Premises Liability Manual cover copy by daw34175

VIEWS: 132 PAGES: 171

									                                               Texas Premises Liability Manual




Attorneys & Counselors l 901 Main Street l Suite 5200 l Dallas l 214.749.6000 l hsblaw.com
                                       PURPOSE

        The rise of premises liability and retail consumer litigation continues to be a
major concern for those who manage and/or own property. If you own or manage
property and serve the public, you need to be aware of potential liabilities on your
premises and have a good strategy in place for avoiding lawsuits. The Hermes Sargent
Bates, L.L.P. Premises Liability Manual was designed to help insurance personnel and
owners and managers of real property anticipate and address potential legal issues
affecting premises owners and the retail industry.

         Sections I–VII address the general issues arising in premises liability law,
elements of premises liability causes of action, and specifics of causes of action brought
by various types of claimants. Sections VIII–X discuss available defenses and
proportionate responsibility, and include Texas Pattern Jury Charges to provide examples
of how jury instructions and liability issues might be framed for a jury. Finally, Section
XI summarizes particular scenarios and types of claims that often arise in the premises
liability arena, and discusses interesting cases and the current status of Texas law for
specific types of premises liability claims.

         This manual is intended solely for use as a reference guide and is not intended to
be a replacement for the research necessary for thorough preparation in potential
litigation. It is our hope that this manual can assist readers by providing valuable
information regarding the current state of premises liability law in Texas.

        The Hermes Sargent Bates, L.L.P. Premises Liability Manual is the combined
effort of several lawyers at the firm, including but not limited to Dwayne J. Hermes, Gina
Viccinelli, Thad Spalding, Kristen B. Blanford, Kenneth C. Riney, and Christian Dennie.

                                                            March 2009
                              TEXAS PREMISES LIABILITY

                                    TABLE OF CONTENTS

I.   OVERVIEW OF PREMISES LIABILITY

     A.      Premises Liability v. Negligent Activity ..................................................I-1
             1.     Harder to Prove, Easier to Defend ................................................I-1
             2.     Defendant’s Activity Must Be Non-Ongoing ...............................I-2

     B.      Defendant’s Status as Possessor ...............................................................I-2
             1.    Defining “Possessor” ....................................................................I-2
             2.    Defining “Control”........................................................................I-3

     C.      Determination of Duty Owed....................................................................I-3
             1.    Dependent Upon Plaintiff’s Status as Invitee, Licensee, or
                   Trespasser .....................................................................................I-3
             2.    Plaintiff’s Duty To Establish Status..............................................I-4
             3.    Exceptions.....................................................................................I-4
                   a.      Attractive Nuisance...........................................................I-4
                   b.      Easements .........................................................................I-5
                   c.      Statute ...............................................................................I-5
                   d.      Third Party Criminal Conduct ..........................................I-5
                   e.      Recreational Use ...............................................................I-5
                   f.      Premises Abutting Public Property...................................I-5

     Flow Chart Determining Claimant Status and Duty Owed ..................................I-7
II.   CLAIMS BY INVITEES

A.    Elements of Claims ................................................................................. II-1
      1.    Plaintiff met the definition of invitee.......................................... II-1
      2.    Defendant was a possessor of the premises ................................ II-3
      3.    A condition on the premises posed an unreasonable
            risk of harm ................................................................................. II-3
      4.    Defendant knew or reasonably should have known of the
            Danger ......................................................................................... II-4
      5.    Defendant breached its duty of ordinary care to protect
            the plaintiff from danger by both failing to adequately warn
            Plaintiff of the condition and failing to make the condition
            reasonably safe............................................................................ II-4
            a.      Duty owed by general contractors .................................. II-5
            b.      Duty owed by easement owners ..................................... II-5
            c.      Duties owed in independent contractor cases ................. II-6
            d.      Duties owed in landlord/tenant cases.............................. II-7
            e.      Duty owed by governmental entities .............................. II-8
            f.      Duty owed in criminal conduct cases ............................. II-9
      6.    Defendant’s breach proximately caused Plaintiff’s injury........ II-10

B.    Statute of Limitations............................................................................ II-10

C.    Remedies Available .............................................................................. II-10
III.   CLAIMS BY LICENSEES

       A.   Elements of Claims ................................................................................ III-1
            1.    Plaintiff met the definition of licensee....................................... III-1
            2.    Defendant was an owner or possessor of the premises.............. III-2
            3.    A condition on the premises posed an unreasonable
                  risk of harm ................................................................................ III-4
            4.    Defendant had actual knowledge of the danger......................... III-4
            5.    Plaintiff did not have actual knowledge of the danger .............. III-5
            6.    Defendant breached its duty of ordinary care by both failing
                  to adequately warn Plaintiff of the condition and by failing
                  to make the condition reasonably safe. ...................................... III-5
                  a.      Duty Owed Under the “Firefighter’s Rule” ................... III-6
            7.    Defendant’s breach proximately caused Plaintiff’s injury......... III-6

       B.   Statute of Limitations............................................................................. III-7

       C.   Remedies Available ............................................................................... III-7
IV.   CLAIMS BY TRESPASSERS

      A.   Elements of Claims ................................................................................ IV-1
           1.    Plaintiff met the definition of trespasser.................................... IV-1
           2.    Defendant was an owner or possessor of the premises.............. IV-2
           3.    A condition on the premises posed an unreasonable
                 risk of harm ................................................................................ IV-3
           4.    Defendant breached its duty of care by acting willfully,
                 wantonly, or with gross negligence ........................................... IV-3
                 a.      Duty Owed to Tolerated Trespasser .............................. IV-4
                 b.      Duty Owed to Discovered Trespasser............................ IV-5
                 c.      Duty Owed to Trespasser with Emergency/Necessity... IV-5
                 d.      Duty Owed to Volunteer Rescuer .................................. IV-5
           5.    Defendant’s breach proximately caused Plaintiff’s injury......... IV-5

      B.   Statute of Limitations............................................................................. IV-6

      C.   Remedies Available ............................................................................... IV-6
V.   CLAIMS UNDER THE ATTRACTIVE-NUISANCE DOCTRINE

     A.   Elements of Claims ................................................................................. V-1
          1.    The child Plaintiff met the definition of trespasser..................... V-2
          2.    Defendant was an owner or possessor of the premises............... V-2
          3.    Defendant knew or should have known there was an
                artificial condition on the premises............................................. V-2
          4.    Defendant knew or should have known children were likely
                to trespass in the area around the artificial condition ................. V-3
          5.    Defendant knew or should have known or realized the
                artificial condition posed an unreasonable risk of death or
                serious bodily harm to trespassing children................................ V-4
          6.    Plaintiff, due to youth, did not discover the artificial
                condition, or realize the risk involved in meddling with it,
                or realize the risk involved in coming within the area made
                dangerous by the condition. ........................................................ V-4
          7.    The benefit to Defendant in maintaining the artificial
                condition and the burden of eliminating the danger were
                slight when compared with the risk to children. ......................... V-5
          8.    Defendant breached its duty of exercising reasonable care
                by failing to eliminate the danger or otherwise protect
                the children.................................................................................. V-6
          9.    Defendant’s breach proximately caused Plaintiff’s injury.......... V-6

     B.   Statute of Limitations.............................................................................. V-7

     C.   Remedies Available ................................................................................ V-7
VI.   CLAIMS UNDER THE RECREATIONAL USE STATUTE

      A.   Elements of Claims ................................................................................ VI-1
           1.    Defendant is the owner, lessee, or occupant of agricultural
                 land or other real property.......................................................... VI-2
           2.    Defendant permitted or invited Plaintiff to enter the
                 premises for the purpose of engaging in recreation ................... VI-2
                 a.       Permission or invitation to enter premises..................... VI-2
                 b.       Use of premises for recreational purposes ..................... VI-4
           3.    Plaintiff’s bodily or property injury occurred on
                 Defendant’s premises................................................................. VI-5
           4.    If a private landowner Defendant either: (a) Did
                 not charge Plaintiff for entry onto the premises;
                 (b) Charged Plaintiff for entry onto the premises
                 subject to statutory annual limits, or (c) Effected liability
                  insurance coverage on its agricultural land in amounts
                 greater than or equal to the RUS’s damage cap amounts .......... VI-5
           5.    A condition on the premises posed an unreasonable risk
                 of harm ....................................................................................... VI-6
           6.    Defendant breached its duty of care by acting willfully,
                 wantonly, or with gross negligence ........................................... VI-6
           7.    Defendant’s breach proximately caused Plaintiff’s injury......... VI-7

      B.   Statute of Limitations............................................................................. VI-7

      C.   Remedies Available ............................................................................... VI-8
VII.   CLAIMS UNDER THE TEXAS TORT CLAIMS ACT

       A.   Elements of Claims ...............................................................................VII-1
            1.    The defendant is a governmental unit and a
                  possessor of the premises..........................................................VII-2
                  a.      Emergency Service Organization Liability...................VII-2
            2.    A condition on the premises posed an unreasonable risk
                  of harm ......................................................................................VII-3
            3.    Whether the condition was a premise defect or a
                  special defect.............................................................................VII-3
            4.    Whether the defendant breached its duty of ordinary care by
                  both failing to adequately warn of the condition and by
                  failing to make the condition reasonably safe..........................VII- 3
                  a.      TTCA Premise Defect Claims ......................................VII-4
                  b.      TTCA Special Defect Claims .......................................VII-5
            5.    The defendant’s breach proximately caused the plaintiff’s
                  Injuries ......................................................................................VII-7
            6.    The defendant would be liable under Texas law if the
                  defendant were a private person ..............................................VII- 7
            7.    Proper notice was provided under the TTCA ...........................VII-7

       B.   Statute of Limitations............................................................................VII-8

       C.   Remedies Available ..............................................................................VII-8
            1.    Damages Cap Against State Government Defendant ...............VII-8
            2.    Damages Cap Against a Local Government Defendant ...........VII-9
            3.    Damages Cap Against a Municipality Defendant.....................VII-9
            4.    Damages Cap Against an Emergency Service
                  Organization Defendant ............................................................VII-9
            5.    Application of Damage Caps with Proportionate
                  Responsibility .........................................................................VII-10

       D.   Exceptions...........................................................................................VII-11
            1.     Recreational Use Statute .........................................................VII-11
            2.     Payment to Use Premises........................................................VII-11
            3.     Defective or Missing Traffic Control Devices........................VII-11
            4.     School and Junior College Districts........................................VII-12
            5.     Attractive Nuisance Doctrine..................................................VII-12
VIII. PREMISES LIABILITY DEFENSES

     A.   Defenses Available in All Premises Liability Claims......................... VIII-1
          1.    Defendant was Not a Possessor .............................................. VIII-1
                a.     Defendant was a Former Owner ................................. VIII-2

     B.   Specific Defenses Against Invitee Claims.......................................... VIII-3
          1.     Plaintiff was a Licensee .......................................................... VIII-3
          2.     Plaintiff was a Trespasser ....................................................... VIII-3
          3.     Plaintiff’s lease contractually excuses Defendant................... VIII-3
          4.     Plaintiff was injured by an independent contractor ................ VIII-4
          5.     Plaintiff was an independent contractor injured by
                 an open and obvious defect..................................................... VIII-4

     C.   Specific Defenses Against Licensee Claims....................................... VIII-5
          1.     Plaintiff was a Trespasser ....................................................... VIII-5
          2.     Plaintiff was Owed a Limited Duty Under the
                 “Firefighter’s Rule” ................................................................ VIII-5

     D.   Specific Defenses Against Trespasser Claims.................................... VIII-6

     E.   Specific Defenses Against Attractive-Nuisance Claims..................... VIII-6
          1.     Plaintiff was Over 16 Years of Age when Injured on
                 Agricultural Land Used for Recreational Purposes ................ VIII-6

     F.   Specific Defenses Against Recreational Use Claims.......................... VIII-6
          1.     Plaintiff Asserting Attractive Nuisance was Over 16
                 Years of Age ........................................................................... VIII-7

     G.   Specific Defenses Under the Texas Tort Claims Act ......................... VIII-7
          1.     Plaintiff’s claim is based upon the Attractive Nuisance
                 Doctrine................................................................................... VIII-7
          2.     Defendant is a school or junior college district ...................... VIII-7
          3.     Plaintiff’s traffic control device claim fails to justify
                 waiver of immunity................................................................. VIII-8
IX.   PROPORTIONATE RESPONSIBILITY

      A.   Contribution ........................................................................................... IX-1
           1.     Common Law Definition ........................................................... IX-1
           2.     The Source of Contribution Rights ............................................ IX-1
                  a.       No Common Law Right to Contribution ....................... IX-1
                  b.       Chapter 33...................................................................... IX-2
           3.     Recognizing and Asserting Contribution Rights ....................... IX-2
                  a.       Appropriate Targets ....................................................... IX-3
                  b.       Joint and Several Liability ............................................. IX-4
                  c.       Timely Assertion of the Right to Contribution .............. IX-5
                           i.          Contribution Between Defendants..................... IX-5
                           ii.         Contribution Against Non-Parties...................... IX-6
                           iii.        Statute of Repose ............................................... IX-7
           4.     Application................................................................................. IX-7
                  a.       Assertion of Contribution Rights Among
                           Defendants ..................................................................... IX-7
                  b.       Assertion of Contribution Rights Among
                           Defendants, with Settling Persons ................................. IX-8
                           i.          Application of Settlement Credit ....................... IX-9
                           ii.         Effect of Insolvent Co-Defendant.................... IX-12

      B.   Responsible Third Parties .................................................................... IX-13
           1.    Definition of “responsible third party” .................................... IX-13
           2.    Designation of a responsible third party .................................. IX-13
           3.    Timely joinder of a responsible third party.............................. IX-14
           4.    Effect of designating a responsible third party ........................ IX-14
           5.    Designating an unknown responsible third party..................... IX-15
X.   JURY QUESTIONS

     A.   General PJC Comments .......................................................................... X-1
          PJC 66.1 .................................................................................................. X-1

     B.   Preliminary Question of Right to Control in Independent
          Contractor Cases ..................................................................................... X-3
          PJC 66.3 .................................................................................................. X-3

     C.   Claims By Invitees.................................................................................. X-4
          PJC 66.4 .................................................................................................. X-4

     D.   Claims By Licensees............................................................................... X-6
          PJC 66.5 .................................................................................................. X-6
          PJC 66.8 .................................................................................................. X-8

     E.   Using Alternate Theories of Recovery: Claims By Invitees
          or Licensees .......................................................................................... X-10
          PJC 66.7 ................................................................................................ X-10

     F.   Claims By Trespassers.......................................................................... X-12
          PJC 66.9 ................................................................................................ X-12

     G.   Claims Under the Attractive Nuisance Doctrine .................................. X-14
          PJC 66.10 .............................................................................................. X-14

     H.   Jury Submission Under the Recreational Use Statute........................... X-17

     I.   Jury Submission Under the Texas Tort Claims Act.............................. X-18

     J.   Jury Submission with Proportionate Responsibility ............................. X-19
          PJC 66.2 ................................................................................................ X-19
          PJC 66.11 .............................................................................................. X-19
          PJC 66.12 .............................................................................................. X-21
          PJC 66.13 .............................................................................................. X-22

     K.   Claims Under CPRC Chapter 95 .......................................................... X-24
          PJC 66.14 .............................................................................................. X-24
XI.   SPECIFIC SCENARIOS AND INTERESTING CASES

      A.   Slip and Fall Cases................................................................................. XI-1
           1.     Dangerous Conditions Created by Self-Service Bins
                  and Displays............................................................................... XI-2
           2.     Actual Knowledge of High Risk of Dangerous Condition ........ XI-3
           3.     Constructive Knowledge and the Time-Notice Rule ................. XI-5
                  a.      Proximity to Condition .................................................. XI-5
                  b.      Constructive Knowledge Cases ..................................... XI-6

      B.   Security Cases ........................................................................................ XI-8
           1.     Duties Owed By a Hired Security Company ............................. XI-8
           2.     Owner Liability for Independent Contractor Security ............. XI-10

      C.   Sidewalk and Parking Lot Cases.......................................................... XI-12
           1.    Muddy Conditions ................................................................... XI-12
           2.    Icy Conditions.......................................................................... XI-13

      D.   Bed Bug Cases ..................................................................................... XI-15

      E.   No Duty Defense and Open and Obvious Defect Cases...................... XI-17

      F.   Dram Shop Cases................................................................................. XI-19
           1.    Applicable Statutes .................................................................. XI-20
           2.    Dram Shop Liability ................................................................ XI-22
           3.    Dram Shop Cases and Proportionate Responsibility ............... XI-25
                 a.     F.F.P. Operating Partners, L.P. v. Dueñez ................. XI-25
                 b.     Biaggi v. Patrizio Restaurant, Inc................................ XI-32
                 c.     Smith v. Sewell ............................................................. XI-33
           4.    Dram Shop Liability to Employees.......................................... XI-34
           5.    Dram Shop Safe Harbor Provision .......................................... XI-36
                 a.     20801, Inc. v. Parker.................................................... XI-36
           6.    Recommendations to Providers ............................................... XI-39
                              TEXAS PREMISES LIABILITY

                                    TABLE OF CONTENTS

I.   OVERVIEW OF PREMISES LIABILITY

     A.      Premises Liability v. Negligent Activity ..................................................I-1
             1.     Harder to Prove, Easier to Defend ................................................I-1
             2.     Defendant’s Activity Must Be Non-Ongoing ...............................I-2

     B.      Defendant’s Status as Possessor ...............................................................I-2
             1.    Defining “Possessor” ....................................................................I-2
             2.    Defining “Control”........................................................................I-3

     C.      Determination of Duty Owed....................................................................I-3
             1.    Dependent Upon Plaintiff’s Status as Invitee, Licensee, or
                   Trespasser .....................................................................................I-3
             2.    Plaintiff’s Duty To Establish Status..............................................I-4
             3.    Exceptions.....................................................................................I-4
                   a.      Attractive Nuisance...........................................................I-4
                   b.      Easements .........................................................................I-5
                   c.      Statute ...............................................................................I-5
                   d.      Third Party Criminal Conduct ..........................................I-5
                   e.      Recreational Use ...............................................................I-5
                   f.      Premises Abutting Public Property...................................I-5

     Flow Chart Determining Claimant Status and Duty Owed ..................................I-7
                   I.     OVERVIEW OF PREMISES LIABILITY

A.     Premises Liability vs. Negligent Activity

       Premises liability law covers situations in which an individual is injured due to a

hazard on property owned or maintained by someone else. The possible liability

situations that can arise on a property are endless and involve any nature of claim where

it is perceived that the property owner should have prevented the occurrence. The most

common premises liability cases involve slip and falls, dog attacks, food poisoning,

electrocution, chemical exposure, being trapped in a burning building, assaults, theft,

false imprisonment, bed bugs and dram shop liability. Basically, a premises liability

cause of action is a specific type of negligence action brought as the result of alleged

injuries caused by a condition of real property. Premises liability claims do not arise

from allegations of injury caused by a negligent activity on the real property.

       1.      Harder to Prove, Easier to Defend.           Premises liability claims are

negligence claims. As such, the elements of a premises liability claim arise from the

traditional duty, breach, damage and proximate cause elements of a general negligence

cause of action. However, because premises claims must arise from a condition of real

property and not from a negligent activity, their required elements have been further

delineated by the courts. The elements of a premises liability cause of action are:

       (1)     Actual or constructive knowledge of some condition on the
               premises by the owner/operator;

       (2)     That the condition posed an unreasonable risk of harm;

       (3)     That the owner/operator did not exercise reasonable care to reduce
               or eliminate the risk; and




                                            I-1
          (4)     That the owner/operator’s failure to use such care proximately
                  caused the plaintiff’s injuries. 1

These specific elements as well as additional requirements discussed below make

premises liability actions harder for plaintiffs to prove and easier for defendants to

defend.

          2.      Defendant’s Activity Must By Non-Ongoing.                            Texas courts have

acknowledged that nearly all artificial conditions of real property can be tied to a

negligent activity occurring on that property. 2 However, for a plaintiff’s cause of action

to lie in premises liability, the defendant’s activity must have occurred earlier in time

than the alleged injury and that activity must have ceased prior to the occurrence of the

injury. 3 In contrast, injuries caused by a defendant’s ongoing activity are more properly

characterized as negligent activity claims and are easier for plaintiffs to prove.

B.        Defendant’s Status as Possessor

          To risk liability on a premises liability claim, a Defendant must qualify as a

possessor of the premises, controlling the premises where the alleged injury occurred. 4

          1.      Defining “Possessor.”                 The Restatement (Second) of Torts defines a

premises liability “possessor” as any of the following:

          (a)     a person who is in occupation of the land with intent to control it,
                  or
1
  Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992), citing Corbin v. Safeway Stores, Inc., 648
S.W.2d 292, 296 (Tex. 1983)).
2
  Keetch, 845 S.W.2d at 264.
3
  See id. (finding no ongoing activity at the time of injury when a plaintiff slipped and fell at 7:30 p.m. after
an employee’s activity causing a slippery floor started and stopped prior to 7:00 p.m., and holding that the
plaintiff’s claim was therefore properly submitted as a premises liability claim and not a claim of negligent
activity).
4
  See Wilson v. Tex. Parks & Wildlife Dep’t., 8 S.W.3d 634, 635 (Tex. 1999) (finding an absence of
evidence that the state agency defendant controlled the river where the plaintiff drowned); Thornhill v.
Ronnie’s I-45 Truck Stop, Inc., 944 S.W.2d 780, 788 (Tex. App.—Beaumont 1997, writ dism’d) (defining
“possessor” as a defendant that exercised control over the subject premises); Cameron City v. Velazquez,
668 S.W.2d 776, 780 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.) (confirming that the plaintiff
bears the burden of proving that the defendant controlled the premises).


                                                      I-2
        (b)      a person who has been in occupation of the land with intent to
                 control it, if no other person has subsequently occupied it with
                 intent to control it, or

        (c)      a person who is entitled to immediate occupation of the land, if no
                 other person is in possession under clauses (a) and (b). 5

Although the Texas Supreme Court has stated that a defendant qualifies as a possessor if

it “owned, occupied, or controlled” the premises in question, 6 the issue of control

remains central. 7 A Defendant need not own title to the land in question; occupiers

entitled to exercise exclusive control over the premises, such as tenants and lessees or

general contractors, are under the same duty as owners to keep the premises in a safe

condition. 8

        2.       Defining “Control.” A defendant’s “control” is defined as “the power or

authority to manage, direct, superintend, restrict, regulate, govern, administer, or

oversee.” 9 Plaintiff can prove the element of control by providing sufficient evidence of

Defendant’s right to control, such as under the terms of a contract or lease, or by evidence

that Defendant exercised actual control of the premises with a proprietary state of mind or

to the extent that the Defendant had a duty to remedy alleged dangers on the premises.10

C.       Determination of Duty Owed



5
   RESTATEMENT (SECOND) OF TORTS, §328E (1965); Prestwood v. Taylor, 728 S.W.2d 455, 459-60 (Tex.
App. –Austin 1987, writ ref’d n.r.e).
6
  Thornhill, 944 S.W.2d at 788. See also County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002).
7
  Prestwood, 728 S.W.2d at 459 (finding that legal title alone is insufficient to prove the premises control
necessary for a premises liability judgment). Note: Although legal ownership is often insufficient by itself
to subject a defendant to premises liability, the terms “owner” and “possessor” are often used
interchangeably within this Premises Liability Manual.
8
  Hernandez v. Heldenfels, 374 S.W.2d 196, 198 (Tex. 1963) (defining “occupier”); Wal-Mart Stores v.
Alexander, 868 S.W.2d 322, 324 (Tex. 1993) (tenants/lessees); Clayton W. Williams, Jr., Inc. v. Olivo, 952
S.W.2d 523, 527 (Tex. 1997) (general contractors).
9
   Gunn v. Harris Methodist Affiliated Hosp., 887 S.W.2d 248, 252 (Tex. App.—Fort Worth 1994, writ
denied).
10
   Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004); Brown, 80 S.W.3d at 556.


                                                    I-3
        1.       Dependent Upon Plaintiff’s Status as Invitee, Licensee, or Trespasser.

