dangerous condition.” Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002).

2011Premises Liability 1 Maldonado pled that Southwestern failed to warn him of the unsafe condition created by the boxes on the trailers, and Southwestern moved for a no-evidence summary judgment because Maldonado presented “no evidence of actual or constructive knowledge.” To overcome a no- evidence summary judgment on a premises liability claim, a plaintiff must present legally sufficient evidence that “the premises owner had actual or constructive knowledge of a dangerous condition on the premises.” See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 813 (Tex. 2002); King Ranch, 118 S.W.3d at 7

2019Hall v. Sonic Drive–In of Angleton, Inc., 177 S.W.3d 636, 644 (Tex. App.–Houston [1st Dist.] 2005, pet. denied).

2015Sears,, Roebuck & Co. v. Robinson, 154 Tex. 336, 340 , 280 S.W.2d 238, 240 (1955); see Leal v. McDonald’s Corp., No. 03-05-00500-CV, 2009 WL 2410853 , at *4 (Tex.App.-Austin Aug. 5, 2009, no pet.) (mem; op.). (“Employers owe their employees the same duty of care that premises owners owe invitees.” (citing Allen v. Qonnolly, 158 S.W.3d 61, 65-66 (Tex.App.-Houston [14th DistJ 2005, no pet.))); Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 644 (Tex.App.-Houston [1st DistJ 2005, pet. denied) (applying elements of a premises liability claim to a nonsub-scriber case). *15 In the employme

2021See Warner, 845 S.W.2d at 259 (holding that when injury alleged resulted from condition of premises, injured party alleged only premises-liability claim); see also Shaw v. Wells Fargo Bank, No. 02-20-00011-CV, 2020 WL 5241188 , at *2 n.1, *3 (Tex. App.—Fort Worth Sept. 3, 2020, no pet.) (mem. op.) (affirming summary judgment where defendant moved for no-evidence summary judgment only on claim for premises liability, even though plaintiff had pleaded “cause of action for premises liability, 23 negligence, and/or negligence per se,” because plaintiff had alleged that “a premises condition caused

2018E.g., Olivo, 952 S.W.2d at 526–27 (holding that a slip-and-fall plaintiff who alleged injury resulting from drill pipe thread protectors that had been left on the ground, and not as a contemporaneous result of someone’s negligence, had brought a premises defect case); Keetch, 845 S.W.2d at 264 (holding that although a slip-and-fall plaintiff alleged injury as a result of grocery store plant spraying, no ongoing activity was occurring when the plaintiff was injured and the claim was properly submitted as premises liability); Warner, 845 S.W.2d at 259 (holding that a slip-and-fall plaintiff alle

2017See, e.g., Cty. of Cameron, 80 S.W.3d at 556 (recognizing plaintiff in premises liability suit must establish defendant possessed premises before duty will arise); Wilson, 8 S.W.3d at 635 (recognizing plaintiff in premises liability case must prove that defendant possessed—that is, owned, occupied, or controlled— premises where injury occurred); Strunk, 225 S.W.3d at 100 (same); see also Hyde, 337 S.W.3d at 436–37 (holding property owner owed no duty when no injury occurred on property owned, occupied, or controlled by him; injury had occurred on nearby street); Alarcon, 2004 WL 1453465 , at *

2011Thus, a claim of premises liability presumes that injury occurred on property owned by the defendant. “[T]o prevail on a premises liability claim a plaintiff must prove that the defendant possessed— that is, owned, occupied, or controlled — the premises where injury occurred.” Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex.1999) (per curiam) (emphasis added); Strunk, 225 S.W.3d at 98 (before duty can be imposed, plaintiff must prove injury occurred on premises owned or occupied by defendant).

2023Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

2010In the case of an invitee, such as West, a premises liability inquiry focuses on whether the defendant proximately caused the plaintiffs injuries “by failing to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition that it knew about or should have known about.” Id.

2023Code § 101.022. 19 Id. § 101.060. 7 For an ordinary premises-liability claim, the governmental unit owes the duty that a private person would owe to a licensee. 20 The duty owed is the duty to warn the licensee of a dangerous condition or to make the condition reasonably safe, but only when the owner is aware of the dangerous condition and the licensee is not. 21 When a plaintiff alleges a special defect, in contrast, the government’s duty is expanded to the typical duty a private landowner owes an invitee. 22 Thus, for a special defect, the duty is to warn of an unreasonable risk of harm that

2023Code § 101.022. 19 Id. § 101.060. 7 For an ordinary premises-liability claim, the governmental unit owes the duty that a private person would owe to a licensee. 20 The duty owed is the duty to warn the licensee of a dangerous condition or to make the condition reasonably safe, but only when the owner is aware of the dangerous condition and the licensee is not. 21 When a plaintiff alleges a special defect, in contrast, the government’s duty is expanded to the typical duty a private landowner owes an invitee. 22 Thus, for a special defect, the duty is to warn of an unreasonable risk of harm that

2021In Shumake, the Texas Supreme Court considered the effect of the Recreational Use Statute in a premises-liability claim involving the death of the Shumakes’ nine- year-old daughter, who had drowned while swimming and tubing in the Blanco River. 199 S.W.3d at 281 .

2019Instead, in determining whether a plaintiff has a valid premises liability case, courts generally consider whether the premises owner has previously received reports of similar incidents occurring on the owner’s property in making this determination, and whether those incidents occurred close in time to the plaintiff’s injuries.10 See, e.g., State v. Shumake, 199 S.W.3d 279, 281 (Tex. 2006) (evidence that defendant had received three reports of similar incidents of near-drownings on its premises supported the plaintiff’s premises liability claim); see also City of El Paso v. Collins, 483 S.W.3

2019In Fair, the Texas Supreme Court concluded “naturally occurring ice that accumulates without the assistance or involvement of unnatural contact is not an unreasonably dangerous condition sufficient to support a premises liability claim.” Id. at 414 .

2015The Texas Supreme Court expanded on this principle in Scott and White Memorial Hospital v. Fair, 310 S.W.3d 411 (Tex. 2010), holding that "naturally occurring ice that accumulates without the assistance or involvement of unnatural 9 contact is not an unreasonably dangerous condition sufficient to support a premises liability claim." /d. at 414.

2002Reliable Consultants, Inc., 25 S.W.3d at 342 (citing Seideneck, 451 S.W.2d at 754 ); see also State Bar of Texas, Texas Pattern Jury Charges-Malpractice, Premises, & Products PJC 66.3 (2000) (The pattern charge for a premises-liability claim specifically asks the jury "if the condition posed an unreasonable risk of harm.").

2002Reliable Consultants, Inc., 25 S.W.3d at 342 (citing Seideneck, 451 S.W.2d at 754 ); see also State Bar of Texas, Texas Pattern Jury Charges-Malpractice, Premises, & Products PJC 66.3 (2000) (The pattern charge for a premises-liability claim specifically asks the jury “if the condition posed an unreasonable risk of harm.”).