Unlike many jurisdictions, Texas still maintains a legal distinction between a plaintiff’s

status as an invitee, licensee, or trespasser. It is the determination of this status that

controls the scope of a defendant’s duty owed in a premises liability case. 11 A plaintiff’s

status is that of invitee if the plaintiff enters onto the real property with the owner’s

express or implied knowledge and for the parties’ mutual benefit. 12 A plaintiff is a

licensee if he enters onto the real property with the owner’s express or implied

permission, but only for the plaintiff’s own convenience or for the business of someone

other than the owner. 13 (In Texas, a social guest is considered a licensee.) 14 A plaintiff is

considered a trespasser if he enters the real property solely for the plaintiff’s own

purposes or out of curiosity, without a lawful right or the consent of the owner.15

        2.       Plaintiff’s Duty To Establish Status. As part of a premises liability

claim, it is a plaintiff’s duty to prove his status as of the time of injury as invitee,

licensee, or trespasser.

        3.       Exceptions.      As stated above, the defendant’s duty is generally

determined by the plaintiff’s status at the time of the injury. In certain situations,

however, the plaintiff’s status as invitee, licensee, or trespasser is considered irrelevant or

has been specifically altered via statute.


11
   Western Invs., Inc. v. Urena, 16 S.W.3d 547, 550 (Tex. 2005) (“Premises liability is a special form of
negligence where the duty owed to the plaintiff depends upon the status of the plaintiff at the time the
incident occurred”).
12
   Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 536 (Tex. 1975); RESTATEMENT (SECOND) OF
TORTS, § 332 (1965).
13
   Texas-Louisiana Power Co. v. Webster, 91 S.W.2d 302, 306 (Tex. 1936); Smith v. Andrews, 832 S.W.2d
395, 397 (Tex. App.—Fort Worth 1992, writ denied); RESTATEMENT (SECOND) OF TORTS, § 330
(1965).
14
   Knorpp v. Hale, 981 S.W.2d 469, 472 (Tex. App.—Texarkana 1998, no pet.).
15
   Texas-Louisiana Power, 91 S.W.2d at 306; Williams v. Bill’s Custom Fit, Inc., 821 S.W.2d 432, 433
(Tex. App.—Waco 1991, no writ); RESTATEMENT (SECOND) OF TORTS, § 329 (1965).


                                                  I-4
                  a.     Attractive Nuisance. When a child enters onto a premises because

the premises is attractive to the child, the Attractive Nuisance Doctrine holds that a

premises owner owes that child the same duty owed to an invitee, even if the child is a

trespasser. 16 For a more detailed discussion of the Attractive Nuisance Doctrine, see

Sections V and VIII(E) herein.

                  b.     Easements. Regardless of a plaintiff’s status, the holder of an

easement to property owes a plaintiff entering that property the duty of ordinary care. 17

                  c.     Statute. If a state statute or city ordinance specifically creates an

owed duty intended to prevent injury to a protected class of persons, the invitee, licensee,

or trespasser status of a plaintiff existing within that class of persons is irrelevant. 18

                  d.     Third Party Criminal Conduct. On occasion, when a third party

criminal has abducted the plaintiff and taken the plaintiff onto the defendant’s premises,

the courts have ignored the issue of the plaintiff’s status. 19

                  e.     Recreational Use. Under the Recreational Use Statute set forth in

Texas Civil Practice and Remedies Code Chapter 75, a property owner owes persons who

enter onto real property for recreational purposes the same duty owed to trespassers. 20

For a more detailed discussion of the Recreational Use Statute, see Sections VI and

VIII(F) herein.

                  f.     Premises Abutting Public Property. When a defendant’s premises

abuts public property such as a public sidewalk, road or highway, the defendant owes a


16
   Texas Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997).
17
   Phillips Pipe Line Co. v. Razo, 409 S.W.2d 565, 571 (Tex. App.—Tyler 1966), rev’d on other grounds,
420 S.W.2d 691 (Tex. 1967).
18
   See Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 549 (Tex. 1985).
19
   See Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999); Nixon, 690 S.W.2d at 549-50.
20
   TEX. CIV. PRAC. & REM. CODE ANN § 75.002(c)(2) (Vernon Supp. 2008).


                                                 I-5
duty of reasonable care not to jeopardize the safety of persons located on the abutting

public property. 21 Such cases are submitted as negligence cases rather than premises

liability cases, and the plaintiff’s status as invitee, licensee, or trespasser is irrelevant. 22




21
     Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981).
22
     See Keetch, 845 S.W.2d at 264.


                                                    I-6
                          FLOW CHART DETERMINING CLAIMANT STATUS AND DUTY OWED

Is D a governmental unit?

No                                    Yes

                                      Is D a school or junior college district?

                                      No                          Yes
                                                                  Barred by Sovereign Immunity

                                      Does claim come under the Attractive Nuisance Doctrine?

                                      No                          Yes
                                                                  Barred by Sovereign Immunity

                                      Was injury caused by a premise defect or a special defect?

                                      Premise                     Special
                                                                  Invitee Duty Owed

                                      Was injury caused by a defective or missing traffic control device?

                                      No                                   Yes

Did P enter premises                                              Unreasonable installation delay after deciding to install?
with D permission and
for benefit of P and D?                                           No                         Yes
                                                                                             Invitee Duty Owed
No               Yes
                 Invitee Duty Owed                                Unreasonable delay to remedy after notice of defect/absence?

Did P enter premises                                              No                         Yes
with D permission but                                                                        Invitee Duty Owed
for P’s own benefit?
                                                                  Unreasonable delay to remedy after actual notice of
No               Yes                                              removal/destruction by a 3rd party?
                 Licensee Duty Owed
                                                                  No                                      Yes
Did P enter premises                                              Barred by Sovereign Immunity            Invitee Duty Owed
without D permission and
for P’s own benefit?
                                      Did P use the premises for recreation?
        Yes
        Trespasser Duty Owed          No                                   Yes
                                                                           Trespasser Duty Owed

                                      Did P pay to use premises?

                                      No                                   Yes
                                      Licensee Duty Owed

                                                                           Was payment for use of a toll highway/road/street?

                                                                           No                          Yes
                                                                           Invitee Duty Owed           Licensee Duty Owed


                                                           I-7
II.   CLAIMS BY INVITEES

A.    Elements of Claims ................................................................................. II-1
      1.    Plaintiff met the definition of invitee.......................................... II-1
      2.    Defendant was a possessor of the premises ................................ II-3
      3.    A condition on the premises posed an unreasonable
            risk of harm ................................................................................. II-3
      4.    Defendant knew or reasonably should have known of the
            Danger ......................................................................................... II-4
      5.    Defendant breached its duty of ordinary care to protect
            the plaintiff from danger by both failing to adequately warn
            Plaintiff of the condition and failing to make the condition
            reasonably safe............................................................................ II-4
            a.      Duty owed by general contractors .................................. II-5
            b.      Duty owed by easement owners ..................................... II-5
            c.      Duties owed in independent contractor cases ................. II-6
            d.      Duties owed in landlord/tenant cases.............................. II-7
            e.      Duty owed by governmental entities .............................. II-8
            f.      Duty owed in criminal conduct cases ............................. II-9
      6.    Defendant’s breach proximately caused Plaintiff’s injury........ II-10

B.    Statute of Limitations............................................................................ II-10

C.    Remedies Available .............................................................................. II-10
                                II.      CLAIMS BY INVITEES

A.      Elements of Claims

        The six required elements of a premises liability cause of action in claims brought

by invitees are:

        •        Plaintiff met the definition of invitee;

        •        Defendant was an owner or possessor of the premises;

        •        A condition on the premises posed an unreasonable risk of harm;

        •        Defendant knew or reasonably should have known of the danger;

        •        Defendant breached its duty of ordinary care to protect the plaintiff from
                 danger by both failing to adequately warn Plaintiff of the condition and
                 failing to make the condition reasonably safe; and

        •        Defendant’s breach proximately caused Plaintiff’s injury. 1

Each of these elements is discussed in greater detail below.

        1.       Plaintiff met the definition of invitee. Invitees come in many different

forms and are afforded the widest scope of protection. Invitees can be, among others,

patrons of business establishments open to the general public (including stores, banks,

restaurants, amusement parks, paid parking lots, hotels, etc.), 2 church members, 3 children

accompanying invitee parents, 4 employees, 5 volunteer rescuers entering premises in


1
  Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); State v. Williams, 940 S.W.2d 583, 584-
85 (Tex. 1996); Rosas v. Buddies Food Store, 518 S.W.2d 534, 536-37 (Tex. 1975).
2
  Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 454 (Tex. 1972). See also Motel 6 G.P., Inc. v. Lopez,
929 S.W.2d 1, 3, (Tex. 1996) (motel guest is invitee); Houston Nat’l Bank v. Adair, 207 S.W.2d 374, 376
(Tex. 1948) (bank customer is invitee); Carlisle v. J. Weingarten, Inc., 152 S.W.2d 1073, 1075 (Tex. 1941)
(store patron is invitee); Volcanic Gardens Management Co., Inc. v. Beck, 863 S.W.2d 780 (Tex. App.—El
Paso 1993, no writ) (amusement park visitor is invitee); El Rancho Restaurants, Inc. v. Garfield, 440
S.W.2d 873, 876 (Tex. App.—San Antonio 1969, writ ref’d n.r.e.) (restaurant patron is invitee); Parking,
Inc. v. Dalrymple, 375 S.W.2d 758, 762 (Tex. App.—San Antonio 1964, no writ) (person using paid
parking lot is invitee).
3
  See Cox v. Thee Evergreen Church, 836 S.W.2d 167, 169 (Tex. 1992) (allowing suit against church by
church member who slipped and fell outside church).
4
  Carlisle, 152 S.W.2d at 1076-1077.


                                                  II-1
response to a cry for help (as opposed to rescuers who enter premises without invitation

or who decide to enter prior to hearing cries for help), 6 mail carriers, 7 newspaper

deliverers, 8 garbage collectors, tenants and tenants’ guests if the landlord concealed

known defects and retained control over the injury-causing portion of the premises, 9

employees of independent contractors if the owner concealed pre-existing defects not

arising from the performance of the independent contractor’s work, 10 and public safety

inspectors or utility company personnel entering a premises to read meters. 11

        To determine whether a claimant qualifies as an invitee, a plaintiff has the burden

to prove that he was an invitee at the time of the alleged injury. Texas case law has

established the following two-part definition of “invitee”: one who enters onto premises

with the owner’s express or implied knowledge and for the parties’ mutual benefit. 12

Permission to enter may be expressly given or may be implied, as is the case when a store

owner opens its doors to the public.             Under such circumstances, owners of retail

establishments extend implied invitations to the public to enter the premises, have reason

to expect visitors upon the premises, and should anticipate the presence of such persons

on the premises. 13 Such expectation of strangers entering upon the property gives rise to

the duty owed, as discussed below. The plaintiff must also prove that entry onto the




5
  Meeks v. Rosa, 988 S.W.2d 216, 217 (Tex. 1999); Hernandez v. Heldenfels, 374 S.W.2d 196, 197 (Tex.
1963); Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 162 (Tex. App.—Waco 1995, no writ).
6
   See Allen v. Albright, 43 S.W.3d 643, 648 (Tex. App.—Texarkana 2001, no pet.) (considering a cry for
help to be an invitation onto premises).
7
  Dunnings v. Castro, 881 S.W.2d 559, 563 (Tex. App.—Houston [1st Dist.] 1994, writ denied).
8
  Houston v. Northwest Vill., Ltd., 113 S.W.3d 443, 445-46 (Tex. App.—Amarillo 2003, no pet.).
9
  Parker v. Highland Park, Inc., 565 S.W.2d 512, 514-15 (Tex. 1978); RESTATEMENT (SECOND) OF TORTS
§ 360 & cmts.(a, c) (1965).
10
   General Elec. Co. v. Moritz, 257 S.W.3d 211, 216 (Tex. 2008).
11
   RESTATEMENT (SECOND) OF TORTS §345 & cmts. (c, e) (1965).
12
   Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 536 (Tex. 1975).
13
   Renfro Drug Co., v. Lewis, 235 S.W.2d 609, 616 (Tex. 1950); Peerenboom, 910 S.W.2d at 162.


                                                 II-2
premises was for the mutual benefit of both the plaintiff and the owner/possessor. 14                In

the case of a retailer, mutual benefit does not require that the plaintiff enter onto the

premises with the intention to purchase anything. 15 Rather, the retailer is benefited even

when a patron browses and merely inspects merchandise; the benefit comes in the form

of potential future sales. 16

        2.       Defendant was a possessor of the premises. As discussed in Section I-B

herein, to succeed on a premises liability claim Plaintiff must prove that Defendant was a

possessor controlling the premises where the alleged injury occurred. 17 In invitee cases,

defendant possessors generally take the form of proprietors (owners and operators of

businesses open to the public), 18 general contractors, 19 landlords, 20 tenants, 21 easement

owners, 22 or governmental units. 23

        3.       A condition on the premises posed an unreasonable risk of harm.

Plaintiff must also prove that the condition on the premises posed an unreasonable risk of




14
   Rosas, 518 S.W.2d at 536.
15
   Carlisle v. J. Weingarten, Inc., 152 S.W.2d 1073, 1075 (Tex. 1941).
16
   Id. at 1076.
17
   See Wilson v. Texas Parks & Wildlife Dept., 8 S.W.3d 634, 635 (Tex. 1999) (finding an absence of
evidence that the state agency defendant controlled the river where the plaintiff drowned); Thornhill v.
Ronnie’s I-45 Truck Stop, Inc., 944 S.W.2d 780, 788 (Tex. App.—Beaumont 1997, writ dism’d) (defining
“possessor” as a defendant that exercised control over the subject premises); Cameron City v. Velazquez,
668 S.W.2d 776, 780 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.) (confirming that the plaintiff
bears the burden of proving that the defendant controlled the premises).
18
   Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).
19
   Redinger v. Living, Inc., 689 S.W.2d 415-417 (Tex. 1985).
20
   Johnson County Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996).
21
    Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (controlled areas); Wal-Mart
Stores v. Alexander, 868 S.W.2d 322, 324 (Tex. 1993) (adjacent areas); Howe v. Kroger Co., 598 S.W.2d
929, 930-931 (Tex. App.—Dallas 1980, no writ) (leased premises).
22
    Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367 (Tex. App.—Houston [1st Dist.] 1994, writ
denied).
23
   TEX. CIV. PRAC. & REM. CODE ANN. § 101.022 (Vernon Supp. 2008).



                                                 II-3
harm. 24 The determination of danger is dependent upon whether a reasonably prudent

person would foresee that harm was a likely result of the condition. 25

        4.      Defendant knew or reasonably should have known of the danger.

Plaintiff must also prove that Defendant had actual or constructive knowledge of the

dangerous condition. 26 Actual knowledge can be proven by establishing that Defendant

or Defendants’ employees actually knew of the condition, or by showing that Defendant

took precautionary measures to reduce the subject danger. 27 Constructive knowledge can

be proven by establishing that Defendant objectively should have known or had reason to

know of the danger, most often via proof that the dangerous condition had existed for a

long enough period of time that the Defendant should have discovered it through

reasonable inspection. 28 For additional discussion and specific case law treatment of slip

and fall cases, see discussion in Section XI-A herein.

        5.      Defendant breached its duty of ordinary care to protect the plaintiff

from danger by both failing to adequately warn Plaintiff of the condition and failing

to make the condition reasonably safe. Although a premises possessor owes an invitee

a duty of ordinary care to protect the invitee from danger, the possessor is not required to

be an insurer of the invitee’s safety. 29 To succeed in a premises liability action, a

plaintiff must prove that the defendant breached its duty of ordinary care to keep the

premises in reasonably safe condition. 30 A premises liability defendant’s duty includes



24
   LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
25
   Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 537 (Tex. 1975)..
26
   LMB, Ltd., 201 S.W. 3d. at 688.
27
   Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 343 (Tex. App.—Austin 2000, pet. denied).
28
   CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102-03 (Tex. 2000).
29
   Id. at 101.
30
   Carlisle v. J. Weingarten, Inc., 152 S.W.2d 1073, 1074 (Tex. 1941). See also RESTATEMENT (SECOND)
OF TORTS § 343.



                                               II-4
the duty to inspect, the duty to warn or make safe, and the duty not to willfully or

wantonly injure invitees by gross negligence.

        The possessor is obligated to inspect the premises for latent defects and is charged

with constructive knowledge of any defects or dangerous conditions that could have been

found by conducting a reasonably careful inspection. 31          If a possessor knows or

reasonably should know of a dangerous premises condition posing an unreasonable risk

of harm to an invitee, the possessor has a duty to either warn the invitee of the condition

or to take reasonable steps to make safe the danger. 32 To win its premises liability case,

the plaintiff must obtain a finding that the defendant failed both to warn and to eliminate

the dangerous condition. 33

        Additional duty analysis may be required when evaluating claims involving

certain types of defendants, certain classes of invitees, and/or certain factual

circumstances.

                 a.       Duty Owed by General Contractors. General contractors in control

of the premises are considered possessors for purposes of premises liability. 34 As such,

these general contractors owe invitees the same duty of ordinary care owed by other

owners or possessors of real property. 35

                 b.       Duty Owed by Easement Owners.        Easement owners are also

considered possessors in premises liability cases, and owe invitees a duty to use ordinary




31
   CMH Homes, 15 S.W.3d at 101;
32
   State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996).
33
   Id.
34
   Redinger v. Living, Inc., 689 S.W.2d 415-417 (Tex. 1985).
35
   Id.


                                                  II-5
care regarding use and maintenance of the easement, despite the fact that easement

owners do not actually own or occupy the premises in question. 36

                c.       Duties Owed in Independent Contractor Cases.               When           an

invitee’s alleged injury is caused by a premises defect resulting from an independent

contractor’s work, premises owners can be liable to the invitee if: (1) the owner retains

the right to control the independent contractor’s work; 37 (2) the independent contractor’s

work is inherently dangerous; 38 (3) the owner retains possession of the premises during

the time the independent contractor’s work is performed; 39 or (4) the owner resumes

possession of the premises after completion of the independent contractor’s work. 40

        The owner or proprietor is generally not liable to the independent contractor or

the contractor’s employees for dangerous conditions arising out of the contractor’s work,

because the independent contractor is in a better position to recognize and eliminate

specific dangers arising from its activities. 41       However, the owner can be liable if it

retains the contractual right to control or actually controls the manner in which the

independent contractor’s work is performed, if the control relates directly to the injury-

causing activity, and if the owner has actual knowledge of a dangerous premises

condition but fails to warn the contractor. 42




36
   Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367 (Tex. App.—Houston [1st Dist.] 1994, writ
denied).
37
   Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997).
38
   Loyd v. Herrington, 182 S.W.2d 1003, 1004 (Tex. 1944); RESTATEMENT (SECOND) OF TORTS §427
(1965).
39
   Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 47 (Tex. App.—Amarillo 2002, pet. denied); RESTATEMENT
(SECOND) OF TORTS §422(a).
40
   RESTATEMENT (SECOND) OF TORTS §422(b).
41
   Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999).
42
   TEX. CIV. PRAC. & REM. CODE §95.003 (Vernon 2005). See also Coastal Marine Serv. v. Lawrence, 988
S.W.2d 223, 226 (Tex. 1999) (requiring the control to directly relate to the injury-causing activity).


                                                II-6
        A second exception to the independent contractor general rule exists when the

premises defect pre-exists the contractor’s entry onto the property and is concealed by the

owner. 43 With regard to pre-existing defects, an owner is only obligated to inspect the

premises and warn of concealed dangers about which the owner knows or should know. 44

                    d.   Duties Owed in Landlord/Tenant Cases.             Tenants and lessees

are considered possessors in premises cases and owe the duty of ordinary care to other

invitees for defects in the leased premises and in any adjacent areas subject to the tenants’

or lessees’ control, but are not liable for premises defects in common areas not under

their control. 45

        Generally, landlords are not liable to tenants or their guests for dangerous

conditions on the leased premises. 46 This rule originates from the notion that a lessor

relinquishes possession or occupancy of the premises to the lessee. 47 When the property

is leased, the lessee becomes the exclusive possessor and occupier of the property, and

the lessor’s liability for dangerous conditions terminates. 48 The tenant thus takes the

property as she finds it, assuming the risk of apparent defects. 49

        Despite this general rule, certain exceptions exist. Landlords who have retained

control over a portion of the premises, as in the case of public stairs leading to a leased

apartment, may be liable for injury-causing premises defects on those portions of the



43
   General Electric Co. v. Moritz, 257 S.W.3d 211, 216 (Tex. 2008); See also Lawrence, 988 S.W.2d at
225.
44
   Id.
45
    Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (controlled areas); Wal-Mart
Stores v. Alexander, 868 S.W.2d 322, 324 (Tex. 1993) (adjacent areas); Howe v. Kroger Co., 598 S.W.2d
929, 930-931 (Tex. App.—Dallas 1980, no writ) (leased premises).
46
   Johnson County Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996).
47
   Id.; Levesque v. Wilkins, 57 S.W.3d 499, 504 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
48
   Endsley, 926 S.W.2d at 285.
49
   Id.


                                                II-7
premises. 50 Also, landlords who are aware of concealed defects when the premises is

leased but fail to warn tenants or make the defects safe also may be held liable for those

premises defects. 51 Finally, lessors making negligent repairs that cause injury may be

liable despite the transfer of premises possession to the tenant:

        A lessor of land who, by purporting to make repairs on the land while it is
        in the possession of his lessee, or by the negligent manner in which he
        makes such repairs has, as the lessee neither knows nor should know,
        made the land more dangerous for use or given it a deceptive appearance
        of safety, is subject to liability for physical harm caused by the condition
        to the lessee or to others upon the land with the consent of the lessee or
        sublessee. 52

As explained in the Second Restatement of Torts, “[t]he lessor is subject to liability if,

but only if, the lessee neither knows nor should know that the purported repairs have not

been made or have been negligently made and so, relying upon the deceptive appearance

of safety, subjects himself to the dangers or invites or permits his licensees to encounter

them.” 53

                 e.       Duty Owed by Governmental Entities.                 The      Texas       Tort

Claims Act pinpoints two circumstances under which a governmental entity can be liable

to an invitee on a premises liability claim: (1) when the premises defect is a special, not

an ordinary, defect; and (2) when the invitee pays to enter the premises. 54 For a more

detailed discussion of premises liability claims against governmental entities, see Section

VII herein.




50
   Parker v. Highland Park, Inc., 565 S.W.2d 512, 514-15 (Tex. 1978).
51
   Endsley, 926 S.W.2d at 285; General Electric Co. v. Moritz, 257 S.W.3d 211, 215 (Tex. 2008).
52
   Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, 591 (Tex. App.—Houston [1st Dist.] 2005, no
pet.) (citing RESTATEMENT (SECOND) OF TORTS § 362 (1965)).
53
   RESTATEMENT (SECOND) OF TORTS § 362, cmt. d (1965).
54
   TEX. CIV. PRAC. & REM. CODE ANN. § 101.022.


                                                 II-8
                f.       Duty Owed in Criminal Conduct Cases.               Special    analysis   is

also necessary when the danger to an invitee comes in the form of intentional criminal

conduct by a third party. Although there are no absolute rules regarding what steps an

owner must take to protect invitees from third party criminal activity, the Texas Supreme

Court has acknowledged that an owner must “provide adequate security.” 55 Generally, a

defendant is not liable to a plaintiff for the superseding criminal acts of a third party. 56

However, a premises owner has a duty to exercise ordinary care to protect invitees from

third party criminal acts if the owner knows or has reason to know of an unreasonable

and foreseeable risk of harm to the invitee.57 Breach of this duty can subject owners to

premises liability for criminal conduct occurring on their premises.

        In determining whether the risk of a specific criminal act was foreseeable to the

owner before the criminal conduct occurred, Texas courts look at the five factors of

proximity, recency, frequency, similarity, and publicity of prior crimes on or near the

premises. 58 Courts will consider: (1) whether any criminal conduct has occurred on or

near the premises, usually within a narrow geographic area surrounding the property; (2

and 3) how recently and how often such criminal conduct occurred, with a significant

number of crimes occurring within a short time period strengthening the foreseeability

claim and the absence or limited occurrence of prior crimes over an extended time period

negating foreseeability; (4) how similar the prior criminal conduct was to the criminal

conduct at issue in the case, and whether the occurrence of the prior conduct was

sufficiently similar to place the owner on notice of the specific danger; and (5) how well-


55
   Timberwalk Apartments., Partners v. Cain, 972 S.W.2d 749, 753 (Tex. 1998).
56
   Timberwalk, 972 S.W.2d at 756; Nixon v. Mr. Property Mgmt., 690 S.W.2d 546, 550 (Tex. 1985).
57
   Timberwalk, 972 S.W.2d at 756.
58
   Id. at 757.


                                                II-9
publicized the prior criminal occurrences were, either indicating an owner’s actual or

constructive knowledge of prior crimes through tenants’ reports or heavily reported news

stories or failing to establish foreseeability if the prior incidents were unreported (it

should also be noted that property owners bear no duty to regularly inspect criminal

records to determine the risk of crime in an area). 59

        6.       Defendant’s breach proximately caused Plaintiff’s injury.                    Finally,

Plaintiff must prove that Defendant’s breach of duty proximately caused Plaintiff’s

injury. 60 Proximate cause requires two elements: cause-in-fact and forseeability. “The

test for cause-in-fact, or ‘but-for’ causation, is whether (1) the act or omission was a

substantial factor in causing the injury and (2) without the act or omission the harm

would not have occurred.” 61 “Foreseeability requires only that the general danger, not

the exact sequence of events that produced the harm, be foreseeable.” 62

B.      Statute of Limitations

        As with other negligence claims, the statute of limitations for premises liability

claims brought by invitees is two years. 63

C.      Remedies Available

        Generally, the same remedies available in a negligence case are available in a

premises liability case. An invitee plaintiff bringing a successful premises liability claim

can recover actual damages for personal injury and for damage to personal property, 64


59
   Id. at 756-57.
60
   LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
61
   Id.
62
   Timberwalk, 972 S.W.2d at 756.
63
   TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon 2005). For Texas cases applying § 16.003 to
premises liability claims, see Pirtle v. Kahn, 177 S.W.3d 567, 570 (Tex. App.—Houston [1st Dist.] 2005,
pet. denied) and Brinker v. Looney, 135 S.W.3d 280, 284 (Tex. App.—Fort Worth 2004, no pet.).
64
   See Brown v. Frontier Theaters, Inc., 369 S.W.2d 299, 303 (Tex. 1963) (awarding personal property
damage award in a premises liability case).


                                                II-10
and exemplary damages if gross negligence is proven and actual damages are awarded. 65

Court costs and pre- and postjudgment interest are also recoverable. Attorneys fees are

not recoverable in a premises liability action.



845312




65
  TEX. CIV. PRAC. & REM. COD ANN. §§ 41.003, 41.005 (Vernon 2005). See, e.g., Lincoln Prop. Co. v.
DeShazo, 4 S.W.3d 55, 62-63 (Tex. App.—Fort Worth 1999, pet. denied) (awarding exemplary damages to
patron assaulted in defendant’s parking lot).


                                              II-11
III.   CLAIMS BY LICENSEES

       A.   Elements of Claims ................................................................................ III-1
            1.    Plaintiff met the definition of licensee....................................... III-1
            2.    Defendant was an owner or possessor of the premises.............. III-2
            3.    A condition on the premises posed an unreasonable
                  risk of harm ................................................................................ III-4
            4.    Defendant had actual knowledge of the danger......................... III-4
            5.    Plaintiff did not have actual knowledge of the danger .............. III-5
            6.    Defendant breached its duty of ordinary care by both failing
                  to adequately warn Plaintiff of the condition and by failing
                  to make the condition reasonably safe. ...................................... III-5
                  a.      Duty Owed Under the “Firefighter’s Rule” ................... III-6
            7.    Defendant’s breach proximately caused Plaintiff’s injury......... III-6

       B.   Statute of Limitations............................................................................. III-7

       C.   Remedies Available ............................................................................... III-7
                              III.     CLAIMS BY LICENSEES

A.      Elements of Claims

        The seven required elements of a premises liability cause of action brought by a

licensee are:

        •        Plaintiff met the definition of licensee;

        •        Defendant was an owner or possessor of the premises;

        •        A condition on the premises posed an unreasonable risk of harm;

        •        Defendant had actual knowledge of the danger;

        •        Plaintiff did not have actual knowledge of the danger;

        •        Defendant breached its duty of ordinary care to protect the plaintiff from
                 danger by both failing to adequately warn Plaintiff of the condition and
                 failing to make the condition reasonably safe; and

        •        Defendant’s breach proximately caused Plaintiff’s injury. 1

Each of these elements is discussed in greater detail below.

        1.       Plaintiff met the definition of licensee. Licensees are afforded a slightly

narrower scope of protection than invitees.             Licensees can take the form of family

members (but not other household members such as employees boarders, or paying

guests), 2 social guests, 3 visitors to business establishments who visit only for their own

purposes, 4 off-duty employees in anticipated and permitted areas,5 volunteer rescuers

who do not respond to a cry for help but instead enter premises without invitation in an

1
  State v. Williams, 940 S.W.2d 583, 584-85 (Tex. 1996); State v. Tennison, 509 S.W.2d 560, 562 (Tex.
1974); Knorpp v. Hale, 981 S.W.2d 469, 471-72 (Tex. App.—Texarkana 1998, no pet.).
2
  RESTATEMENT (2D) OF TORTS § 330 cmt. h.
3
  Id.; Dominguez v. Garcia, 746 S.W.2d 865, 867 (Tex. App.—San Antonio 1988, writ denied); Hastings v.
De Leon, 532 S.W.2d 147, 148 (Tex. App.—San Antonio 1975, writ ref’d n.r.e.); Weekes v. Kelley, 433
S.W.2d 769, 771 (Tex. App.—Eastland 1968, writ ref’d n.r.e.).
4
  Holder v. Mellon Mortg. Co., 954 S.W.2d 786, 798 (Tex. App.—Houston [14th Dist.] 1997, rev’d on other
grounds, 5 S.W.3d 654 (Tex. 1999).
5
  Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 163 (Tex. App.—Waco 1995, no writ).


                                                III-1
attempt to rescue someone in danger or to reduce the risk to the premises or the general

public, 6 public safety officers and volunteer firefighters responding to emergencies, 7

door-to-door salespersons who have not been invited into the home, 8 solicitors of money

for charity, persons who arrive to borrow tools, or persons who pick up and remove trash

or other objects for their own benefit. 9

        In order to establish that a claimant qualifies as a licensee, a plaintiff has the

burden to prove that he was a licensee at the time of the alleged injury. Texas courts

have referenced the Restatement (Second) of Torts’ definition of “licensee” as “a person

who is privileged to enter or remain on land only by virtue of the possessor’s consent.” 10

Although a licensee enters the premises with the permission of the landowner, the

licensee does so for his own convenience or on the business of someone other than the

owner, rather than for the mutual benefit of both the licensee and the premises owner. 11

The licensee plaintiff must prove that he received permission to enter the premises either

expressly or impliedly, as in the case of prior dealings between the licensee and premises

owner or of the possessor’s repeated tolerances of trespassing by the licensee. 12

        2.       Defendant was an owner or possessor of the premises. As discussed in

greater detail in Section I-B herein, to succeed on a premises liability claim Plaintiff must

prove that Defendant was a possessor controlling the premises where the alleged injury


6
  Pifer v. Muse, 984 S.W.2d 739, 742-43 (Tex. App.—Texarkana 1998, no pet.).
7
  Campus Mgmt. v. Kimball, 991 S.W.2d 948, 950 (Tex. App.—Fort Worth 1999, pet. denied); Peters v.
Detsco, Inc., 820 S.W.2d 38, 40 (Tex. App.—Houston [14th Dist.] 1991, writ denied).
8
  RESTATEMENT (2D) OF TORTS § 332 cmt. b (1965).
9
  PROSSER & KEETON ON TORTS § 60, at 413.
10
   Knorpp v. Hale, 981 S.W.2d 469, 471 (Tex. App.—Corpus Christi 2002, no pet.) (quoting RESTATEMENT
(2D) OF TORTS § 330 & cmt. h).
11
   Knorpp, 981 S.W.2d at 471 (citing Smith v. Andrews, 832 S.W.2d 395, 397 (Tex. App.—Fort Worth
1992, writ denied).
12
   Lacy v. Rusk State Hosp., 31 S.W.3d 625, 630 (Tex. App.—Tyler 2000, no pet.); Montes v. Indian Cliffs
Ranch, Inc., 946 S.W.2d 103, 105 (Tex. App.—El Paso 1997, writ denied).


                                                 III-2
occurred. 13 In licensee cases, defendant possessors generally take the form of social

hosts, business establishments, employers, or governmental units.

        Social guests of premises owners or possessors are considered licensees as long as

their injuries occur as the result of premises conditions and not negligent activities. 14

        Although business owners owe invitee duties to customers and potential

customers who enter onto their premises, visitors who enter business establishment

premises solely for the visitors’ own purposes (and not for the mutual benefit of the

visitor and the business owner) will be treated as licensees. 15 Examples of licensee

visitors include pedestrians taking short cuts across business owners’ parking lots,

loafers, loiterers, visitors who enter business premises solely to get out of the weather,

visitors who enter solely in search of their children or third parties, uninvited spectators

or sightseers, and visitors entering office buildings to use mailboxes provided for the use

of building tenants. 16

        In certain circumstances, a Defendant employer will owe licensee duties to an off-

duty employee. For example, an off-duty employee waiting in an employee break room

for the employee’s post-work transportation to arrive is considered a licensee. 17 If,

however, the off-duty employee ventures into other portions of the employer’s premises




13
   See Wilson v. Texas Parks & Wildlife Dept., 8 S.W.3d 634, 635 (Tex. 1999) (finding an absence of
evidence that the state agency defendant controlled the river where the plaintiff drowned); Thornhill v.
Ronnie’s I-45 Truck Stop, Inc., 944 S.W.2d 780, 788 (Tex. App.—Beaumont 1997, writ dism’d) (defining
“possessor” as a defendant that exercised control over the subject premises); Cameron City v. Velazquez,
668 S.W.2d 776, 780 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.) (confirming that the plaintiff
bears the burden of proving that the defendant controlled the premises).
14
   Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); RESTATEMENT (2D) OF TORTS § 330 cmt. h ¶ 3.
15
   Holder v. Mellon Mortg. Co., 954 S.W.2d 786, 798 (Tex. App.—Houston [14th Dist.] 1997, rev’d on
other grounds, 5 S.W.3d 654 (Tex. 1999).
16
   Id. at 799; PROSSER & KEETON ON TORTS § 60, at 413.
17
   Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 163 (Tex. App.—Waco 1995, no writ).


                                                 III-3
for which she has no permission to enter, the off-duty employee will be treated as a

trespasser. 18

        The Texas Tort Claims Act sets forth two circumstances under which a

governmental entity owes a plaintiff the same standard of care that is owed to a licensee

in a premises liability claim: (1) when the plaintiff is injured on public property by an

ordinary premises defect and the plaintiff is not a paying customer, or (2) for claims

accruing after June 13, 2005, when the claim arose from a premises defect on a toll

highway, road, or street. 19 For a more detailed discussion of premises liability claims

against governmental entities, see Section VII herein.

        3.       A condition on the premises posed an unreasonable risk of harm. As

with invitees, a licensee in a premises liability claim must prove that a condition on the

premises posed an unreasonable risk of harm. 20 The determination of danger is made

dependent upon whether a reasonably prudent person would foresee that harm was a

likely result of the condition. 21

        4.       Defendant had actual knowledge of the danger. Unlike in invitee cases,

where premises liability can be established by showing that Defendant knew or

reasonably should have known of the existence of the subject danger, in licensee cases

Plaintiff must show prove that Defendant had actual, and not merely constructive,

knowledge of the danger. 22          Actual knowledge can be proven by establishing that

Defendant actually knew of the condition, or by showing that Defendant took


18
   Id.
19
   TEX. CIV. PRAC. & REM. CODE ANN. § 101.022 (a, c).
20
   LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
21
   Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 537 (Tex. 1975).
22
   State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974); McClure v. Rich, 95 S.W.3d 620, 624 (Tex. App.—
Dallas 2002, no pet.).


                                                III-4
precautionary measures to reduce the subject danger, 23 or by showing that Defendant

created the dangerous condition in question. 24 Such proof of actual knowledge may be

established by circumstantial evidence. 25

        5.       Plaintiff did not have actual knowledge of the danger. In addition to

proving that Defendant had actual knowledge of the dangerous condition, the licensee

Plaintiff must also establish that he did not have actual knowledge of the premises

condition. 26    If the subject condition was perceptible to Plaintiff or if Plaintiff’s

subjective knowledge or experience would allow Plaintiff to infer the existence of the

subject danger, Plaintiff will be found to have actual knowledge of the danger, and will

be barred from recovery. 27 “In other words, a licensor owes no duty to a licensee so long

as the evidence conclusively establishes the licensee perceived the alleged dangerous

condition.” 28 In licensee cases, where Plaintiff and Defendant have equal knowledge of

the dangerous condition in question, Defendant owes no duty to Plaintiff to warn of or

make safe the danger. 29

        6.       Defendant breached its duty of ordinary care by both failing to

adequately warn Plaintiff of the condition, and by failing to make the condition

reasonably safe. In licensee cases, the general rule is that a premises possessor owes a

duty to the licensee not to injure the licensee willfully, wantonly, or by gross

23
   Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 343 (Tex. App.—Austin 2000, pet. denied).
24
   County of Harris v. Eaton, 573 S.W.2d 177, 179-180 (Tex. 1978); Texas Dep’t of Transp. v. Henson, 843
S.W.2d 648, 652 (Tex. App.—Houston [14th Dist.] 1992, writ denied).
25
   Simons v. City of Austin, 912 S.W.2d 524, 528 n.2 (Tex. App.—Austin 1996, writ denied).
26
   Wal-Mart Stores v. Miller, 102 S.W.3d 706, 709 (Tex. 2003); State Dep’t of Highways & Pub. Transp. v.
Payne, 838 S.W.2d 235, 237 (Tex. 1992).
27
   Lower Neches Valley Auth. v. Murphy, 536 S.W.2d 561, 564 (Tex. 1976). See also Gonzalez v.
Broussard, 274 S.W.2d 737, 739 (Tex. App.—San Antonio 1954, writ ref’d n.r.e.) (licensee child who
knew about existence of rocks on playground and knew he could slip and stumble on rocks was barred
from recovery).
28
   Miller, 102 S.W.2d at 709.
29
   Id.


                                                 III-5
negligence. 30 An exception to this general rule occurs when the premises possessor has

actual knowledge of a dangerous premises condition posing an unreasonable risk of harm

to a licensee, and the licensee does not have actual knowledge of the condition. Under

such circumstances, the possessor has a duty to either warn the licensee of the condition

or to make the condition reasonably safe. 31            To win its premises liability case, the

licensee must obtain a finding that the defendant failed both to warn and to eliminate the

dangerous condition. 32

                a.       Duty Owed Under the “Firefighter’s Rule.” Under               the     Texas

version of the “firefighter’s rule,” public safety officers and volunteer firefighters

responding to emergencies are also considered licensees and are owed the following

duties by premises possessors: (1) the duty to warn of known dangerous conditions of

which the officer or firefighter is unaware; (2) the duty not to injure the officer or

firefighter willfully, wantonly, or by gross negligence, and (3) the duty not to injure the

officer or firefighter through active negligence after his arrival on the premises. 33

        7.      Defendant’s breach proximately caused Plaintiff’s injury. Finally, the

licensee Plaintiff must prove that Defendant’s breach of duty proximately caused

Plaintiff’s injury. 34     Proximate cause requires two elements: cause-in-fact and

forseeability. “The test for cause-in-fact, or ‘but-for’ causation, is whether (1) the act or

omission was a substantial factor in causing the injury and (2) without the act or omission




30
   Id.
31
   Id.; State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996).
32
   Williams, 940 S.W.2d at 584.
33
   Campus Mgmt. v. Kimball, 991 S.W.2d 948, 950 (Tex. App.—Fort Worth 1999, pet. denied); Peters v.
Detsco, Inc., 820 S.W.2d 38, 40 (Tex. App.—Houston [14th Dist.] 1991, writ denied).
34
   LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).


                                                III-6
the harm would not have occurred.” 35 “Foreseeability requires only that the general

danger, not the exact sequence of events that produced the harm, be foreseeable.” 36

B.       Statute of Limitations

         As with other negligence claims, the statute of limitations for premises liability

claims brought by licensees is two years. 37

C.       Remedies Available

         If Defendant is a possessor who allows its agricultural land to be used for

recreational purposes, the Recreational Use Statute limits the amount of damages that the

licensee plaintiff can recover. 38 For a full discussion of the Recreational Use Statute and

its cap on recoverable damages, see Section VI herein.

         With this exception, the remedies available to a licensee in a premises liability

claim are the same as those available to an invitee. A licensee plaintiff bringing a

successful premises liability claim can recover actual damages for personal injury and for

damage to personal property, 39 and exemplary damages if gross negligence is proven and

actual damages are awarded. 40 Court costs and pre- and postjudgment interest are also

recoverable. Attorneys’ fees are not recoverable in a premises liability action.




845333
35
   Id.
36
   Timberwalk Apts., Partners v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).
37
   TEX. CIV. PRAC. & REM. CODE ANN. § 16.003. For Texas cases applying § 16.003 to premises liability
claims, see Pirtle v. Kahn, 177 S.W.3d 567, 570 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) and
Brinker v. Looney, 135 S.W.3d 280, 284 (Tex. App.—Fort Worth 2004, no pet.).
38
   TEX. CIV. PRAC. & REM. CODE ANN. § 75.004(a) (Vernon Supp. 2008).
39
   See Brown v. Frontier Theaters, Inc., 369 S.W.2d 299, 303 (Tex. 1963) (awarding personal property
damage award in a premises liability case).
40
   TEX. CIV. PRAC. & REM. COD ANN. §§ 41.003, 41.005 (Vernon 2005). See, e.g., Lincoln Prop. Co. v.
DeShazo, 4 S.W.3d 55, 62-63 (Tex. App.—Fort Worth 1999, pet. denied) (awarding exemplary damages to
patron assaulted in defendant’s parking lot).


                                               III-7
IV.   CLAIMS BY TRESPASSERS

      A.   Elements of Claims ................................................................................ IV-1
           1.    Plaintiff met the definition of trespasser.................................... IV-1
           2.    Defendant was an owner or possessor of the premises.............. IV-2
           3.    A condition on the premises posed an unreasonable
                 risk of harm ................................................................................ IV-3
           4.    Defendant breached its duty of care by acting willfully,
                 wantonly, or with gross negligence ........................................... IV-3
                 a.      Duty Owed to Tolerated Trespasser .............................. IV-4
                 b.      Duty Owed to Discovered Trespasser............................ IV-5
                 c.      Duty Owed to Trespasser with Emergency/Necessity... IV-5
                 d.      Duty Owed to Volunteer Rescuer .................................. IV-5
           5.    Defendant’s breach proximately caused Plaintiff’s injury......... IV-5

      B.   Statute of Limitations............................................................................. IV-6

      C.   Remedies Available ............................................................................... IV-6
                           IV.      CLAIMS BY TRESPASSERS

A.      Elements of Claims

        Because the law affords a trespasser the least amount of protection in a premises

liability case, plaintiffs rarely seek to be designated as such.            Practically speaking,

trespasser status is generally raised by defendants as a way of narrowing their duty owed

to plaintiffs and avoiding liability. The five required elements necessary for qualification

as a trespasser in a premises liability cause of action are:

         •      Plaintiff met the definition of trespasser;

        •       Defendant was an owner or possessor of the premises;

        •       A condition on the premises posed an unreasonable risk of harm;

        •       Defendant breached its duty of care by acting willfully, wantonly, or with
                gross negligence; and

        •       Defendant’s breach proximately caused Plaintiff’s injury. 1

Each of these elements is discussed in greater detail below.

        1.      Plaintiff met the definition of trespasser. Texas case law defines a

trespasser as follows:

        A person is a trespasser where he enters upon the property of another
        without any right, lawful authority, or express or implied invitation,
        permission, or license, not in the performance of any duty to the owner or
        person in charge or on any business of such person, but merely for his own
        purposes, pleasure, or convenience, or out of curiosity, and without any
        enticement, allurement, inducement, or express or implied assurance of
        safety from the owner or person in charge. 2

A plaintiff need not realize he is trespassing to be classified as a trespasser. 3


1
  See generally Texas Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997); Texas-Louisiana
Power Co. v. Webster, 91 S.W.2d 302, 306 (Tex. 1936); Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156,
163-64 (Tex. App.—Waco 1995, no writ).
2
  Webster, 91 S.W.2d at 306.
3
  General Tel. Co. v. Bi-Co Pavers, Inc., 514 S.W.2d 168, 170 (Tex. App.—Dallas 1974, no writ).


                                               IV-1
         Trespassers can take the form of tenants subletting without permission, 4

employees on premises without permission, 5 friends of employees on premises without

permission, 6 unpermitted hunters or fishermen, 7 flashers and peeping Toms, 8 children

who do not qualify under the Attractive-Nuisance Doctrine, 9 recreational land users

pursuant to the Recreational Use Statute,10 or invitees and licensees who become

trespassers when they make unforeseen and uninvited departures onto other portions of

the subject premises. 11

         2.       Defendant was an owner or possessor of the premises. As discussed in

greater detail in Section I-B herein, to succeed on a premises liability claim Plaintiff must

prove that Defendant was a possessor controlling the premises where the alleged injury

occurred. 12 Trespasser cases often see defendant possessors take the form of landlords to

unpermitted subtenants, employers, and owners of hunting land.




4
  Brown v. Johnson, 12 S.W.2d 543, 545 (Tex. 1929).
5
   Burton Constr. & Shipbuilding Co. v. Broussard, 273 S.W.2d 598, 601-02 (Tex. 1954); Peerenboom v.
HSP Foods, Inc., 910 S.W.2d 156, 161 (Tex. App.—Waco 1995, no writ).
6
  Galveston Oil Co. v. Morton, 7 S.W. 756, 758 (Tex. 1888).
7
  Smither v. Texas Utils. Elec. Co., 824 S.W.2d 693, 695 (Tex. App.—El Paso 1992, writ dism’d).
8
   Mansfield v. C.F. Bent Tree Apartment Ltd. P’ship., 37 S.W.3d 145, 152 (Tex. App.—Austin 2001, no
pet.).
9
  For a more detailed discussion of liability under the Attractive Nuisance Doctrine, please see Section V.
herein.
10
    TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(b)(2), (c)(2) (Vernon Supp. 2008). For a more detailed
discussion of liability under the Recreational Use Statute, please see Section VI herein.
11
    See Wong v. Tenet Hosps., Ltd., 181 S.W.3d 532, 537-38 (Tex. App.—El Paso 2005, no pet.) and
Peerenboom, 910 S.W.2d at 161 (both finding that the status of permitted invitees or licensees can be
downgraded to that of trespasser if unforeseen and uninvited departures to other portions of the premises
are made, but noting that the transfer to trespasser status does not occur if the owner can reasonably foresee
that the invitee or licensee will use part of the premises without permission or for a nonpermitted purpose).
12
    See Wilson v. Texas Parks & Wildlife Dept., 8 S.W.3d 634, 635 (Tex. 1999) (finding an absence of
evidence that the state agency defendant controlled the river where the plaintiff drowned); Thornhill v.
Ronnie’s I-45 Truck Stop, Inc., 944 S.W.2d 780, 788 (Tex. App.—Beaumont 1997, writ dism’d) (defining
“possessor” as a defendant that exercised control over the subject premises); Cameron City v. Velazquez,
668 S.W.2d 776, 780 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.) (confirming that the plaintiff
bears the burden of proving that the defendant controlled the premises).


                                                    IV-2
        Landlords are entitled to give permission for subleases. 13 When tenants sublet

property without the landlord’s permission, those subtenants are considered trespassers to

the landlord. 14

        As discussed earlier, Defendant employers have the right to expect their

employees to stay in designated areas elated to the work they are performing.                  If

employees venture into portions of the employers’ premises for which they have no

permission to enter, the employees will be treated as trespassers. 15

        Landowners are not required to allow hunters or fishermen onto their land. When

a person hunts or fishes on another person’s land without permission of the landowner,

the hunter or fisher is considered a trespasser. 16

        3.         A condition on the premises posed an unreasonable risk of harm. As

with invitees and licensees, a trespasser in a premises liability claim must prove that a

condition on the premises posed an unreasonable risk of harm. 17 The determination of

danger is dependent upon whether a reasonably prudent person would foresee that harm

was a likely result of the condition. 18

        4.         Defendant breached its duty of care by acting willfully, wantonly, or

with gross negligence. A premises owner is not required to anticipate that trespassers

will enter onto his property, nor does he owe trespassers a duty or reasonable care to keep

the premises in a reasonably safe condition. 19 “The only duty a premises owner or



13
    TEX. PROP. CODE ANN. §91.005 (2007) (“During the term of a lease, the tenant may not rent the
leasehold to any other person without the prior consent of the landlord.”).
14
   Brown v. Johnson, 12 S.W.2d 543, 545 (Tex. 1929).
15
   Id.
16
   Smither v. Texas Utils. Elec. Co., 824 S.W.2d 693, 695 (Tex. App.—El Paso 1992, writ dism’d).
17
   LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
18
   Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 537 (Tex. 1975).
19
   Burton Constr. & Shipbuilding Co. v. Broussard, 273 S.W.2d 598, 602-03 (Tex. 1954).


                                             IV-3
occupier owes a trespasser is not to injure him willfully, wantonly, or through gross

negligence.” 20

        Proof of gross negligence requires both an objective and a subjective component.

When viewed objectively from the standpoint of the defendant landowner, the act or

omission in question must involve an extreme degree of risk and likelihood of serious

injury to the plaintiff, considering the probability and magnitude of the potential harm to

others. 21 In addition, it must be shown through direct or circumstantial evidence that the

defendant landowner had actual subjective knowledge of the danger involved but

nevertheless proceeded in conscious indifference to the rights, safety, or welfare of

others. 22

        A premises owner may not intentionally injure a trespasser. 23 A possessor who

creates a condition intended to harm trespassers or sets a trap to protect its property from

trespassers can be liable to the trespasser for injuries caused by the condition or trap. 24

                  a.     Duty Owed to Tolerated Trespasser. In situations of repeated and

tolerated trespassing, a trespasser can be treated as a licensee if: (1) the possessor has

actual knowledge of the trespassing; 25 and (2) after learning of the trespassing, the

possessor does not take any action (such as erecting fencing, posting signage, etc.) to

prevent or discourage the trespassing. 26 If the action to discourage or prevent the trespass



20
   Texas Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997).
21
   Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 325, 341 (Tex. App.—Corpus Christi 2002, no
pet.); Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 163 (Tex. App.—Waco 1995, no writ).
22
   Id.; West v. City of Crandall, 139 S.W.3d 784, 788 (Tex. App.—Dallas 2004, no pet.).
23
   San Antonio & A.P. Ry. v. Morgan, 46 S.W. 28, 29 (Tex. 1898).
24
    Marquis v. Benfer, 298 S.W.2d 601, 604 (Tex. App.—San Antonio 1956, writ ref’d n.r.e.);
RESTATEMENT (2D) OF TORTS §333 cmt. d.
25
   General Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 835 (Tex. App.—Dallas 2000, no
pet).
26
   Id.


                                                IV-4
is unduly burdensome or would be futile, the possessor is not required to take action. 27

Otherwise, such landowners will be held to have implicitly allowed the trespass, and the

courts will afford the trespasser the status of licensee.

                 b.       Duty Owed to Discovered Trespasser.                    Once a landowner

discovers a trespasser’s presence, the landowner owes the discovered trespasser a duty of

reasonable care under general negligence principles and can be liable to the trespasser for

injuries caused by the owner’s actions and not just by a dangerous condition of the

land. 28 This duty includes the owner’s obligation to take reasonable steps to warn or

protect a discovered trespasser who is in imminent danger. 29

                 c.       Duty Owed to Trespasser with Emergency/Necessity.                      Under

certain circumstances, when plaintiffs enter onto an owner’s premises as a result of

necessity or emergency, even though they enter without permission or invitation, the

Plaintiffs are considered licensees and not trespassers. 30

                 d.       Duty Owed to Volunteer Rescuer. Volunteer rescuers who enter

onto the owner’s property without permission or invitation are treated as licensees, not

trespassers, if they enter the premises in order to rescue someone in danger or to reduce

the risk to the premises or the general public. 31

        5.       Defendant’s breach proximately caused Plaintiff’s injury. Finally, the

trespasser Plaintiff must prove that Defendant’s breach of duty proximately caused


27
   Id.
28
   Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); PROSSER & KEETON ON TORTS §58, at 396-97.
29
   RESTATEMENT (2D) OF TORTS §336 cmt. d, §337.
30
   See Carr v. Mobile Video Tapes, Inc., 893 S.W.2d 613, 624 (Tex. App.—Corpus Christi 1994, no writ)
(holding that Humane Society employee was entitled to defense of necessity and status as licensee when he
entered land without permission after learning of mistreated animals); Buffalo Mar. Serv. v. Monteau, 761
S.W.2d 416, 420 (Tex. App.—Houston [14th Dist.] 1988, no writ) (holding that boat owner who tied boat to
moored barge without permission during hurricane was a licensee).
31
   Pifer v. Muse, 984 S.W.2d 739, 742-43 (Tex. App.—Texarkana 1998, no pet.).


                                                 IV-5
Plaintiff’s injury. 32     Proximate cause requires two elements: cause-in-fact and

forseeability. “The test for cause-in-fact, or ‘but-for’ causation, is whether (1) the act or

omission was a substantial factor in causing the injury and (2) without the act or omission

the harm would not have occurred.” 33 “Foreseeability requires only that the general

danger, not the exact sequence of events that produced the harm, be foreseeable.” 34

B.      Statute of Limitations

        As with other negligence claims, the statute of limitations for premises liability

claims brought by trespassers is two years. 35

C.      Remedies Available

        Generally, successful trespassers in a premises liability action are entitled to

recover the same actual damages for personal injury and for damage to personal property

as are successful invitees or licensees. 36        However, because liability to a trespasser

hinges upon proof that the defendant possessor was grossly negligent, a successful

trespasser case requires proof of willful, wanton, or gross negligence before actual

damages can be awarded. Thus, recovery of exemplary damages likely requires proof of

something greater.       Due to the small number of cases filed by plaintiffs claiming

trespasser status, there is no clear Texas case law setting forth the legal requirements or

standard of recovery for exemplary damages in a trespasser cases. Trespasser plaintiffs

seeking recovery of exemplary damages should therefore be prepared to plead and prove

by clear and convincing evidence that the Defendant was both grossly negligent and

32
   LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
33
   Id.
34
   Timberwalk Apts., Partners v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).
35
   TEX. CIV. PRAC. & REM. CODE ANN. § 16.003. For Texas cases applying § 16.003 to premises liability
claims, see Pirtle v. Kahn, 177 S.W.3d 567, 570 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) and
Brinker v. Looney, 135 S.W.3d 280, 284 (Tex. App.—Fort Worth 2004, no pet.).
36
   See Brown v. Frontier Theaters, Inc., 369 S.W.2d 299, 303 (Tex. 1963) (awarding personal property
damage award in a premises liability case).


                                               IV-6
acted with malicious intent to injure the trespasser.37 Finally, as with invitee and licensee

cases, court costs and pre- and postjudgment interest are also recoverable, but attorneys’

fees are not recoverable in a premises liability action.




845338




37
     See TEX. CIV. PRAC. & REM. CODE ANN. 41.001(7, 11) (defining “malice” and “gross negligence”).


                                                   IV-7
V.   CLAIMS UNDER THE ATTRACTIVE-NUISANCE DOCTRINE

     A.   Elements of Claims ................................................................................. V-1
          1.    The child Plaintiff met the definition of trespasser..................... V-2
          2.    Defendant was an owner or possessor of the premises............... V-2
          3.    Defendant knew or should have known there was an
                artificial condition on the premises............................................. V-2
          4.    Defendant knew or should have known children were likely
                to trespass in the area around the artificial condition ................. V-3
          5.    Defendant knew or should have known or realized the
                artificial condition posed an unreasonable risk of death or
                serious bodily harm to trespassing children................................ V-4
          6.    Plaintiff, due to youth, did not discover the artificial
                condition, or realize the risk involved in meddling with it,
                or realize the risk involved in coming within the area made
                dangerous by the condition. ........................................................ V-4
          7.    The benefit to Defendant in maintaining the artificial
                condition and the burden of eliminating the danger were
                slight when compared with the risk to children. ......................... V-5
          8.    Defendant breached its duty of exercising reasonable care
                by failing to eliminate the danger or otherwise protect
                the children.................................................................................. V-6
          9.    Defendant’s breach proximately caused Plaintiff’s injury.......... V-6

     B.   Statute of Limitations.............................................................................. V-7

     C.   Remedies Available ................................................................................ V-7
      V.       CLAIMS UNDER THE ATTRACTIVE-NUISANCE DOCTRINE

A.      Elements of Claims

        The Attractive Nuisance Doctrine operates as an exception to premises liability

claims brought by trespassers. Texas courts have indicated that the Doctrine should be

employed “with caution” and should be applied only to cases whose facts fall “well

within” the contours of the rule. 1 As to young children who trespass onto property as the

result of some attraction on the premises, the Attractive Nuisance Doctrine provides that

the premises owner owes the trespassing child the same legal duties it would owe a

rightful invitee. 2 For the Attractive Nuisance Doctrine to apply, Plaintiff must meet and

prove the following required elements:

        •        The child Plaintiff met the definition of trespasser;

        •        Defendant was an owner or possessor of the premises;

        •        Defendant knew or should have known there was an artificial condition on
                 the premises;

        •        Defendant knew or should have known children were likely to trespass in
                 the area around the artificial condition;

        •        Defendant knew or should have known or realized the artificial condition
                 posed an unreasonable risk of death or serious bodily harm to trespassing
                 children;

        •        Plaintiff, due to youth, did not discover the artificial condition, or realize
                 the risk involved in meddling with it, or realize the risk involved in
                 coming within the area made dangerous by the condition;

        •        The benefit to Defendant in maintaining the artificial condition and the
                 burden of eliminating the danger were slight when compared with the risk
                 to children;


1
  Banker v. McLaughlin, 208 S.W.2d 843, 850 (Tex. 1948); see also Brownfield v. Missouri-Pacific R.R..
Co., 794 S.W.2d 773, 777 (Tex. App.—Houston [14th Dist.] 1990, writ denied); Courtright v. Southern
Compress & Warehouse, 299 S.W.2d 169, 174 (Tex. Civ. App.—Galveston 1957, no writ).
2
  Texas Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997); Banker, 208 S.W.2d at 847.


                                                 V-1
        •        Defendant breached its duty of exercising reasonable care by failing to
                 eliminate the danger or otherwise protect the children; and

        •        Defendant’s breach proximately caused Plaintiff’s injury. 3

Each of these elements is discussed in greater detail below.

        1.       The child plaintiff met the definition of trespasser. The child must

have entered Defendant’s premises without permission or authority, and for the child’s

own benefit. For a more detailed definition and discussion of trespasser status, please see

Section IV-A-1 herein.

        2.       Defendant was an owner or possessor of the premises. As discussed in

greater detail in Section I-B herein, to succeed on a premises liability claim, Plaintiff

must prove that Defendant was a possessor controlling the premises where the alleged

injury occurred. 4 Governmental units are immune from attractive nuisance claims. 5

        3.       Defendant knew or should have known there was an artificial

condition on the premises. Naturally occurring conditions such as lakes, rivers, trees,

or creeks that have not been created or altered by the premises owner do not obligate the

premises owner to take measures of warning or protection. 6                 Similarly, other natural

conditions such as insects nests or live animals will not upgrade a claimant’s status from

trespasser to invitee, even if the other required elements are met, as the unreasonable risk


3
  Timmons, 947 S.W.2d at 193-94; RESTATEMENT (SECOND) OF TORTS §339 (1965).
4
  See Wilson v. Texas Parks & Wildlife Dept., 8 S.W.3d 634, 635 (Tex. 1999) (finding an absence of
evidence that the state agency defendant controlled the river where the plaintiff drowned); Thornhill v.
Ronnie’s I-45 Truck Stop, Inc., 944 S.W.2d 780, 788 (Tex. App.—Beaumont 1997, writ dism’d) (defining
“possessor” as a defendant that exercised control over the subject premises); Cameron City v. Velazquez,
668 S.W.2d 776, 780 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.) (confirming that the plaintiff
bears the burden of proving that the defendant controlled the premises).
5
  TEX. CIV. PRAC. & REM. CODE ANN. §101.059 (Vernon 2005). For a more detailed discussion about
waiver of immunity under the Texas Tort Claims Act and the lack of waiver in asserting claims under the
attractive nuisance doctrine, please see Section VII herein.
6
  Banker, 208 S.W.2d at 858; Woolridge v. East Texas Baptist Univ., 154 S.W.3d 257, 259 (Tex. App.—
Texarkana 2005, no writ) .


                                                 V-2
of serious bodily injury must arise from the artificial condition itself and not from

dangerous insects or animals in or near the artificial condition. 7

        Only premises conditions that are artificially created and maintained can give rise

to a claim within the scope of the Attractive Nuisance Doctrine. 8 However, for liability

to exist, only Defendant’s knowledge (or the fact that Defendant should have known) of

the artificial condition on the premises must be proven; it is not necessary to show that

Defendant itself created or maintained the artificial condition in question. 9 Examples of

artificial conditions found by the courts to qualify under the Attractive Nuisance Doctrine

include: electric transmission towers; 10 dipping vats for cattle; 11 large pits filled with

water; 12 and cement irrigation pipes. 13

        4.      Defendant knew or should have known children were likely to

trespass in the area around the artificial condition.              Plaintiff must prove that

Defendant knew or should have known children were likely to trespass in the area of the

artificial condition. 14 Unless or until Defendant receives information that would lead a

reasonable person to inquire whether children are trespassing onto the land, the

Defendant does not have an affirmative duty to inspect or inquire whether trespassing is

actually taking place. 15    Once Defendant knows, or when a person of reasonable




7
   Hall v. Edlefson, 498 S.W.2d 514, 516 (Tex. App.—Waco 1973, no writ); Gowen v. Willenborg, 366
S.W.2d 695, 697-98 (Tex. App.—Houston [1st Dist.] 1963, writ ref’d n.r.e.).
8
   Woolridge, 154 S.W.3d at 259 (citing Hooper v. M.M. Cattle Co., 278 S.W.2d 170, 172 (Tex. Civ.
App.—Amarillo 1955, writ ref’d n.r.e.)).
9
  RESTATEMENT (SECOND) OF TORTS §339 cmt. d (1965).
10
   Timmons, 947 S.W.2d at 192.
11
   Eaton v. R.B. George Inves., 260 S.W.2d 587, 589-90 (Tex. 1953).
12
   Massie v. Copeland, 233 S.W.2d 449, 451 (Tex. 1950); Banker, 208 S.W.2d at 845-46.
13
   Luna v. H&A Inv., 900 S.W.2d 735, 737 (Tex. App.—Corpus Christi 1994, no writ).
14
   Timmons, 947 S.W.2d at 193-94; RESTATEMENT (SECOND) OF TORTS §339(a).
15
   RESTATEMENT (SECOND) OF TORTS §339 cmt. h.


                                              V-3
intelligence would know, that children are likely to enter the property in the area of the

condition, knowledge of trespass will be imputed to Defendant. 16

        5.      Defendant knew or should have known or realized the artificial

condition posed an unreasonable risk of death or serious bodily harm to trespassing

children. Plaintiffs suing under the Attractive Nuisance Doctrine must prove that the

artificial condition on the premises posed an unreasonable risk of harm. 17                     The

determination is dependent upon whether a reasonably prudent person would foresee that

harm was a likely result of the condition.18 By law, certain conditions do not qualify

under the Attractive Nuisance Doctrine. For example, courts have held that the open and

obvious danger inherent in playground equipment removes such a condition from the

purview of the Attractive Nuisance Doctrine. 19

        6.      Plaintiff, due to youth, did not discover the artificial condition, or

realize the risk involved in meddling with it, or realize the risk involved in coming

within the area made dangerous by the condition. Although the Attractive Nuisance

Doctrine requires the child Plaintiff to qualify as a trespasser before application, neither

Texas case law nor the Restatement (Second) of Torts place a specific age requirement for

Plaintiff to qualify as a “child.”20 However, despite the absence of a bright-line age limit,

“in the great majority of the cases in which the [doctrine] has been applied, the plaintiff

has been a child of not more than twelve years of age.” 21




16
   Id. at §339 cmt. g; Burk Royalty Co. v. Pace, 620 S.W.2d 882, 885 (Tex. App.—Tyler 1981, no writ).
17
   Timmons, 947 S.W.2d at 194; RESTATEMENT (SECOND) OF TORTS §339(b).
18
   Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 537 (Tex. 1975).
19
   Kopplin v. City of Garland, 869 S.W.2d 433, 441 (Tex. App.—Dallas 1993, writ denied).
20
    Burk Royalty Co. v. Pace, 620 S.W.2d 882, 885 (Tex. App.—Tyler 1981, no writ); RESTATEMENT
(SECOND) OF TORTS §339 (1965).
21
   Timmons, 947 S.W.2d at 196 (quoting RESTATEMENT (SECOND) OF TORTS §339, cmt. c (1965)).


                                                V-4
        Regardless of age, it must be established that the Plaintiff, as a matter of law, was

too young and immature to appreciate the danger of the artificial condition.22 Factors

such as the child’s intelligence relative to peers in her age group or whether she suffered

from any mental challenges, as well as the latency or hidden nature of the dangerous

condition may be considered by the courts when assessing the Plaintiff’s capacity to

recognize and appreciate the danger in question. 23            However, even in cases where the

Plaintiff is either exceptionally bright or unusually learning disabled, the child will be

expected to exercise the judgment of a person of that level of intelligence. “A child of

tender years is not required to conform to the standard of behavior which it is reasonable

to expect of an adult. His conduct is to be judged by the standard of behavior to be

expected of a child of like age, intelligence, and experience.”24

        In short, to prove the required incapacity, the child must be able to show that her

youth and/or mental development prevented her from discovering the condition, realizing

the risk presented by the condition, or realizing the risk in entering the area made

dangerous by the condition. 25

        7.       The benefit to Defendant in maintaining the artificial condition and

the burden of eliminating the danger were slight when compared with the risk to

children. Plaintiff must also prove that the benefit to Defendant in maintaining the

artificial condition as a legitimate use of his land and the burden of eliminating the

danger were slight when weighed against the severity of the risk to children posed by the


22
   Timmons, 947 S.W.2d at 195-96.
23
   See Entergy Gulf States, Inc. v. Isom, 143 S.W.3d 486, 491 (Tex. App.—Beaumont 2004, pet. denied)
(latent danger); Kopplin v. City of Garland, 869 S.W.2d 433, 441 (Tex. App.—Dallas 1993, writ denied)
(hidden or latent danger); Soledad v. Lara, 762 S.W.2d 212, 213-14 (Tex. App—El Paso 1988, writ
dism’d) (child who was mentally slow).
24
   Soledad, 762 S.W.2d at 214 (quoting RESTATEMENT (SECOND) OF TORTS §283A at 15).
25
   Timmons, 947 S.W.2d at 194; Isom, 143 S.W.3d at 491-92.


                                                 V-5
artificial condition. 26 Examples of cases where the severity of danger to children greatly

outweighed the burden imposed on the premises owner to safeguard the danger include a

case where a child drowned in a cattle dipping vat that had not been used for more than

two years and could have been covered and sealed with two hours’ labor and $30 worth

of materials, 27 and a case where Defendant could have simply and inexpensively erected

a fence around an oil well pumping unit to deter children from climbing on the unit and

suffering injury. 28 In contrast, courts have held that moving trains and railroad trestles do

not satisfy this required element of Attractive Nuisance Doctrine, as railroads perform a

vital social function, trains must cross whatever terrain lies alongside the trestles, and

eliminating any danger posed would necessitate highly significant intervention. 29

          8.     Defendant breached its duty of exercising reasonable care by failing to

eliminate the danger or otherwise protect the children. Qualifying Plaintiffs under

the Attractive Nuisance Doctrine are owed the same duties as are owed to invitees;

namely, the duty to warn of or eliminate the dangerous condition. 30 For a more detailed

discussion of the duties premises possessors owe to invitees, please see Section II-A-5

herein.

          9.     Defendant’s breach proximately caused Plaintiff’s injury. Plaintiff

must prove that Defendant’s breach of duty proximately caused Plaintiff’s injury. 31

Proximate cause requires two elements: cause-in-fact and forseeability. “The test for

cause-in-fact, or ‘but-for’ causation, is whether (1) the act or omission was a substantial


26
   Timmons, 947 S.W.2d at 194; RESTATEMENT (SECOND) OF TORTS §339(d) (1965).
27
   Eaton v. R.B. George Inv., 260 S.W.2d 587, 591 (Tex. 1953).
28
   Burk Royalty Co. v. Pace, 620 S.W.2d 882, 885-86 (Tex. App.—Tyler 1981, no writ).
29
   Brownfield v. Missouri-Pacific R. Co., 794 S.W.2d 773, 778 (Tex. App.—Houston [14th Dist.] 1990, writ
denied).
30
   Timmons, 947 S.W.2d at 193; RESTATEMENT (SECOND) OF TORTS §339(e).
31
   LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).


                                                  V-6
factor in causing the injury and (2) without the act or omission the harm would not have

occurred.” 32 “Foreseeability requires only that the general danger, not the exact sequence

of events that produced the harm, be foreseeable.” 33

B.       Statute of Limitations

         As with other negligence claims, the statute of limitations for premises liability

claims governed by the Attractive Nuisance Doctrine is two years. 34

C.       Remedies Available

         Generally, the same remedies available in a negligence case are available in a

premises liability case, including those falling under the Attractive Nuisance Doctrine.

Plaintiffs succeeding on premises liability claims brought under the Attractive Nuisance

Doctrine can recover actual damages for personal injury and for damage to personal

property, 35 and exemplary damages if gross negligence is proven and actual damages are

awarded. 36    Court costs and pre- and postjudgment interest are also recoverable.

Attorneys fees are not recoverable in a premises liability action.




845340




32
   Id.
33
   Timberwalk Apartments., Partners v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).
34
   TEX. CIV. PRAC. & REM. CODE ANN. § 16.003. For Texas cases applying § 16.003 to premises liability
claims, see Pirtle v. Kahn, 177 S.W.3d 567, 570 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) and
Brinker v. Looney, 135 S.W.3d 280, 284 (Tex. App.—Fort Worth 2004, no pet.).
35
   See Brown v. Frontier Theaters, Inc., 369 S.W.2d 299, 303 (Tex. 1963) (awarding personal property
damage award in a premises liability case).
36
    TEX. CIV. PRAC. & REM. COD ANN. §§ 41.003, 41.005. See, e.g., Lincoln Prop. Co. v. DeShazo, 4
S.W.3d 55, 62-63 (Tex. App.—Fort Worth 1999, pet. denied) (awarding exemplary damages to patron
assaulted in defendant’s parking lot).


                                                V-7
VI.   CLAIMS UNDER THE RECREATIONAL USE STATUTE

      A.   Elements of Claims ................................................................................ VI-1
           1.    Defendant is the owner, lessee, or occupant of agricultural
                 land or other real property.......................................................... VI-2
           2.    Defendant permitted or invited Plaintiff to enter the
                 premises for the purpose of engaging in recreation ................... VI-2
                 a.       Permission or invitation to enter premises..................... VI-2
                 b.       Use of premises for recreational purposes ..................... VI-4
           3.    Plaintiff’s bodily or property injury occurred on
                 Defendant’s premises................................................................. VI-5
           4.    If a private landowner Defendant either: (a) Did
                 not charge Plaintiff for entry onto the premises;
                 (b) Charged Plaintiff for entry onto the premises
                 subject to statutory annual limits, or (c) Effected liability
                  insurance coverage on its agricultural land in amounts
                 greater than or equal to the RUS’s damage cap amounts .......... VI-5
           5.    A condition on the premises posed an unreasonable risk
                 of harm ....................................................................................... VI-6
           6.    Defendant breached its duty of care by acting willfully,
                 wantonly, or with gross negligence ........................................... VI-6
           7.    Defendant’s breach proximately caused Plaintiff’s injury......... VI-7

      B.   Statute of Limitations............................................................................. VI-7

      C.   Remedies Available ............................................................................... VI-8
            VI.    CLAIMS UNDER THE RECREATIONAL USE STATUTE

        Chapter 75 of the Texas Civil Practice & Remedies Code, also known as the

Recreational Use Statute, limits liability of landowners to claimants who use the land for

recreational purposes. 1       When applicable, the Recreational Use Statute effectively

downgrades a claimant’s status to that of trespasser and limits a defendant’s owed duties

accordingly.      Thus, like the established law addressing premises liability claims by

trespassers, the Recreational Use Statute (hereinafter, “RUS”) is generally raised by

defendants as a way of narrowing their owed duty and avoiding liability. Originally

enacted by the Texas Legislature in 1965 as protection to those providing land for

hunting, fishing, or camping, the RUS has since been amended to apply to many

additional recreational activities, and aims to “encourage private landowners to open their

land for public recreation free of charge by reducing the possibility of lawsuits by persons

injured on the premises.” 2 In exchange for being allowed free recreational access to

another’s land, a claimant must accept that a lower standard of care is owed. 3

A.      Elements of Claims

        Though no Texas case specifically itemizes all of the required elements under the

RUS, the following circumstances must exist to trigger application of the RUS:

        •         Defendant is the owner, lessee, or occupant of agricultural land or other
                  real property;

        •         Defendant permitted or invited Plaintiff to enter the premises for the
                  purpose of engaging in recreation;


1
  See generally TEX. CIV. PRAC. & REM. CODE §75.001 – §75.003 (Vernon Supp. 2008).
2
  Lipton v. Wilhite, 902 S.W.2d 598, 600 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (citing Act of
May 30, 1981, 67th Leg., R.S., ch. 349, 1981 Tex.Gen.Laws 934, 934; Act of May 15, 1989, 71st Leg.,
R.S., ch. 736, § 2, 1989 Tex.Gen.Laws 3299, transcripts of floor proceedings in the House of
Representatives and testimony before the House Judiciary Committee).
3
  Id.


                                                 VI-1
        •       Plaintiff’s bodily or property injury occurred on Defendant’s premises;

        •       Defendant either: (a) Did not charge Plaintiff for entry onto the premises;
                (b) Charged Plaintiff for entry onto the premises subject to statutory
                annual limits, or (c) Effected liability insurance coverage on its
                agricultural land in amounts greater than or equal to the RUS’s damage
                cap amounts;

        •       A condition on the premises posed an unreasonable risk of harm;

        •       Defendant breached its duty of care by acting willfully, wantonly, or with
                gross negligence; and

        •       Defendant’s breach proximately caused Plaintiff’s injury. 4

        As stated above, application of the RUS generally will be raised procedurally in

the manner of a defense, but Plaintiff retains the burden of proving the required elements.

Each element is discussed in greater detail below.

        1.      Defendant is the owner, lessee, or occupant of agricultural land or

other real property. To succeed on a premises liability action covered by the RUS,

Plaintiff must prove that Defendant was the owner, lessee, or occupant of the agricultural

land or other real property in question. 5

        2.      Defendant permitted or invited Plaintiff to enter the premises for the

purpose of engaging in recreation. Plaintiff must also prove that Defendant either

permitted or invited Plaintiff to enter the premises for the purpose of engaging in

recreational activities. 6 This element is two-fold.

                a.      Permission or Invitation to Enter Premises. First, Plaintiff must

have been invited or permitted by Defendant to enter the premises. If the premises in



4
  See generally TEX. CIV. PRAC. & REM. CODE §75.001 – §75.003; City of Bellmead v. Torres, 89 S.W.3d
611, 613 (Tex. 2002); McMillan v. Parker, 910 S.W.2d 616, 619 (Tex. App.—Austin 1995, writ denied).
5
  TEX. CIV. PRAC. & REM. CODE §75.002 (a-c) (Vernon Supp. 2008).
6
  TEX. CIV. PRAC. & REM. CODE §75.002 (b-c) (Vernon Supp. 2008).


                                               VI-2
question satisfy the statute’s definition of agricultural land, 7 application of the RUS is the

same regardless of whether the recreational users were permitted or invited onto the

premises by Defendant. 8 In such instances involving recreational use of agricultural

land, Plaintiffs are legally viewed as trespassers in terms of liability. 9 If, however, the

land in question is “real property other than agricultural land,” successful application of

the RUS appears to depend upon whether the Plaintiffs were permitted entry onto the

land for recreational use or whether the Plaintiffs were invited onto the nonagricultural

land. Under the RUS, if Defendant permits Plaintiff to enter nonagricultural premises for

recreation, Plaintiff is treated as a trespasser in terms of duty owed and Defendant’s

liability exposure. 10 In contrast, the statute’s language makes no such allowance when

Defendant invites Plaintiff to enter the nonagricultural premises for recreational

purposes. 11 Thus, the plain language of the RUS does not appear to apply to recreational

users invited onto (rather than permitted to use) nonagricultural land. 12

         The logical interpretation of this distinction in the RUS’s statutory language is

that the omission of recreational users invited onto nonagricultural land is a specific

statutory attempt to remove social guests from the umbrella of protection afforded by the

RUS, although the term “social guest” is not used in this portion of the statute. This

interpretation is supported by Section 75.003(h) of the RUS, which specifically covers


7
  See TEX. CIV. PRAC. & REM. CODE §75.001(1) (Vernon Supp. 2008) (defining “agricultural land” as “land
that is located in this state and that is suitable for: (A) use in production of plants and fruits grown for
human or animal consumption, or plants grown for the production of fibers, floriculture, viticulture,
horticulture, or planting seed; (B) forestry and the growing of trees for the purpose of rendering those trees
into lumber, fiber, or other items used for industrial, commercial, or personal consumption; or (C) domestic
or native farm or ranch animals kept for use or profit.”)
8
  TEX. CIV. PRAC. & REM. CODE §75.002(b) (Vernon Supp. 2008).
9
  Id. at §75.002(b).
10
   Id. at §75.002(c).
11
   Id.
12
   Id.


                                                    VI-3
social guests not charged a fee for recreational entry onto agricultural land. 13 Texas

courts have held that the RUS does not apply to social guests invited onto the premises,

although they have done so without regard to or discussion of whether the premises at

issue qualified as agricultural or nonagricultural under the statute. 14

                 b.       Use of Premises for Recreational Purposes. The second part of the

element requires that the premises be used for recreational purposes. An abundance of

recreational activities fall within the scope of the RUS. Under the terms of the RUS,

“recreation” is defined as “an activity such as: (A) hunting; (B) fishing; (C) swimming;

(D) boating; (E) camping; (F) picnicking; (G) hiking; (H) pleasure driving; (I) nature

study, including bird-watching; (J) cave exploration; (K) waterskiing and other water

sports; or (L) any other activity associated with enjoying nature or the outdoors.” 15

Texas courts have stated that the statutory list is not exhaustive 16 and have included

visiting parks and playing on playgrounds and swings on the list of recreational activities

covered by the RUS. 17

        When the premises is owned, operated, or maintained by a governmental unit, the

RUS expands the statutory definition of “recreation” to include the recreational examples

listed above, plus hockey, in-line hockey, skating, in-line skating, roller-skating,




13
   TEX. CIV. PRAC. & REM. CODE §75.003(h) (Vernon Supp. 2008).
14
   Lipton v. Wilhite, 902 S.W.2d 598, 600 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (holding that
the RUS did not apply to social guests); McMillan v. Parker, 910 S.W.2d 616, 619 (Tex. App.—Austin
1995, writ denied) (holding that the RUS did not apply to social guests, without discussing whether the
ranchland premises in question satisfied the statutory definition of “agricultural land”).
15
   TEX. CIV. PRAC. & REM. CODE §75.001(3) (Vernon Supp. 2008).
16
   Kopplin v. City of Garland, 869 S.W.2d 433, 441 (Tex. App.—Dallas 1993, writ denied) (citing Martinez
v. Harris County, 808 S.W.2d 257, 259 (Tex.App.-Houston [1st Dist.] 1991, writ denied) and Harris
County v. Eaton, 573 S.W.2d 177, 179 (Tex.1978)).
17
   City of Bellmead v. Torres, 89 S.W.3d 611, 614-15 (Tex. 2002); City of Lubbock v. Rule, 68 S.W.3d 853,
858 (Tex. App.—Amarillo 2002, no pet.); Kopplin, 869 S.W.2d at 441.


                                                 VI-4
skateboarding, and roller-blading. 18       For such a premises, the governmental unit is

required to post and maintain in a visible location a clearly readable sign that includes the

following warning language:

                                           WARNING

        TEXAS LAW (CHAPTER 75, CIVIL PRACTICE AND REMEDIES
        CODE) LIMITS THE LIABILITY OF A GOVERNMENTAL UNIT FOR
        DAMAGES ARISING DIRECTLY FROM HOCKEY, IN-LINE
        HOCKEY, SKATING, IN-LINE SKATING, ROLLER-SKATING,
        SKATEBOARDING, ROLLERBLADING, PAINTBALL USE, OR
        SOAP BOX DERBY USE ON PREMISES THAT THE
        GOVERNMENTAL UNIT OWNS, OPERATES, OR MAINTAINS FOR
        THAT PURPOSE. 19

        3.      Plaintiff’s bodily or property injury occurred on Defendant’s

premises. For the RUS to apply, Plaintiff’s injury must have occurred on Defendant’s

premises. 20 The RUS defines “premises” to include “land, roads, water, watercourse,

private ways, and building, structures, machinery, and equipment attached to or located

on the land, road, water, watercourse, or private way.” 21

        4.      If a private landowner, Defendant either: (a) Did not charge Plaintiff

for entry onto the premises; (b) Charged Plaintiff for entry onto the premises

subject to statutory annual limits, or (c) Effected liability insurance coverage on its

agricultural land in amounts greater than or equal to the RUS’s damage cap

amounts. If Defendant is a governmental entity, this element of the RUS need not be




18
   TEX. CIV. PRAC. & REM. CODE §75.002(e) (Vernon Supp. 2008).
19
   Id. at §75.002(g).
20
   Id. at §75.002(b-c).
21
   Id. at §75.001(2).


                                               VI-5
proven. The RUS applies to governmental entity Defendants regardless of whether they

charge fees for premises entry or carry liability insurance. 22

        If Defendant is a private landowner, however, Plaintiff must establish one of three

scenarios in order to succeed on a claim governed by the RUS. First, Plaintiff can prove

that Defendant did not charge a fee for entry onto the premises. 23 Second, Plaintiff can

alternatively prove that Defendant charged a fee for premises entry, but that the total

amount of fees for recreational use of the premises collected during the previous calendar

year was equal to or less than the amount of 20 times the total ad valorem taxes imposed

on the premises for the previous calendar year. 24 Third, if the premises in question

qualify as agricultural land, Plaintiff can alternatively prove that Defendant had liability

insurance coverage in effect that covered Defendant’s acts or omissions related to the

premises resulting in damages to Plaintiff, in an amount of at least $1,000,000 for each

single occurrence of bodily injury or death or for injury or destruction of property. 25

        5.      A condition on the premises posed an unreasonable risk of harm. As

with all premises liability actions, Plaintiff must also prove that the premises condition

posed an unreasonable risk of harm. 26 The determination of danger is dependent upon

whether a reasonably prudent person would foresee that harm was a likely result of the

condition. 27

        6.      Defendant breached its duty of care by acting willfully, wantonly, or

with gross negligence. When the RUS applies, Defendant owes Plaintiff the same duty

22
   TEX. CIV. PRAC. & REM. CODE §75.003(c) (Vernon 2005); Texas Dep’t. of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 225 (Tex. 2004); State v. Shumake, 131 S.W.3d 66, 76 (Tex. App.—Austin 2003), aff’d,
199 S.W.3d 279 (Tex. 2006).
23
   TEX. CIV. PRAC. & REM. CODE §75.003(c)(1) (Vernon 2005).
24
   Id. at §75.003(c)(2).
25
   Id. at §75.003(c)(3); TEX. CIV. PRAC. & REM. CODE §75.004(a-b) (Vernon Supp. 2008).
26
   LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
27
   Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 537 (Tex. 1975).


                                               VI-6
as it would owe a trespasser; namely, the duty not to injure Plaintiff willfully, wantonly,

or through gross negligence. 28 For further discussion of the required proof for actions

that are willful, wanton, or grossly negligent, please see Section IV-A-4 herein. As in

cases with trespasser claims, Defendants falling within the protection of the RUS do not

owe Plaintiffs a duty of ordinary care to maintain the premises in a reasonably safe

condition. 29

        7.         Defendant’s breach proximately caused Plaintiff’s injury. As with

other premises liability claims, Plaintiff must prove that Defendant’s breach of duty

proximately caused Plaintiff’s injury. 30 Proximate cause requires two elements: cause-in-

fact and forseeability. “The test for cause-in-fact, or ‘but-for’ causation, is whether (1)

the act or omission was a substantial factor in causing the injury and (2) without the act

or omission the harm would not have occurred.” 31 “Foreseeability requires only that the

general danger, not the exact sequence of events that produced the harm, be

foreseeable.” 32

B.      Statute of Limitations

        Here again, the statute of limitations for premises liability claims governed by the

Recreational Use Statute is two years. 33




28
   Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004); TEX. CIV. PRAC. & REM.
CODE §75.002.
29
   Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326, 340 (Tex. App.—Corpus Christi 2002, no
pet.); TEX. CIV. PRAC. & REM. CODE §75.002 (Vernon Supp. 2008).
30
   LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
31
   Id.
32
   Timberwalk, 972 S.W.2d at 756.
33
   TEX. CIV. PRAC. & REM. CODE §16.003 (Vernon Supp. 2008). For Texas cases applying §16.003 to
premises liability claims, see Pirtle v. Kahn, 177 S.W.3d 567, 570 (Tex. App.—Houston [1st Dist.] 2005,
pet. denied) and Brinker v. Looney, 135 S.W.3d 280, 284 (Tex. App.—Fort Worth 2004, no pet.).


                                                VI-7
C.      Remedies Available

        To further its purpose of encouraging landowners to allow the public to enjoy

outdoor recreational use of their property, the RUS caps the recoverable damages a

recreational user can recover from an owner, lessee, or occupant of agricultural land who

has liability insurance coverage in effect on the land pursuant to Texas Civil Practice &

Remedies Code §75.004. Under this Section, bodily injury damages per person are

capped at $500,000, damages for each single occurrence of bodily injury or death are

capped at $1,000,000, damages for each single occurrence of property damage or

destruction are capped at $100,000, and a defendant’s total liability for each single

occurrence is capped at $1,000,000. 34 The text of the §75.004 damages cap applies only

to agricultural land, which is defined by the RUS as follows:

        ‘Agricultural land’ means land that is located in this state and that is
        suitable for:

                (A)     use in production of plants and fruits grown for human or
                        animal consumption, or plants grown for the production of
                        fibers, floriculture, viticulture, horticulture, or planting
                        seed;

                (B)     forestry and the growing of trees for the purpose of
                        rendering those trees into lumber, fiber, or other items used
                        for industrial, commercial, or personal consumption; or

                (C)     domestic or native farm or ranch animals kept for use or
                        profit. 35

The damages cap does not apply to governmental entity Defendants. 36

        Otherwise, RUS claimants are entitled to recover the same actual damages for

personal injury and for damage to personal property as are successful invitees or


34
   TEX. CIV. PRAC. & REM. CODE §75.004(a) (Vernon Supp. 2008).
35
   TEX. CIV. PRAC. & REM. CODE §75.001(1) (Vernon Supp. 2008)
36
   TEX. CIV. PRAC. & REM. CODE §75.004(d) (Vernon Supp. 2008).


                                               VI-8
licensees. 37 However, as with claims by trespassers, because liability to an RUS plaintiff

hinges upon proof that the defendant was grossly negligent, a successful RUS case

requires proof of willful, wanton, or gross negligence before actual damages can be

awarded. Thus, recovery of exemplary damages in an RUS case likely requires proof of

something greater than these. RUS plaintiffs seeking recovery of exemplary damages

should be prepared therefore to plead and prove by clear and convincing evidence that the

Defendant was both grossly negligent and acted with malicious intent to injure. 38

Finally, as with other premises liability cases, court costs and pre- and postjudgment

interest are also recoverable, but attorneys’ fees are not recoverable.




845345




37
   See Brown v. Frontier Theaters, Inc., 369 S.W.2d 299, 303 (Tex. 1963) (awarding personal property
damage award in a premises liability case).
38
   See TEX. CIV. PRAC. & REM. CODE 41.001(7, 11) (Vernon 2008) (defining “malice” and “gross
negligence”).


                                               VI-9
VII.   CLAIMS UNDER THE TEXAS TORT CLAIMS ACT

       A.   Elements of Claims ...............................................................................VII-1
            1.    The defendant is a governmental unit and a
                  possessor of the premises..........................................................VII-2
                  a.      Emergency Service Organization Liability...................VII-2
            2.    A condition on the premises posed an unreasonable risk
                  of harm ......................................................................................VII-3
            3.    Whether the condition was a premise defect or a
                  special defect.............................................................................VII-3
            4.    Whether the defendant breached its duty of ordinary care by
                  both failing to adequately warn of the condition and by
                  failing to make the condition reasonably safe..........................VII- 3
                  a.      TTCA Premise Defect Claims ......................................VII-4
                  b.      TTCA Special Defect Claims .......................................VII-5
            5.    The defendant’s breach proximately caused the plaintiff’s
                  Injuries ......................................................................................VII-7
            6.    The defendant would be liable under Texas law if the
                  defendant were a private person ..............................................VII- 7
            7.    Proper notice was provided under the TTCA ...........................VII-7

       B.   Statute of Limitations............................................................................VII-8

       C.   Remedies Available ..............................................................................VII-8
            1.    Damages Cap Against State Government Defendant ...............VII-8
            2.    Damages Cap Against a Local Government Defendant ...........VII-9
            3.    Damages Cap Against a Municipality Defendant.....................VII-9
            4.    Damages Cap Against an Emergency Service
                  Organization Defendant ............................................................VII-9
            5.    Application of Damage Caps with Proportionate
                  Responsibility .........................................................................VII-10

       D.   Exceptions...........................................................................................VII-11
            1.     Recreational Use Statute .........................................................VII-11
            2.     Payment to Use Premises........................................................VII-11
            3.     Defective or Missing Traffic Control Devices........................VII-11
            4.     School and Junior College Districts........................................VII-12
            5.     Attractive Nuisance Doctrine..................................................VII-12
             VII.   CLAIMS UNDER THE TEXAS TORT CLAIMS ACT

        The State of Texas and other governmental units are protected from lawsuits and

liability by the doctrine of sovereign immunity. The Texas Tort Claims Act (“TTCA”),

found in Chapter 101 of the Texas Civil Practice and Remedies Code, statutorily waives

sovereign immunity and allows for the filing of lawsuits and the finding of liability in

premises liability cases. The TTCA provides that “a governmental unit in the state is

liable for personal injury and death so caused by a condition or use of tangible personal

or real property if the governmental unit would, were it a private person, be liable to the

claimant according to Texas law.” 1

A.      Elements of Claims

        All TTCA claimants must plead and prove the following elements of their cause

of action:

        •       the defendant is a governmental unit and a possessor of the premises;

        •       a condition on the premises posed an unreasonable risk of harm;

        •       whether the condition was a premise defect or a special defect;

        •       the defendant breached its duty of ordinary care by both failing to
                adequately warn of the condition and by failing to make the condition
                reasonably safe;

        •       the defendant’s breach proximately caused the plaintiff’s injuries;

        •       the defendant would be liable under Texas law if the defendant were a
                private person; and

        •       proper notice was provided under the TTCA. 2




1
 TEX. CIV. PRAC. & REM. CODE ANN. §101.021(2) (Vernon 2005).
2
 See TEX. CIV. PRAC. & REM. CODE ANN. §§101.012(2), 101.101(a) (Vernon 2005); TEX. GOV’T CODE
§311.034 (Vernon Supp. 2006); State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996).


                                             VII-1
        1.      The defendant is a governmental unit and a possessor of the premises.

The TTCA plaintiff must plead and prove that the defendant qualifies as a governmental

unit. TTCA defines “governmental unit” as:

        (A)     this state and all the several agencies of government that
                collectively constitute the government of this state, including other
                agencies bearing different designations, and all departments,
                bureaus, boards, commissions, offices, agencies, councils, and
                courts;

        (B)     a political subdivision of this state, including any city, county,
                school district, junior college district, levee improvement district,
                drainage district, irrigation district, water improvement district,
                water control and improvement district, water control and
                preservation district, freshwater supply district, navigation district,
                conservation and reclamation district, soil conservation district,
                communication district, public health district, and river authority;

        (C)     an emergency service organization; and

        (D)     any other institution, agency, or organ of government the status
                and authority of which are derived from the Constitution of Texas
                or from laws passed by the legislature under the constitution. 3

The governmental unit must have owned, occupied, or had the right to control the

premises at the time the injury occurred. 4

                a.      Emergency Service Organization Liability.         Emergency service

organizations are specifically included in the TTCA’s definition of “governmental units”

subject to liability for premises liability claims. Although the TTCA retains immunity for

claims against emergency service organizations that arise from the actions of a

governmental employee in responding to an emergency call or reaction to an emergency

action, 5 such organizations may not be shielded from premises liability claims. Because

premises liability claims arise from the governmental unit’s direct duty owed for defects

3
  TEX. CIV. PRAC. & REM. CODE ANN. §101.001(3) (Vernon 2005).
4
  County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002).
5
  TEX. CIV. PRAC. & REM. CODE ANN. §101.055 (Vernon 2005).


                                              VII-2
on its premises rather than from the derivative duty owed for actions of its employees, 6

the emergency service organization may be subject to liability for premises defect

claims. 7

        2.       A condition on the premises posed an unreasonable risk of harm.

The TTCA plaintiff must prove that a condition on the premises posed an unreasonable

risk of harm. 8 The determination of danger is dependent upon whether a reasonably

prudent person would foresee that harm was a likely result of the condition. 9 It is not

necessary that the specific of the injury be foreseeable; rather, only the general danger of

the condition need be foreseen. 10

        3. and 4.         Whether the condition was a premise defect or a special defect

and whether the defendant breached its duty of ordinary care by both failing to

adequately warn of the condition and by failing to make the condition reasonably

safe.

        The distinction as to whether the alleged defect was a premise defect or a special

defect alters the duty owed to the plaintiff by the government defendant. 11 Unlike non-

governmental premises defect cases where the duty owed by the defendant is determined

by the status of the claimant as invitee, licensee or trespasser, TTCA claims determine

duty obligations by first looking at whether the injury-causing defect was a premise




6
  Texas Dep’t of Transp. v. Able, 35 S.W.3d 608, 612 (Tex. 2000).
7
  Cf. City of Arlington v. Whitaker, 977 S.W.2d 742, 745-46 (Tex. App.—Fort Worth 1998, pet. denied)
(granting immunity to an act of employee negligence during emergency response when a special defect
claim was asserted); City of Corinth v. Gladys, 916 S.W.2d 618, 622 (Tex. App.—Fort Worth 1996, no
writ) (holding immunity defense unavailable in premises liability suit).
8
  Brown, 80 S.W.3d at 554.
9
  Id. at 556; Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 537 (Tex. 1975).
10
   Brown, 80 S.W.3d at 556.
11
   TEX. CIV. PRAC. & REM. CODE ANN. §101.022 (Vernon Supp. 2008).


                                                VII-3
defect or a special defect. Identifying a property defect as a premise defect or a special

defect is a question of law. 12

                 a.      TTCA Premise Defect Claims.               Most claims brought under the

TTCA involve premise defects rather than special defects. 13                   Premise defects are

defective conditions (a condition qualifies as a “defect” if it is an imperfection,

shortcoming, flaw, or ‘want of something necessary for completion’ 14 ) occurring on real

property (defined as land and anything erected on, growing on, or affixed to the land 15 ) or

premises (defined as a building or partial building, its parts, grounds, and

appurtenances 16 ). Texas courts have found the following to be examples of TTCA

premise defects: cracked or worn sidewalk steps, 17 icy bridges, 18 water meter box

holes, 19 pipe couplings extending above sidewalks, 20 slippery floors, 21 vegetation that

obstructs a driver’s view of traffic, 22 water in a street gutter,23 depression in highway, 24

off-road culverts, 25 and visible pieces of metal lying on a road’s shoulder. 26

        In general, plaintiffs asserting premise defect claims against the government are

owed the same duty owed to a licensee on private property. The government is obligated

to refrain from willfully, wantonly or grossly negligently injuring the plaintiff. The

12
   City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997).
13
   Corbin v. City of Keller, 1 S.W.3d 743, 746-47 (Tex. App.—Fort Worth 1999, pet. denied).
14
   Cobb v. TDCJ, 965 S.W.2d 59, 62 (Tex. App.—Houston [1st Dist.] 1998, no pet.).
15
   Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 229-30 (Tex. 2004).
16
   Cobb v. TDCJ, 965 S.W.2d 59, 62 (Tex. App.—Houston [1st Dist.] 1998, no pet.); Billstrom v. Memorial
Med. Ctr., 598 S.W.2d 642, 646 (Tex. App.—Corpus Christi 1980, no writ).
17
   City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999); City of Grapevine v. Roberts, 946 S.W.2d
841, 843 (Tex. 1997).
18
   State Dep’t. of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993).
19
   Bishop v. City of Big Spring, 915 S.W.2d 566, 569 (Tex. App.—Eastland 1995, no writ).
20
   Stokes v. City of San Antonio, 945 S.W.2d 324, 327-28 (Tex. App.—San Antonio 1997, no writ).
21
   Cobb v. TDJC, 965 S.W.2d 59, 62 (Tex. App.—Houston [1st Dist.] 1998, no pet.).
22
   Sipes v. Texas Dep’t of Transp., 949 S.W.2d 516, 521 (Tex. App.—Texarkana 1997, writ denied).
23
   City of Fort Worth v. Gay, 977 S.W.2d 814, 819 (Tex. App.—Fort Worth 1998, no pet.).
24
   Sutton v. State Highway Dep’t., 549 S.W.2d 59, 61 (Tex. App.—Waco 1977, writ ref’d n.r.e.).
25
   Sipes, 949 S.W.2d at 520.
26
   Id.


                                                VII-4
government is also obligated to warn of or make safe premise conditions posing

unreasonable risks of harm to the plaintiff when the government has actual knowledge of

such conditions and the danger they pose and the plaintiff does not have such

knowledge. 27      When filing initial pleadings in a TTCA premise defect claim, the

plaintiff’s and defendant’s knowledge or lack thereof of the defect at issue should also be

plead as required elements.

                         b.      TTCA Special Defect Claims.               When a TTCA claim

against a governmental unit involves a special defect as opposed to a regular premise

defect, claimants are entitled to invitee status and are owed a higher duty of care.28

Special defects usually involve excavations or obstructions on highways, roads, or

streets, 29 although this statutory list is not exclusive. 30 In determining whether a defect

outside the statutory list constitutes a special defect, Texas courts will examine: the size

of the condition; 31 whether the condition threatens and impairs ordinary users of the

roadway; 32 whether the condition is located on the roadway or close enough to the

roadway that it impairs the user’s ability to travel the roadway; 33 and whether the

condition posed an unexpected and unusual danger that impairs use.34 Texas courts have

found the following to be examples of TTCA special defects: 10-inch shoulder drop-off

preventing a vehicle’s re-entry onto roadway, 35 two-foot deep floodwater across a



27
   TEX. CIV. PRAC. & REM. CODE ANN. §101.021(2) (Vernon 2005); State v. Williams, 940 S.W.2d 583, 584
(Tex. 1996).
28
   City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997).
29
   TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b) (Vernon Supp. 2008).
30
   State Dep’t. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992).
31
   County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978).
32
   Payne, 838 S.W.2d at 238.
33
   Id.; Snow v. Texas Dep’t of Transp., 13 S.W.2d 889, 893 (Tex. App.—Amarillo 2000, no pet.).
34
   State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994); Snow, 13 S.W.3d at 893.
35
   Morse v. State, 905 S.W.2d 470, 475 (Tex. App.—Beaumont 1995, writ denied).


                                               VII-5
highway, 36 large metal sign lying in road lane,37 caved-in portion of roadway, 38 slick and

muddy roadway, 39 uncovered storm sewer hole in path of pedestrian traffic, 40 loose

gravel on post-construction roadway, 41 six-to-ten inch holes covering a large portion of

the roadway, 42 and excavations or roadway obstructions involving discretionary

placement of signs or traffic control devices. 43             The following conditions do not

constitute special defects: depression in highway, 44 absence of guardrails and concrete

median, 45 road that increased 50% in width then decreased 30% in width without

warning signs or barriers, 46 22-foot culvert running perpendicular to highway and

extending into field, 47 icy bridge during winter, 48 or cracking and eroding sidewalk. 49

        In general, plaintiffs asserting special defect claims under the TTCA are owed the

same duty owed to a invitee on private property. When a governmental unit knows or

reasonably should know of a condition that poses an unreasonable risk of harm, it is

obligated to use ordinary care to reduce or eliminate the risk posing the harm to the

plaintiff by making the condition reasonably safe or adequately warning of the danger. 50




36
   Miranda v. State, 591 S.W.2d 568, 569-70 (Tex. App.—El Paso 1979, no writ).
37
   State v. Williams, 932 S.W.2d 546, 550 (Tex. App.—Tyler 1995, writ denied).
38
   Graham v. Tyler Cty., 983 S.W.2d 882, 885 (Tex. App.—Beaumont 1998, no pet.).
39
   State v. McBride, 601 S.W.2d 552,558 (Tex. App.—Waco 1980, writ ref’d n.r.e.).
40
   Harris Cty. v. Smoker, 934 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1996, writ denied).
41
   Texas Dep’t of Transp. v. O’Malley, 28 S.W.3d 652, 656 (Tex. App.—Corpus Christi 2000, pet. denied).
42
   County of Harris v. Eaton, 573 S.W.2d 177, 178-79 (Tex. 1978).
43
   TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.060(c), 101.022 (Vernon 2005 and Vernon Supp. 2008).
44
   Sutton v. State Highway Dep’t., 549 S.W.2d 59, 61 (Tex. App.—Waco 1977, writ ref’d n.r.e.).
45
   Mogayzel v. Texas Dep’t of Transp., 66 S.W.3d 459, 466 (Tex. App.—Fort Worth 2001, per denied).
46
   City of Mission v. Cantu, 89 S.W.3d 795, 809 (Tex. App.—Corpus Christi 2002, no pet.).
47
   Payne, 838 S.W.2d at 239.
48
   State Dep’t. of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1992).
49
   City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999); City of Grapevine v. Roberts, 946 S.W.2d
841, 843 (Tex. 1997).
50
   Payne, 838 S.W.2d at 237.


                                                VII-6
To successfully establish breach of duty in this type of claim, a plaintiff must obtain a

finding that the defendant neither warned nor eliminated the dangerous condition. 51

        5.       The defendant’s breach proximately caused the plaintiff’s injuries.

The TTCA plaintiff must prove that the defendant’s breach of duty proximately caused

the alleged injury. 52        Proximate cause requires two elements: cause-in-fact and

forseeability. “The test for cause-in-fact, or ‘but-for’ causation, is whether (1) the act or

omission was a substantial factor in causing the injury and (2) without the act or omission

the harm would not have occurred.” 53 “Foreseeability requires only that the general

danger, not the exact sequence of events that produced the harm, be foreseeable.”54

        6.       The defendant would be liable under Texas law if the defendant were

a private person.          The TTCA plaintiff must show that the governmental defendant

would be liable under Texas law if the defendant were a private person. 55

        7.       Proper notice was provided under the TTCA.                       Finally, the TTCA

plaintiff must prove it gave proper notice of the claim. If given in writing, proper notice

to a governmental unit defendant must contain a description of the damage or injury

claimed, the time and place of the incident, and the incident itself, and must be given no

later than six months after the day that the incident occurred. 56 Formal written notice is

not required if the governmental unit has actual notice of the alleged injury. 57




51
   State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996); City of San Antonio v. Rodriguez, 931 S.W.2d 535,
536 (Tex. 1996).
52
   Payne, 838 S.W.2d at 237.
53
   Id.
54
   Timberwalk Apts., Partners v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).
55
   TEX. CIV. PRAC. & REM. CODE ANN. §101.021(2); City of Grapevine v. Roberts, 946 S.W.2d 841, 843
(Tex. 1997).
56
   TEX. CIV. PRAC. & REM. CODE ANN. §101.101(a).
57
   TEX. CIV. PRAC. & REM. CODE ANN. §101.101(c).


                                                 VII-7
B.      Statute of Limitations

        As with other negligence and premises liability claims, the statute of limitations

for premises liability claims brought under the TTCA is two years. 58

C.      Remedies Available

        The TTCA allows for recovery of monetary damages for personal injury and

death claims, but prohibits recovery of money for property damage unless the property

damage is caused by a governmental employee’s wrongful operation or use of a motor-

driven vehicle or equipment within his scope of employment. 59 Exemplary damages are

not recoverable under the TTCA. 60 Moreover, Section 101.023 of the TTCA limits the

dollar amount of liability that can be assessed against a governmental defendant

depending upon the defendant’s classification. 61

        1.       Damages Cap Against State Government Defendant.                                 Section

101.023(a) of the TTCA limits liability of a state government defendant to monetary

damages in a maximum amount of $250,000 per person and $500,000 per single

occurrence. If property damages are recoverable (see Section VII-C above), monetary

damages are capped at $100,000 for each single occurrence. 62 The TTCA defines “state

government” as an agency, board, commission, department, or office, other than a district

or authority created under Article XVI, Section 59, of the Texas Constitution, that was

created by Texas Constitution or statute and has statewide jurisdiction. 63



58
   TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon Supp. 2008). For Texas cases applying § 16.003
to premises liability claims, see Pirtle v. Kahn, 177 S.W.3d 567, 570 (Tex. App.—Houston [1st Dist.] 2005,
pet. denied) and Brinker v. Looney, 135 S.W.3d 280, 284 (Tex. App.—Fort Worth 2004, no pet.).
59
   TEX. CIV. PRAC. & REM. CODE ANN. §101.021 (Vernon 2005).
60
   Id. at §101.024.
61
   Id. at §101.023.
62
   Id. at §101.023(a).
63
   Id. at §101.001(6).


                                                 VII-8
        2.       Damages Cap Against a Local Government Defendant.                            Section

101.023(b) of the TTCA limits liability of a local government defendant to monetary

damages in a maximum amount of $100,000 per person and $300,000 per person. If

property damages are recoverable (see Section VII-C above), monetary damages are

capped at $100,000 for each single occurrence. 64 The TTCA does not specifically define

“local government” but Texas case law indicates that counties, 65 school districts, 66

hospital authorities 67 and community centers 68 qualify as local governments.

        3.       Damages Cap Against a Municipality Defendant.                   Section 101.023(c)

of the TTCA limits liability of a municipality defendant to monetary damages in a

maximum amount of $250,000 per person and $500,000 per single occurrence.                            If

property damages are recoverable (see Section VII-C above), monetary damages are

capped at $100,000 for each single occurrence.69 A “municipality” may be home-rule,

general-law, or special-law, and is defined by the Texas Local Government Code.70

        4.       Damages       Cap     Against     an    Emergency        Service     Organization

Defendant.        Section 101.023(d) of the TTCA limits liability of an emergency service

organization defendant to monetary damages in a maximum amount of $100,000 per

person and $300,000 per single occurrence. If property damages are recoverable under

TTCA Section 101.021 (see Section VII-C above) and the property damage was not

64
   TEX. CIV. PRAC. & REM. CODE ANN. §101.023(b).
65
   See Harris County v. White, 823 S.W.2d 385, 386 (Tex. App.—Texarkana 1992, no writ) (parties did not
appeal issue of County’s liability amount).
66
   Canutilo Indep. Sch. Dist. v. Olivares, 917 S.W.2d 494, 498 (Tex.App.—El Paso 1996, no writ).
67
   Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 83 (Tex. 1997) (Hecht, J., concurring); Huckabay v.
Irving Hosp. Auth., 879 S.W.2d 64, 65-66 (Tex. App.—Dallas 1993, writ dism’d).
68
   Castillo v. Tropical Tex. Ctr. for MHMR, 962 S.W.2d 622, 625 (Tex. App.—Corpus Christi 1997, no
pet.). See also TEX. HEALTH & SAFETY CODE §534.001(c)(1) (Vernon Supp. 2008) n(stating that a
community center is “an agency of the state, a governmental unit, and a unit of local government, as
defined and specified by Chapters 101 and 102, Civil Practice and Remedies Code.”).
69
   TEX. CIV. PRAC. & REM. CODE ANN. §101.023(c).
70
   TEX. LOC. GOV’T CODE §§ 1.005(1), 5.004, 5.005 (Vernon 2008).


                                                VII-9
caused by a fire department’s reasonable and necessary actions in putting out a fire on the

damaged property, monetary damages are capped at $100,000 for each single

occurrence. 71    The TTCA defines “emergency service organization” as a volunteer fire

department, rescue squad, or an emergency medical services provider that is operated by

its members and state tax-exempt. 72

        5.       Application of Damages Caps with Proportionate Responsibility.

The concepts of proportionate responsibility, contribution, joint and several liability, and

responsible third parties are discussed in detail in Section IX herein. Texas case law

dictates how and when the TTCA damage caps are applied in the context of proportionate

responsibility. After a plaintiff obtains a verdict, the verdict damages must be reduced by

an amount equal to the plaintiff’s percentage of responsibility found by the trier of fact, 73

and further reduced by any settlement credits to which the defendants are entitled. 74 The

settlement credits must be applied before the TTCA damage cap is applied. 75 Then, after

prejudgment interest is added, 76 any TTCA damage caps under Section 101.023 are

applied. 77   Once the capped verdict amount is determined, then the defendant’s

percentage of responsibility for the capped verdict, including any application of joint and

several liability, is determined.




71
   TEX. CIV. PRAC. & REM. CODE ANN. §101.023(d) (Vernon 2005).
72
   Id. at §101.001(1).
73
   Id. at §33.012(a) (Vernon 2008).
74
   Id. at §33.012(b).
75
   Edinburg Hospital Authority v. Trevino, 941 S.W.2d 76, 82 (Tex. 1997).
76
   See Texas Dep’t of Transp. v. Ramming, 861 S.W.2d 460, 468-69 (Tex. App.—Houston [14th Dist.] writ
denied) (prejudgment interest is subject to §101.023 cap).
77
   Tarrant County Water Control & Improvement Dist. v. Crossland, 781 S.W.2d 427, 438 (Tex. App.—
Fort Worth 1989, writ denied), disapproved on other grounds, City of Dallas v. Mitchell, 870 S.W.2d 21
(Tex. 1994); University of Texas at El Paso v. Nava, 701 S.W.2d 71, 72 (Tex. App.—El Paso 1985, no
writ).


                                               VII-10
D.      Exceptions

        As discussed above, in most cases involving premise defects, governmental unit

defendants owe plaintiffs the same duty owed a licensee, and in cases involving special

defects, they owe plaintiffs the same duty owed an invitee.

        1.      Recreational Use Statute.         However, when a claim involves an injury

on government property used for recreation and the Recreational Use Statute applies, the

governmental unit’s owed duty to the claimant is reduced to that duty owed to a

trespasser. For a complete discussion of the duties owed under the RUS, please see

Section VI herein.

        2.      Payment to Use Premises.          Furthermore, if the claim centers around a

premise defect on property plaintiff paid to use, but NOT property used for recreational

purposes, the governmental unit owes plaintiff the higher duty owed to an invitee. 78 Entry

fees paid to use park premises 79 and payment for medical treatment at a hospital where a

slip and fall occurred 80 have been found to constitute payment for use of premises,

entitling plaintiffs to duties owed to invitees. Premise defects on a toll highway, road or

street do not qualify the plaintiff as a paying customer entitled to invitee status; in such

claims, a plaintiff is owed the same duties owed to a licensee.81

        3.      Defective or Missing Traffic Control Devices.              Furthermore,      waiver

of immunity does not occur when claims arise from a governmental unit’s discretionary

decision against installation and placement of a traffic control device, or when claims


78
   TEX. CIV. PRAC. & REM. CODE ANN. §101.022(a) (Vernon Supp. 2008); Clay v. City of Fort Worth, 90
S.W.3d 414, 417 (Tex. App.—Austin 2002, no pet.); UTMB v. Davidson, 882 S.W.2d 83, 85 (Tex. App.—
Houston [14th Dist.] 1994, no writ).
79
   Texas Parks & Wildlife Dep’t. v. Davis, 988 S.W.2d 370, 374-75 (Tex. App.—Austin 1999, no pet.).
80
   M.D. Anderson Hosp. & Tumor Inst. v. Felter, 837 S.W.2d 245, 247-48 (Tex. App.—Houston [1st Dist.]
1992, no writ).
81
   TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(c) (Vernon Supp. 2008).


                                              VII-11
arise from absent or malfunctioning traffic control devices if the governmental unit

corrects the problem within a reasonable time period after receiving actual or constructive

notice. 82 Nor is immunity waived when a third party removes or destroys a traffic control

device unless the governmental unit fails to replace the device within a reasonable time

after receiving actual notice.83 In such cases, premises claims are barred.

         However, a governmental unit retains the duty to warn plaintiffs of special defects

such as excavations or roadway obstructions, even when those defects involve

discretionary placement of signs or traffic control devices. 84 In such instances, there is

no waiver of immunity and the governmental unit owes plaintiffs the same duty owed to

an invitee. 85

         4.      School and Junior College Districts.                 The TTCA does not waive

immunity for premises defect claims against school or junior college districts. 86 Thus,

such claims against these defendants are barred.

         5.      Attractive Nuisance Doctrine.               The TTCA does not waive a

governmental unit’s immunity for premises defect claims based upon the doctrine of

attractive nuisance. 87 Thus, such claims are barred.




845352




82
    TEX. CIV. PRAC. & REM. CODE ANN. § 101.060(a)(2) (Vernon 2005); State v. Gonzalez, 82 S.W.3d 322,
327 (Tex. 2002); Texas Dep’t of Transp. v. Garza, 70 S.W.3d 802, 807 (Tex. 2002).
83
    TEX. CIV. PRAC. & REM. CODE ANN. § 101.060(a)(3) (Vernon 2005).
84
    Id. at § 101.060(c).
85
   . §§ 101.022 (Vernon Supp. 2008), 101.060(c) (Vernon 2005).
86
    Id. at § 101.051 (Vernon Supp. 2008).
87
    Id. at § 101.059.


                                               VII-12
VIII. PREMISES LIABILITY DEFENSES

     A.   Defenses Available in All Premises Liability Claims......................... VIII-1
          1.    Defendant was Not a Possessor .............................................. VIII-1
                a.     Defendant was a Former Owner ................................. VIII-2

     B.   Specific Defenses Against Invitee Claims.......................................... VIII-3
          1.     Plaintiff was a Licensee .......................................................... VIII-3
          2.     Plaintiff was a Trespasser ....................................................... VIII-3
          3.     Plaintiff’s lease contractually excuses Defendant................... VIII-3
          4.     Plaintiff was injured by an independent contractor ................ VIII-4
          5.     Plaintiff was an independent contractor injured by
                 an open and obvious defect..................................................... VIII-4

     C.   Specific Defenses Against Licensee Claims....................................... VIII-5
          1.     Plaintiff was a Trespasser ....................................................... VIII-5
          2.     Plaintiff was Owed a Limited Duty Under the
                 “Firefighter’s Rule” ................................................................ VIII-5

     D.   Specific Defenses Against Trespasser Claims.................................... VIII-6

     E.   Specific Defenses Against Attractive-Nuisance Claims..................... VIII-6
          1.     Plaintiff was Over 16 Years of Age when Injured on
                 Agricultural Land Used for Recreational Purposes ................ VIII-6

     F.   Specific Defenses Against Recreational Use Claims.......................... VIII-6
          1.     Plaintiff Asserting Attractive Nuisance was Over 16
                 Years of Age ........................................................................... VIII-7

     G.   Specific Defenses Under the Texas Tort Claims Act ......................... VIII-7
          1.     Plaintiff’s claim is based upon the Attractive Nuisance
                 Doctrine................................................................................... VIII-7
          2.     Defendant is a school or junior college district ...................... VIII-7
          3.     Plaintiff’s traffic control device claim fails to justify
                 waiver of immunity................................................................. VIII-8
                      VIII. PREMISES LIABILITY DEFENSES

A.     Defenses Available in All Premises Liability Claims

       Some standard defenses available in negligent activity or other types of cases are

also applicable in premises liability cases. For example:

       •       The statute of limitations will prevent a finding of liability if Plaintiff’s

lawsuit filing occurs more than two years after the premises liability cause of action

accrues.

       •       If a new and independent cause that is not reasonably foreseeable is the

immediate cause of Plaintiff’s alleged injury, Defendant can avoid liability.

       •       If a responsible third party caused or contributed to the alleged injury,

Defendant may avoid liability.

       •       If Defendant can prove that fault for Plaintiff’s injury can be attributed to

Plaintiff’s own acts or omissions, Defendant is entitled to a jury submission on the issue

of proportionate responsibility to lessen or avoid liability.

       •       If a Defendant is entitled to assert immunity, it will not be liable. Other

available defenses are specific to premises liability causes of action.

       As we have seen, all premises liability actions share certain required elements

regardless of the status of the plaintiff asserting the claim. Disproof of any of these

shared elements can be utilized by a defendant to avoid premises liability, regardless of

whether the claim is brought by an invitee, licensee or trespasser, or whether the claim is

asserted under the Attractive Nuisance Doctrine or Texas Tort Claims Act.

       1.       Defendant was not a possessor. For any premises liability claim, it is a

defense that Defendant did not qualify as a possessor of the premises in question. As



                                            VIII-1
discussed in the Overview Section I-B of this manual, a premises liability Defendant

must be proven to have been a possessor of the premises in question, 1 and must be

proven to have controlled the premises. 2                (Recall that the issue of control can be

established by proving Defendant had the right to control, such as under the terms of a

contract or lease, or by evidence that Defendant exercised actual control of the premises

with a proprietary state of mind or to the extent that the Defendant had a duty to remedy

alleged dangers on the premises. 3 ) Proof that the Defendant did not own, occupy or

control the premises disproves possessor status and avoids premises liability. 4

                  a.       Defendant was a Former Owner. Defendants most susceptible to

liability in a premises liability action are current owners who had control of the premises

at the time the alleged injury occurred. Generally, former owners of the premises are not

liable for injuries occurring to third parties after the owner sells the property.5 Under

limited circumstances set forth in the Restatement (Second) of Torts, however, former

owners can be held liable. For a finding of premises liability against a former owner, a

plaintiff must prove each of the following:




1
  The RESTATEMENT (SECOND ) OF TORTS §328E (1965) defines “possessor” as: “(a) a person who is in
occupation of the land with the intent to control it, or (b) a person who has been in occupation of the land
with intent to control it, if no other person has subsequently occupied it with intent to control it, or (c) a
person who is entitled to immediate occupation of the land, if no other person is in possession under clauses
(a) and (b).” See also Thornhill v. Ronnie’s I-45 Truck Stop, Inc., 944 S.W.2d 780, 788 (Tex. App.—
Beaumont 1997, writ dism’d) (a defendant qualifies as a possessor if it “owned, occupied, or controlled”
the premises in question).
2
  Gunn v. Harris Methodist Affiliated Hosp., 887 S.W.2d 248, 252 (Tex. App.—Fort Worth 1994, writ
denied) (defining “control” as “the power or authority to manage, direct, superintend, restrict, regulate,
govern, administer, or oversee”).
3
  Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004); County of Cameron v. Brown, 80 S.W.3d 549,
556 (Tex. 2002).
4
  See Brown, 80 S.W.3d at 554.
5
  Kelly v. LIN TV, L.P., 27 S.W.3d 564, 571 (Tex. App.—Eastland 2000, pet. denied); First Fin. Dev. Corp.
v. Hughston, 797 S.W.2d 286, 291 (Tex. App.—Corpus Christi 1990, writ denied); RESTATEMENT
(SECOND) OF TORTS §§351, 352.


                                                   VIII-2
          •       At the time premises possession was transferred, the former owner
                  knew or should have known that a dangerous condition existed on
                  the premises;

          •       The former owner either failed to disclose the dangerous condition
                  or actively concealed it;

          •       The new owner did not know or have reason to know of the
                  dangerous condition; and

          •       The new owner or a third party entering the premises with the new
                  owner’s consent was inured by the dangerous condition. 6

Unless each of the above elements is proven, Defendant can plead and prove that it was a

former owner and avoid premises liability.

B.        Specific Defenses Against Invitee Claims

          Defendant can avoid liability for a premises liability claim brought by an invitee

by disproving any one of the required elements necessary in those types of claims. For a

detailed discussion of Plaintiff’s required elements for invitee claims, please see Section

II-A herein.

          1.      Plaintiff was a licensee. If Defendant proves Plaintiff’s status was that of

licensee rather than invitee, Defendant may avoid or limit liability based upon the lower

duty of care owed to Plaintiff.

          2.      Plaintiff was a trespasser. If Defendant proves Plaintiff’s status was that

of trespasser rather than invitee, Defendant may avoid or limit liability based upon the

lower duty of care owed to Plaintiff.

          3.      Plaintiff’s lease contractually excuses Defendant. If the cause of action

involves a tenant suing a landlord for injuries caused by an alleged premises defect,




6
    RESTATEMENT (SECOND ) OF TORTS §353.


                                             VIII-3
Defendant can avoid liability if it pleads and proves the presence of a valid contractual

exculpatory clause in the lease agreement. 7

        4.       Plaintiff was injured by an independent contractor. Chapter 95 of the

Texas Civil Practices & Remedies Code limits a property owner’s liability and an injured

party’s potential recovery for certain injuries caused by the acts or omissions of

independent contractors. 8      The limitations of Chapter 95 apply to injury or damage

claims arising from the condition or use of an improvement to real property where the

contractor “constructs, repairs, renovates, or modifies” the improvement. 9           When

Plaintiff (whether an owner, a contractor, a subcontractor, or an employee of a contractor

or subcontractor) alleges negligence or Defendant’s failure to provide a safe workplace

under these circumstances, Defendant is not liable for Plaintiff’s injury, death or property

damage unless: (A) Defendant is the person or entity owning the real property in question

and the property is primarily used for commercial or business purposes; (B) Defendant

exercises or retains some control over the manner in which the independent contractor’s

work was performed; (C) Defendant had actual knowledge of the danger or condition;

and (D) Defendant failed to adequately warn Plaintiff of the danger or condition. 10 If

Chapter 95 applies, Defendant can avoid liability if it can successfully disprove any of

these elements.

        5.       Plaintiff was an independent contractor injured by an open and

obvious defect. An independent contractor or its employee can recover for injury caused




7
  Porter v. Lumbermen’s Inc., 606 S.W.2d 715, 717 (Tex. App.—Austin 1980, no writ).
8
  TEX. CIV. PRAC. & REM. CODE ANN. §§95.001-95.004 (Vernon 2005).
9
  Id. at §95.002(2).
10
   Id. at 95.003;


                                               VIII-4
by a pre-existing defect concealed by the premises owner. 11 However, recent Texas case

law confirms that the “no duty” defense is alive and well in cases involving open and

obvious defects causing injury to independent contractors or their employees. The Texas

Supreme Court recently reiterated that when faced with open and obvious premises

defects, responsibility for deciding the method of performing work, what equipment to

use, and whether employees need warnings lies with the independent contractor and not

with the premises owner. 12 When owners do not retain control over the independent

contractor’s work, they are only obligated to warn the contractors of concealed defects. 13

C.      Specific Defenses Against Licensee Claims

        Defendant can avoid liability for a premises liability claim brought by a licensee

by disproving any one of the required elements necessary in those types of claims. For a

detailed discussion of Plaintiff’s required elements for licensee claims, please see Section

III-A herein.

        1.       Plaintiff was a trespasser. If Defendant proves Plaintiff’s status was that

of trespasser rather than licensee, Defendant may avoid or limit liability based upon the

lower duty of care owed to Plaintiff.

        2.       Plaintiff was owed a limited duty under the “firefighter’s rule.” Under

Texas’ version of the common law “firefighter’s rule,” certain public safety officers such

as police officers and firefighters responding to an emergency are only owed a limited

duty by premises possessors.          Such Plaintiffs will be barred from premises liability

recovery if Defendant proves that there was no known dangerous condition of which

Plaintiff was unaware, Defendant did not injury Plaintiff willfully, wantonly or by gross

11
   Coastal Marine Serv. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999).
12
   General Electric Co. v. Moritz, 257 S.W.3d 211, 216 (Tex. 2008).
13
   Id.


                                               VIII-5
negligence, and Defendant did not injure Plaintiff through active negligence after

Plaintiff’s arrival on the premises. 14

D.      Specific Defenses Against Trespasser Claims

        Defendant can avoid liability for a premises liability claim brought by a trespasser

by disproving any one of the required elements necessary in those types of claims. For a

detailed discussion of Plaintiff’s required elements for trespasser claims, please see

Section IV-A herein.

E.      Specific Defenses Against Attractive Nuisance Claims

        Defendant can avoid liability for a premises liability claim covered by the

Attractive Nuisance Doctrine by disproving any one of the required elements necessary in

those types of claims. For a detailed discussion of Plaintiff’s required elements for

Attractive Nuisance claims, please see Section V-A herein.

        1.      Plaintiff was over 16 years of age when injured on agricultural land

used for recreational purposes. If Plaintiff’s injury arises on agricultural land used for

recreational purposes, the Recreational Use Statute bars Plaintiff from recovering using

the Attractive Nuisance Doctrine as a theory of Defendant’s liability if Plaintiff was over

16 years old at the time of the alleged injury. 15

F.      Specific Defenses Against Recreational Use Claims

        Defendant can avoid liability for a premises liability claim covered by the

Recreational Use Statute by disproving any one of the required elements necessary in

those types of claims. For a detailed discussion of Plaintiff’s required elements for

claims asserted under the Recreational Use Statute, please see Section VI-A herein.

14
   Campus Mgmt. v. Kimball, 991 S.W.2d 948, 950 (Tex. App.—Fort Worth 1999, pet. denied); Peters v.
Detsco, Inc., 820 S.W.2d 38, 40 (Tex. App.—Houston [14th Dist.] 1991, writ denied).
15
   TEX. CIV. PRAC. & REM. CODE ANN. §75.003(b) (Vernon 2005).


                                             VIII-6
        1.      Plaintiff asserting attractive nuisance was over 16 years of age. If

Plaintiff’s injury arises on agricultural land used for recreational purposes, the

Recreational Use Statute bars Plaintiff from recovering using the Attractive Nuisance

Doctrine as a theory of Defendant’s liability if Plaintiff was over 16 years old at the time

of the alleged injury. 16

G.      Specific Defenses Under the Texas Tort Claims Act

        A governmental defendant can avoid liability for a premises liability claim

asserted under the Texas Tort Claims Act by disproving any one of the required elements

necessary in those types of claims. For a detailed discussion of Plaintiff’s required

elements for a TTCA claim, please see Section VII-A herein.

        1.      Plaintiff’s claim is based upon the Attractive Nuisance Doctrine. A

premises liability claim under the Texas Tort Claims Act cannot be based upon the

Attractive Nuisance Doctrine. 17 If Plaintiff’s pleadings bring the cause of action within

the Attractive Nuisance Doctrine, thus reinstating Defendant’s immunity, Defendant

should plead the exception to the TTCA waiver of immunity and move for dismissal of

the claim.

        2.      Defendant is a school or junior college district. School and junior

college districts are entitled to sovereign immunity and may not be sued for premises

liability under the TTCA. 18 In such cases, Defendant should plead the school and junior

college exception to the TTCA waiver of immunity and move for dismissal of the claim.



16
   TEX. CIV. PRAC. & REM. CODE ANN. §75.003(b) (Vernon 2005).
17
   TEX. CIV. PRAC. & REM. CODE AN N. §101.059 (Vernon 2005); Lawrence v. City of Wichita Falls, 906
S.W.2d 113, 116 (Tex. App.—Fort Worth 1995, writ denied).
18
   TEX. CIV. PRAC. & REM. CODE ANN. § 101.051 (Vernon 2005).



                                             VIII-7
         3.     Plaintiff’s traffic control device claim fails to justify waiver of

immunity. For governmental units sued for failure to install a traffic control device, it is

a defense under the TTCA that the governmental unit made no initial decision to install a

traffic control device at the location of the plaintiff’s injury, or that if such installation

decision had been made, a reasonable time had not yet passed. 19 A governmental unit

also retains immunity from liability for the absence, condition, or malfunction of a traffic

control device unless the governmental unit failed to correct the problem within a

reasonable time period after receiving actual or construction notice of the absence,
                              20
condition, or malfunction,         and for the removal or destruction of a traffic control device

by a third party unless the governmental unit fails to replace the device within a

reasonable time after actual notice.21 If Plaintiff’s pleadings bring the cause of action

within the statutory confines of the TTCA’s retention of immunity, Defendant should

plead the exception and move for dismissal of the claim.




845356




19
   TEX. CIV. PRAC. & REM. CODE ANN. § 101.060(a) (Vernon 2005); Ihlo v. State, 71 S.W.3d 494, 497
(Tex. App.—Austin 2002, no pet.).
20
   TEX. CIV. PRAC. & REM. CODE ANN. § 101.060(a)(2) (Vernon 2005); State v. Gonzalez, 82 S.W.3d 322,
327 (Tex. 2002); Texas DOT v. Garza, 70 S.W.3d 802, 807 (Tex. 2002).
21
   TEX. CIV. PRAC. & REM. CODE ANN. § 101.060(a)(3) (Vernon 2005).


                                               VIII-8
IX.   PROPORTIONATE RESPONSIBILITY

      A.   Contribution ........................................................................................... IX-1
           1.     Common Law Definition ........................................................... IX-1
           2.     The Source of Contribution Rights ............................................ IX-1
                  a.       No Common Law Right to Contribution ....................... IX-1
                  b.       Chapter 33...................................................................... IX-2
           3.     Recognizing and Asserting Contribution Rights ....................... IX-2
                  a.       Appropriate Targets ....................................................... IX-3
                  b.       Joint and Several Liability ............................................. IX-4
                  c.       Timely Assertion of the Right to Contribution .............. IX-5
                           i.          Contribution Between Defendants..................... IX-5
                           ii.         Contribution Against Non-Parties...................... IX-6
                           iii.        Statute of Repose ............................................... IX-7
           4.     Application................................................................................. IX-7
                  a.       Assertion of Contribution Rights Among
                           Defendants ..................................................................... IX-7
                  b.       Assertion of Contribution Rights Among
                           Defendants, with Settling Persons ................................. IX-8
                           i.          Application of Settlement Credit ....................... IX-9
                           ii.         Effect of Insolvent Co-Defendant.................... IX-12

      B.   Responsible Third Parties .................................................................... IX-13
           1.    Definition of “responsible third party” .................................... IX-13
           2.    Designation of a responsible third party .................................. IX-13
           3.    Timely joinder of a responsible third party.............................. IX-14
           4.    Effect of designating a responsible third party ........................ IX-14
           5.    Designating an unknown responsible third party..................... IX-15
                         IX.      PROPORTIONATE RESPONSIBILITY

        This section reviews Texas law on proportionate responsibility, joint and several

liability, contribution and the concept of the “responsible third party.” Chapter 33 of the

Texas Civil Practice and Remedies Code governs contribution and responsible third party

practice in Texas. 1

A.      Contribution

        1.       Common Law Definition.              Texas courts have defined contribution as

“the payment by each tortfeasor of his proportionate share of the plaintiff’s damages to

any other tortfeasor who has paid more than his proportionate part.” 2 Scholars have

defined “contribution” as:

        The right to demand that another who is jointly responsible for injury to
        another contribute to the one required to compensate the victim, or the
        actual payment by a joint tortfeasor of his share of what is due. It may
        entail an equal sharing of loss, but in some jurisdictions entails a payment
        proportional to one’s fault. 3

        2.       The Source of Contribution Rights.

                 a.       No Common Law Right to Contribution.                     Under the common

law, there are no rights of contribution among joint tortfeasors. These rights are only

recognized by statute. The principal Texas statutes on contribution are sections 33.015

and 33.016 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE, entitled “Contribution”

and “Claim Against Contribution Defendant,” respectively.




1
  Note that for any pending cases filed prior to July 1, 2003, the version of Chapter 33 in effect prior to
current amendments should be used.
2
  General Motors Corp. v. Simmons, 558 S.W.2d 855, 859 (Tex. 1977), overruled by Duncan v.Cessna
Aircraft Co., 665 S.W.2d 414 (Tex. 1984).
3
  BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 219 (2d ed. 1995).



                                                  IX-1
                 b.       Chapter 33. Before the 1995 amendments to Chapter 33, Chapter

32 governed cases in which the plaintiff pleaded intentional torts in lieu of or in addition

to negligence and products liability theories; Chapter 33, then entitled “Comparative

Responsibility,” governed contribution in negligence and products cases. 4

        In 1995, the Texas legislature renamed Chapter 33 “Proportionate Responsibility”

and broadened its scope to apply “to any cause of action based on tort in which a

defendant, settling person, or responsible third party is found responsible for a percentage

of the harm for which relief is sought” and any action brought under the Texas Deceptive

Trade Practices Act (“DTPA”). 5 There are, however, three exceptions:

        1.       Chapter 33 does not apply to an action to collect workers’ compensation
                 benefits, or to an action against an employer otherwise protected by the
                 workers compensation bar for exemplary damages arising out of the death
                 of an employee. 6

        3.       Chapter 33 does not apply “to a claim for exemplary damages included in
                 an action to which this chapter otherwise applies.” 7 In other words, there
                 is no “proportionate responsibility” for punitive damages, nor is there joint
                 and several liability for such damages. 8

        4.       Chapter 33 does not apply to a cause of action for damages arising from
                 the manufacture of methamphetamine as described by Chapter 99. 9

        3.       Recognizing and Asserting Contribution Rights.                     Two sections of

Chapter 33 create contribution rights. The first states:

        If a defendant who is jointly and severally liable under Section 33.013
        pays a percentage of the damages for which the defendant is jointly and
        severally liable greater than his percentage of responsibility, that
        defendant has a right of contribution for the overpayment against each

4
  Casa Ford, Inc. v. Ford Motor Co., 951 S.W.2d 865, 876 (Tex. App.—Texarkana 1997, pet. denied).
5
  See TEX. CIV. PRAC. & REM. CODE ANN. §33.002(a)(1, 2).
6
  Id. at §33.002(c)(1).
7
  Id. at §33.002(c)(2).
8
  See id. at §41.006 (“In any action in which there are two or more defendants, an award of exemplary
damages must be specific as to a defendant, and each defendant is liable only for the amount of the award
made against that defendant.”).
9
  Id. at §33.002(c)(3).


                                                 IX-2
        other liable defendant to the extent that the other liable defendant has not
        paid the percentage of the damages found by the trier of fact equal to that
        other defendant’s percentage of responsibility. 10

This provision applies to a defendant’s contribution rights against another tortfeasor who

has also been sued by the claimant. The following section permits a defendant to seek

contribution from tortfeasors who have not been sued by the claimant:

        Each liable defendant is entitled to contribution from each person who is
        not a settling person and who is liable to the claimant for a percentage of
        responsibility but from whom the claimant seeks no relief at the time of
        submission. A party may assert this contribution right against any such
        person as a contribution defendant in the claimant’s action. 11

                a.         Appropriate Targets. Anyone jointly responsible for the damages

sought by the claimant is an appropriate target for contribution, whether or not that

person has been sued by the claimant, unless they are a settling person or they have

immunity from the claim.

        A defendant can seek contribution from a “liable defendant,” which is “a

defendant against whom a judgment can be entered for at least a portion of the damages

awarded to the claimant.” 12 A defendant does not have “a right of contribution against

any settling person.” 13

        A defendant has contribution rights against others who qualify as a “contribution

defendant,” defined as “any defendant, counterdefendant, or third-party defendant from

whom any party seeks contribution with respect to any portion of damages for which that




10
   TEX. CIV. PRAC. & REM. CODE ANN. § 33.015(a).
11
   Id. at §33.016(b).
12
   Id. at §33.011(3).
13
   Id. at §33.015(d).


                                               IX-3
party may be liable, but from whom the claimant seeks no relief at the time of

submission.” 14

         Finally, a defendant has no contribution rights against a party who enjoys

immunity from liability to the claimant. 15

                  b.       Joint and Several Liability.         Joint and several liability means that

the plaintiff may collect all damages from one of several defendants even if all

defendants are liable. The defendant that pays the damages cannot protest the decision,

his only recourse is to seek contribution from his liable co-tortfeasors.

         Section 33.013 of the Texas Civil Practice and Remedies Code governs a

defendant’s liability. Chapter 33.013(b) makes a defendant jointly and severally liable

for the entire judgment if:

                  (1)      the percentage of responsibility attributed to the defendant
                           with respect to a cause of action is greater than 50 percent;
                           or

                  (2)      the defendant, with the specific intent to do harm to others,
                           acted in concert with another person to engage in the
                           conduct described in the following provisions of the Penal
                           Code and in doing so proximately caused the damages
                           legally recoverable by the claimant. 16

Section 33.013(b)(2) rarely comes into play. In most cases, a defendant will be held

jointly and severally liable because its liability meets or exceeds the 51% threshold.



14
   Id. at §33.016(a).
15
   See Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 935 (Tex. 1992) (“A defendant’s claim of contribution is
derivative of the plaintiff’s right to recover from the joint defendant against whom contribution is sought.”).
16
   Id. at §33.002(b). Referenced sections of the Penal Code are Sections 19.02 (murder), 19.03 (capital
murder), 20.04 (aggravated kidnapping), 22.02 (aggravated assault), 22.011 (sexual assault), 22.021
(aggravated sexual assault), 22.04 (injury to a child, elderly individual, or disabled individual), 32.32
(forgery), 32,34 (commercial bribery), 32.45 (misapplication of fiduciary property or property of financial
institution), 32.46 (securing execution of document by deception), 32.47 (fraudulent destruction, removal,
or concealment of writing), 21.02 (continuous sexual abuse of young child or children), and conduct
described in Chapter 31 the punishment level for which is a felony of the third degree or higher.


                                                    IX-4
                c.      Timely Assertion of the Right to Contribution.             Texas     courts

have held that defendants must assert their contribution rights against codefendants in the

plaintiff’s lawsuit against them. If a defendant seeks contribution against a party not

named as a defendant (i.e., a third party defendant), then it is not clear whether the

defendant must assert its contribution rights during the plaintiff’s lawsuit or if the

defendant can assert those rights in a subsequent lawsuit.

                        i.       Contribution Between Defendants.               Before 1989, the

contribution statute provided:

        All claims for contribution between named defendants must be determined
        in the primary suit, but a named defendant may sue a person who is not a
        party to the primary suit and who has not effected a settlement with the
        claimant. 17

Thus, named defendants had to assert contribution rights against other parties to the same

suit during that lawsuit. 18 If one defendant sued a new party as a thirdparty/contribution

defendant, then all other defendants had to assert their contribution rights against that

party as well. 19

        Although the statute above was repealed in 1987, there is no subsequent case law

that permits a defendant to assert contribution rights against a co-party in a separate,

subsequent suit. Justice Sarah Duncan, formerly of the San Antonio Court of Appeals,

once stated that contribution rights will be waived if defendants do not bring all




17
   TEX. CIV. PRAC. & REM. CODE ANN. §33.017 (Vernon 1986) (repealed by 70th Leg., 1st C.S., ch. 2, §
2.11B (1987)).
18
   E.g., Mercy Hosp. of Laredo v. Rios, 776 S.W.2d 626, 630 (Tex. App.—San Antonio 1989, writ
denied); Nowsco Serv. Div. of Big Three Indus., Inc. v. Lassman, 686 S.W.2d 197, 199 (Tex. App.—
Houston [14th Dist.] 1984, writ ref'd n.r.e.).
19
   Lane Wood, Inc. v. Grayco Mobile Homes, Inc., 668 S.W.2d 892, 893 (Tex. App.—Houston
[14th Dist.] 1984, no writ).


                                               IX-5
contribution claims against co-parties in the “primary suit” because of res judicata and

the risk of inconsistent jury findings. 20

                          ii.      Contribution Against Non-Parties.             Prior to 1989, Texas

law permitted a defendant to wait and bring a separate, subsequent suit for contribution

against non-parties. One court – the Texarkana Court of Appeals – has since ruled to the

contrary, finding that defendants must assert contribution rights even against nonparties

within the plaintiff’s case. 21 The court reasons that:

        . . . Chapter 33 explicitly does not grant a right to pursue a contribution
        claim against a nonparty after submission of the primary case to the trier
        of fact. Section 33.016(b) grants a right of contribution only to a “liable
        defendant.” A liable defendant, as defined by Section 33.011(3), is “a
        defendant against whom a judgment can be entered for at least a portion of
        the damages awarded to the claimant.” In other words, a liable defendant
        is not a party against which a judgment already has been entered in the
        primary suit. . . . Furthermore, Section 33.016(b) grants the right of
        contribution only against “each person who is not a settling person and
        who is liable to the claimant for a percentage of responsibility.” Because a
        party ceases to be a claimant once judgment is entered (Section
        33.011(1)), no person can be said to be “liable to the claimant” once
        judgment is entered. Therefore, once judgment is entered, Section
        33.016(b) grants contribution rights to nobody. 22

Commentators have expressed skepticism about the court’s reasoning on this point.23

Nonetheless, the case has yet to be overruled and the issue yet to be addressed by the

Texas Supreme Court. Thus, caution dictates that any potential contribution claim be

brought in the instant case.




20
   See Union City Body Co. v. Ramirez, 911 S.W.2d 196, 207-08 (Tex. App.—San Antonio 1995, no writ)
(Duncan, J., dissenting).
21
   See Casa Ford, Inc. v. Ford Motor Co., 951 S.W.2d 865, 875-76 (Tex. App.—Texarkana 1997, pet.
denied).
22
   Id. at 875.
23
   See 19 WILLIAM V. DORSANEO, III, TEXAS LITIGATION GUIDE § 291.02A[3][c] (1998) (“[T]he
court’s reasoning is unconvincing, and there is no convincing policy reason for making contribution or any
remaining indemnity claims compulsory.”).


                                                  IX-6
        Toward that end, Texas Rule of Civil Procedure 38, entitled “Third-Party

Practice”, states that a defendant may implead any non-party “who is or may be liable to

him or to the plaintiff for all or part of the plaintiff’s claim against him.” 24 It requires a

citation to be served on the impleaded party, who is called a third party defendant. The

defendant may file the third-party action without leave of court if done within 30 days

after filing his answer; otherwise, leave of court is required. 25

                         iii.     Statute of Repose.     There is a ten-year statute of repose

for contribution claims against persons who construct or repair improvements to real

property. 26 For example, a roof repairman who is sued by the owner of a ten-year old

building would be barred from seeking contribution from the original builder because of

the statute of repose.

        4.       Application. This section demonstrates how the contribution statute

works in a case not involving responsible third parties.

                 a.      Assertion of Contribution Rights Among Defendants.               The

simplest case is one arising under section 33.015 only, in which the plaintiff has sued

several tortfeasors, who then assert contribution rights against each other.

                                         Hypothetical #1

        Assume that Plaintiff (P) sues Defendants 1, 2, and 3 (D1, D2, D3). The jury finds

damages of $100 and assesses no percentage of responsibility to P, 60% to D1, 20% to

D2, and 20% to D3. D1 is jointly and severally liable for the entire amount since his

percentage of responsibility exceeds 50%. 27 As such, P may collect the entire $100 from


24
   TEX. R. CIV. P. 38(a).
25
   Id.
26
   TEX. CIV. PRAC. & REM. CODE ANN. §6.009(a), (b)(4).
27
   See TEX. CIV. PRAC. & REM. CODE ANN. §33.013(b).


                                                IX-7
D1. If D2 pays more than his share (or more than $60), then he can seek contribution

from D2 and D3, though neither can be compelled to pay more than their share (or $20

each). 28 If D2 or D3 is insolvent, the statute requires the joint and severally liable

Defendant, D1, to bear those defendants’ share of the damages.

                                            Hypothetical #2

         Assume the same facts as above, but the jury returns percentages of 5% to P, 55%

to D1, 25% to D2, and 15% to D3. After reducing the judgment by the percentage

attributed to plaintiff (5%), D1 is jointly and severally liable for the entire remaining

amount, or $95. D2’s share and maximum liability is $25. D3’s share and maximum

liability is $15.

                  b.       Assertion of Contribution Rights Among Defendants, with Settling

Persons.          Calculation of a plaintiff’s recoverable damages post-verdict becomes

complicated when there are multiple tortfeasors and when certain tortfeasors settle with

the plaintiff before or during trial. Settling persons are immune to claims for contribution

and have no rights of contribution against the remaining tortfeasors. 29 However, the

settling party may still be considered by the jury, with a percentage of responsibility

assigned to each settling person, thus enabling any non-settling defendants to reduce their

risk of being jointly and severally liable. And, in the end, TEXAS CIVIL PRACTICE AND

REMEDIES CODE Section 33.012 (b) requires that:

                  If the claimant has settled with one or more persons, the court shall
                  further reduce the amount of damages to be recovered by the



28
   Id. § 33.015(a) (the right of contribution against a liable defendant extends only “to the extent that the
other liable defendant has not paid the percentage of the damages found by the trier of fact equal to that
other defendant’s percentage of responsibility”).
29
   TEX. CIV. PRAC. & REM. CODE ANN. §33.015(d).


                                                   IX-8
                 claimant with respect to a cause of action by the sum of the dollar
                 amounts of all settlements. 30

                          i.      Application of the Settlement Credit. The settlement credit

can be applied in one of two ways. In the event a defendant is jointly and severally

liable, it can claim a credit against the judgment equal to the “sum of the dollar amounts

of all settlements.” 31 A defendant has to be found jointly and severally liable before it is

entitled to apply another tortfeasor’s settlement credit to reduce its own payment of

damages pursuant to CPRC 33.012(b). Texas courts interpret the wording of the relevant

statutes to mean that where the defendant was less than 51% responsible, Section 33.012

did not come into play. Instead, that defendant’s liability was calculated simply based on

its percentage of the “damages found by the trier of fact.” 32 Section 33.012, in turn, did

not come into play with respect to a defendant’s responsibility unless a jury found that

defendant greater than 50% responsible, or jointly and severally liable, for the

occurrence. If that was the case, then 33.013(b) said to look to 33.012 to determine that

defendant’s liability, thus triggering the settlement credit. If the defendant is not jointly

and severally liable, that defendant’s liability is calculated by multiplying his percentage

of responsibility by the amount of damages found by the jury, without taking into account

the settlement. 33

        The Texas Supreme Court in Roberts v. Williamson, however, recently interpreted

Section 33.012(a) to nonetheless provide a method by which a defendant may take


30
   TEX. CIV. PRAC. & REM. CODE ANN. §33.012.
31
   Id. at §33.012(b).
32
   See C&H Nationwide, 903 S.W.2d at 321.
33
   Id. at 321. See also McNair v. Owens-Corning Fiberglass Corp., 890 F.2d 753, 756-57 (5th Cir. 1989);
Sugar Land Properties, Inc. v. Becnel, 26 S.W.3d 113, 120 (Tex. App. – Houston [1st Dist.] 2000, no pet.)
(citing McNair, 890 F.2d at 756-57); Wynn v. Cohan, 864 S.W.2d 205, 207 (Tex. App. – Houston [14th
Dist.] 1993, writ denied) (“… non-settling defendant may only claim credit based on the damages for
which all defendants are jointly liable.”).


                                                 IX-9
advantage of the settlement monies even where the defendant is less than 50%

responsible. According to Roberts, the settlement credit should also be applied to the

verdict for purposes of determining a cap on the plaintiffs’ recovery. 34 The purpose

behind this interpretation is to ensure that the plaintiffs do not recover more than their

damages as determined by the jury – i.e., the “one satisfaction” rule. Thus, in applying

the sum of all settlement money to form a cap on the plaintiff’s total recovery, a

defendant may nonetheless be able to limit its liability beyond its percentage share of

liability.

                                             Hypothetical #3

         Assume a $4 million overall verdict and a $2.5 million settlement. The settlement

would be subtracted from the verdict to arrive at a $1.5 million cap on what the plaintiff

could potentially recover from the remaining defendant. 35 In other words, this becomes

the maximum amount the plaintiff could recover from the nonsettling defendant. 36

         If the defendant is not found jointly and severally liable – i.e., is found less than

fifty percent (50%) responsible – then that defendant’s liability will be determined by

calculating the percentage of responsibility placed on them by the jury’s full damage

award ($4 million). For example, assume the defendant is found 30% responsible and the

settling defendant 70%. The nonsettling defendant will be liable for 30% of that $4

million award, or $1.2 million.              Since that amount is under the $1.5 million cap


34
   See TEX. CIV. PRAC. & REM. CODE ANN. § 33.012(b); Roberts, 111 S.W.3d at 123 & FN7. See also
C&H Nationwide, Inc., 903 S.W.2d at 321 (“The maximum plaintiffs can recover from all defendants is the
amount set by §33.012.”).
35
   TEX. CIV. PRAC. & REM. CODE ANN. §33.012(b).
36
   These examples do not assume any contributory negligence on the part of the claimant. However, if
there is a percentage of responsibility assigned to the plaintiff, that percentage is taken off the jury’s award
first. See TEX. CIV. PRAC. & REM. CODE ANN. §33.012(a). Then, the settlement credit is applied. See TEX.
CIV. PRAC. & REM. CODE ANN. §33.012(b) (“If the claimant has settled with one or more persons, the court
shall further reduce the amount of damages…”).


                                                    IX-10
recoverable from the defendant, the nonsettling will be required to pay its entire share, or

$1.2 million.

                                          Hypothetical #4

           Again, assume a $4 million overall verdict and a $2.5 million settlement. Here,

however, assume that the defendant is found 60% responsible and the settling defendant

40%. Under those circumstances, the defendant is jointly and severally liable and thus

responsible for the entire amount of the judgment. Here, the settlement credit is applied

pursuant to CPRC 33.012(b), not as a cap. 37 In other words, the settlement credit comes

off the top, reducing plaintiff’s recovery from the jointly and severally liable defendant

from 2.4 million (60% x $4 million) to $1.5 million.

                                          Hypothetical #5

           Now assume the defendant is not found jointly and severally liable, but is found

responsible for anywhere between forty (40%) and fifty-percent (50%) of the $4 million

verdict.     Here, absent joint and several liability, Section 33.012(b) does not apply.

Rather, the “cap” comes into play. Under the “one satisfaction” rule, the plaintiff cannot

recover more than the jury found he or she was injured – i.e., $4 million. The plaintiff

has already recovered $2.5 million in settlement. Thus, the maximum the plaintiff can

recover from the remaining defendants without violating the “one satisfaction” rule is

$1.5 million. Because that defendant’s percentage of the jury’s verdict ($1.6 to $2

million) would exceed the capped amount ($1.5 million), the judgment would need to be

further reduced to reflect the cap. As envisioned in Roberts, the defendant would benefit

from the plaintiff’s favorable settlement with the settling defendant. 38


37
     TEX. CIV. PRAC. & REM. CODE ANN. §33.012(b).
38
     111 S.W.3d at 123, FN7.


                                                IX-11
                                            Hypothetical #6

           The same would arguably be true if the jury’s overall verdict was anything less

than the $2.5 million settlement. Assume the jury finds damages totaling $2 million.

Regardless of the defendant’s percentage of responsibility, either Section 33.012(b) or the

“one satisfaction” rule prevent the plaintiff from recovering anything since they have

already recovered that amount in the settlement. This way, the law assures that the

plaintiff cannot recover more than what the jury finds them to have been damaged.

                            ii.     Effect of an Insolvent Co-Defendant.       One

commentator presents an additional “conundrum.” 39 Consider a situation in which there

is a settling defendant and two remaining defendants. Then, assume a $1 million jury

award and a $600,000 settlement. Further assume that the settling defendant is assigned

50% responsibility for the occurrence, and the remaining defendants are each assigned

25% responsibility. In this situation, the $600,000 would apply to create a cap of

$400,000 on plaintiff’s recovery.             Each remaining defendant’s individual liability,

calculated according to 33.013(a), would only be $250,000, well under that cap.

Collectively, however, the plaintiff’s $500,000 recovery would exceed that cap.

Assuming both defendants are solvent, that recovery should be reduced proportionately

so that each defendant is only responsible for $200,000 (thus conforming the entire

recovery to the $400,000 cap).

           But what if one of the remaining defendants is insolvent? Plaintiff will not be

able to recover the amount of the cap from both defendants. So, the remaining, solvent

defendant could conceivably be required to pay the full $250,000. Neither the case law



39
     See September 23, 2002 Texas Lawyer at pp. 29-30.


                                                  IX-12
nor the statutes currently provide any guidance in such a circumstance. However, there

are arguments to be made against this interpretation.

         A defendant’s insolvency should not come into play at the judgment stage. A

court should enter judgment against each defendant, regardless of solvency, that

conforms to the cap on plaintiff’s recovery. To do otherwise would essentially make the

solvent defendant jointly and severally liable for at least a portion of the insolvent

defendant’s liability, where the jury’s findings and the statute provide no basis for doing

so. However, as Texas case law currently does not shed any light on this particular issue,

the effect of a defendant’s insolvency in this scenario is unknown.

B.       Responsible Third Parties

         In 1995, the Texas legislature added a new category to the proportionate

responsibility scheme, the “responsible third party.” 40

         1.       Definition of “responsible third party.”               Chapter           33        defines

“responsible third party” as follows:

         “Responsible third party” means any person who is alleged to have caused
         or contributed to causing in any way the harm for which recovery of
         damages is sought, whether by negligent act or omission, by any defective
         or unreasonably dangerous product, by other conduct or activity that
         violates an applicable legal standard, or by any combination of these. The
         term “responsible third party” does not include a seller eligible for
         indemnity under Section 82.002. 41

         2.       Designation of a responsible third party.                 A responsible third party is

“designated” as such by filing a “motion for leave to designate that person as a

responsible third party” on or before the 60th day before the trial date 42 , unless good



40
   Of course, the responsible third party mechanism, being part of Chapter 33, is limited to tort cases.
41
   See TEX. CIV. PRAC. & REM. CODE ANN. §33.011(6).
42
   Or such other deadline as may be set by the trial court pursuant to a docket control or scheduling order.


                                                   IX-13
cause exists for filing the motion later. 43 The trial court is required to grant leave unless

another party files an objection. 44 Any objection must be filed within 15 days after

service of the motion for leave and, to prevent designation of a third party, must

establish: (1) that the defendant did not plead sufficient facts concerning the third party’s

alleged liability to satisfy the Texas Rules of Civil Procedure’s pleading requirements;

and (2) after being granted leave to replead, the defendant still fails to plead sufficient

facts. 45 Finally, the statute makes clear that being designated a “responsible third party”

has no effect on that party. The designation expressly does not impose liability on the

responsible third party and may not be used in any other proceeding “on the basis of res

judicata, collateral estoppel, or any other legal theory, to impose liability on the

person.” 46 Finally, a defendant can designate an entity as a responsible third party even if

the court would not otherwise have jurisdiction over that entity.

         3.        Timely joinder of a responsible third party.         If    a       party      is

designated “a responsible third party,” the plaintiff may join that party, even though such

joinder would otherwise be barred by limitations, if the plaintiff seeks to join that person

not later than 60 days after that party is designated a responsible third party. 47

         4.        Effect of designating a responsible third party.     Responsible           third

parties that are properly designated are included in the jury question submitted to

determine percentages of responsibility. 48 This may shift liability percentages enough to

help defendants avoid being held jointly and severally liable. This is the primary



43
   Id. at §33.004(a).
44
   Id. at 33.004(f)
45
   Id. at §33.004(f-g).
46
   Id. at §33.004(i).
47
   Id. at §33.004(e).
48
   Id. at §33.003(a)(4).


                                             IX-14
difference between responsible third parties and contribution defendants: contribution

defendants do not help defendants avoid joint and several liability to the plaintiff because

contribution defendants are not included in the percentage-of-responsibility question that

determines joint and several liability. Thus, an insolvent contribution defendant is of no

practical use to a defendant, but an insolvent responsible third party can be.

            5.       Designating an unknown responsible third party. The         responsible

third party statute expressly allows for Jane and John Doe third parties who have

“committed a criminal act that was a cause of the loss or injury that is the subject of the

lawsuit” to be designated “responsible third parties.” 49 Such a designation must be made

within 60 days after filing of the defendant’s original answer and must be granted if: (1)

the court determines that the defendant has pleaded sufficient facts for the court to

determine that there is a reasonable probability the act of the unknown person was

criminal; (2) the defendant states in its answer all identifying characteristics of the

unknown person known at the time of the answer; and (3) the allegations against the

unknown person satisfy the Texas Rules of Civil Procedure’s pleading requirements. 50




845357




49
     Id. at §33.011(j).
50
     Id. at §33.004(j)


                                            IX-15
X.   JURY QUESTIONS

     A.   General PJC Comments .......................................................................... X-1
          PJC 66.1 .................................................................................................. X-1

     B.   Preliminary Question of Right to Control in Independent
          Contractor Cases ..................................................................................... X-3
          PJC 66.3 .................................................................................................. X-3

     C.   Claims By Invitees.................................................................................. X-4
          PJC 66.4 .................................................................................................. X-4

     D.   Claims By Licensees............................................................................... X-6
          PJC 66.5 .................................................................................................. X-6
          PJC 66.8 .................................................................................................. X-8

     E.   Using Alternate Theories of Recovery: Claims By Invitees
          or Licensees .......................................................................................... X-10
          PJC 66.7 ................................................................................................ X-10

     F.   Claims By Trespassers.......................................................................... X-12
          PJC 66.9 ................................................................................................ X-12

     G.   Claims Under the Attractive Nuisance Doctrine .................................. X-14
          PJC 66.10 .............................................................................................. X-14

     H.   Jury Submission Under the Recreational Use Statute........................... X-17

     I.   Jury Submission Under the Texas Tort Claims Act.............................. X-18

     J.   Jury Submission with Proportionate Responsibility ............................. X-19
          PJC 66.2 ................................................................................................ X-19
          PJC 66.11 .............................................................................................. X-19
          PJC 66.12 .............................................................................................. X-21
          PJC 66.13 .............................................................................................. X-22

     K.   Claims Under CPRC Chapter 95 .......................................................... X-24
          PJC 66.14 .............................................................................................. X-24
                       X.    JURY QUESTIONS AND INSTRUCTIONS

           Texas Pattern Jury Charge Chapter 66 is entitled “Premises Liability—Theories of

Recovery.” 1 For ease of reference, the discussion in this section of the manual will

include the entirety of the text of Chapter 66 with comments.

A.         General PJC Comments

PJC 66.1             Use of “Occurrence,” “Injury,” or “Occurrence or Injury”
                     (Comment)

        Pleadings and proof determine choice. The pleadings and proof in each case
will determine the choice of the terms “occurrence,” “injury,” or “occurrence or injury”
in the questions in this chapter. The choice could affect a case in which there is evidence
of the plaintiff’s negligence that is “injury-causing” or “injury-enhancing” but not
“occurrence-causing”: for example, carrying gasoline in an unprotected container, which
exploded in the crash, greatly increasing the plaintiff’s injuries (preaccident negligence),
or failing to follow doctor’s orders during recovery, thereby aggravating the injuries
(postaccident negligence). In such a case the jury should not consider this negligence in
answering the liability and proportionate responsibility questions if “occurrence” is used,
while it should consider the negligence if “injury” is used.

        Proportionate responsibility statute. The passage of the comparative (now
named “proportionate”) responsibility statute (Tex. Civ. Prac. & Rem. Code Ann. ch. 33
(Vernon 1997 & Supp. 2006)) in 1987 further complicated the issue. For suits filed after
September 1, 1987, section 33.003 requires a finding of “percentage of responsibility” in
pure negligence cases as well as in “mixed” cases involving claims of negligence and
strict liability and/or warranty. TCPRC § 33.003 (Supp. 2006). “Percentage of
responsibility” is defined in terms of “causing or contributing to cause in any way . . . the
personal injury, property damage, death, or other harm for which recovery of damages is
sought.” TCPRC § 33.011(4) (emphasis added). The definition does not use the term
“occurrence”; however, nothing in the legislative history indicates that the
“occurrence/injury” issue was being addressed in the choice of words used in the
definition.

       Two causal links. Heretofore, in most negligence cases and in
noncrashworthiness strict products cases, two causal links have been required—one
between conduct and occurrence and the other between occurrence and injury. See
Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731–32 (Tex. 1984). But cf. Duncan v.
Cessna Aircraft Co., 665 S.W.2d 414, 428 (Tex. 1984) (link between conduct and
occurrence not required).



1
    PJC 66 (2006).


                                              X-1
        Distinctions affect how to submit conduct. The above distinctions between the
plaintiff’s injury-causing negligence (whether preaccident or postaccident) and
occurrence-causing negligence affect the decision of whether such conduct should be
submitted as part of the question on the plaintiff’s proportionate responsibility or as an
exclusionary instruction to the damages questions.

         The Committee is unable to determine whether the legislature, by using “injury”
in section 33.011(4), intended to abolish the distinction between occurrence-causing and
injury-causing contributory negligence and mandate the use of “injury” to the preclusion,
at any time, of “occurrence.” Thus the alternatives occurrence, injury, and occurrence or
injury appear in brackets to indicate that if evidence of the plaintiff’s nonoccurrence-
producing negligence makes the choice important, the decision is to be made by the court
in light of the precedents discussed above and other relevant law.

         Interplay between use of “occurrence” or “injury” and use of exclusionary
instruction in submitting damages questions. Submitting “occurrence” in conjunction
with the appropriate exclusionary instruction in PJC 80.7 or PJC 80.9 may resolve any
uncertainty about using “injury” or “occurrence” in a given case. But note that if the
liability question is submitted with the term “injury,” an exclusionary instruction should
not be submitted.




                                           X-2
B.     Preliminary Question of Right to Control in Independent Contractor Cases

PJC 66.3       Premises Liability Based on Negligent Activity or Premises
               Defect—Right to Control

       QUESTION ______

       Did [the general contractor] [the property owner] exercise or retain some
control over the manner in which [the injury-causing activity] [the defect-producing
work] was performed, other than the right to order the work to start or stop or to
inspect progress or receive reports?
       Answer “Yes” or “No.”
       Answer: _______________

                                      COMMENT

        When to use. PJC 66.3 is a predicate to the appropriate liability question in
common-law cases brought against a general contractor or property owner for (1) the
negligent activity of an independent contractor or (2) a premises defect created by an
independent contractor’s work. See Dow Chemical Co. v. Bright, 89 S.W.3d 602 (Tex.
2002); Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001); Clayton W.
Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997). In such cases, the injured
plaintiff must establish both the general contractor or property owner’s right of control
over the injury-causing activity or defect-producing work that gives rise to a duty to
ensure that the independent contractor performs its work safely, and a breach of that duty.
In cases involving property owners that qualify for the protections available under
chapter 95 of the Texas Civil Practice and Remedies Code, PJC 66.14 should be used. In
premises defect cases not governed by chapter 95, this question should immediately
precede PJC 66.4.

        Substitute name of general contractor or property owner. The name of the
general contractor or property owner should be substituted for the italicized phrase in the
charge.

        Substitute particular activity or work. Terms describing the particular activity
alleged to have caused the injury or work alleged to have produced the defect should be
substituted for the italicized phrase in the charge.




                                           X-3
C.     Claims By Invitees

PJC 66.4       Premises Liability—Plaintiff Is Invitee

       QUESTION ______

       Did the negligence, if any, of those named below proximately cause the
[occurrence] [injury] [occurrence or injury] in question?

       With respect to the condition of the premises, Don Davis was negligent if—

       a.      the condition posed an unreasonable risk of harm, and
       b.      Don Davis knew or reasonably should have known of the danger, and
       c.      Don Davis failed to exercise ordinary care to protect Paul Payne from
               the danger, by both failing to adequately warn Paul Payne of the
               condition and failing to make that condition reasonably safe.

      “Ordinary care,” when used with respect to the conduct of Don Davis as an
owner or occupier of a premises, means that degree of care that would be used by an
owner or occupier of ordinary prudence under the same or similar circumstances.

       Answer “Yes” or “No” for each of the following:

       a.      Don Davis              _______________
       b.      Paul Payne             _______________
       c.      Sam Settlor            _______________
       d.      Responsible Ray        _______________
       e.      Connie Contributor     _______________

                                       COMMENT

        When to use. PJC 66.4 is a broad-form question that should be appropriate in
most premises liability cases in which it is undisputed that the plaintiff was an invitee.
See Dallas Market Center Development Co. v. Liedeker, 958 S.W.2d 382 (Tex. 1997);
State v. Williams, 940 S.W.2d 583 (Tex. 1997).

       Use of “occurrence,” “injury,” or “occurrence or injury.” See PJC 66.1.

       Accompanying question. In cases against a general contractor for premises
defects created by an independent contractor’s work activity, PJC 66.3 should
immediately precede this question if there is a dispute about the general contractor’s right
to control the manner in which the work was performed. See Saenz v. David & David
Construction Co., 52 S.W.3d 807, 813 (Tex. App.—San Antonio 2001, pet. denied).

      Accompanying definitions and instructions. PJC 66.4 is designed to be
accompanied by the appropriate definitions of the standard of care and “proximate cause”



                                           X-4
set out in PJC 65.2–.4. PJC 65.2 should be used when the conduct of a contributorily
negligent plaintiff or a defendant who is not an owner or occupier of a premises is also to
be considered by the jury. PJC 65.3 should be used for a child’s standard of care. If the
evidence raises “new and independent cause,” the definitions in PJC 65.5 should be used
in lieu of the definition of “proximate cause” in PJC 65.4.

        Plaintiff’s negligence. If the plaintiff’s negligence is not in issue, the plaintiff’s
name (Paul Payne) should not be included in the above question. In a case in which the
plaintiff’s negligence is in issue, or in any case including more than one defendant, a
proportionate responsibility question should follow PJC 66.4. Tex. Civ. Prac. & Rem.
Code Ann. §§ 33.001–.017 (Vernon 1997 & Supp. 2006). See PJC 66.11 and PJC 66.13.

        Derivative claimant. In cases involving a derivative claimant (see PJC 66.13),
the above question must also include the name of the derivative claimant along with that
of the primary claimant.

        Condition must create unreasonable risk resulting in physical harm. Only a
condition creating an unreasonable risk that results in physical harm will impose liability
on the possessor of a premises. Some conditions have been held, as a matter of law, not to
create unreasonable risks. See, e.g., H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218
(Tex. 1999) (per curiam) (customer sampling display); Seideneck v. Cal Bayreuther
Associates, 451 S.W.2d 752 (Tex. 1970) (throw rug).

        Substitute particular condition. If it is agreed that the case involves only one
condition, the Committee recommends that the particular condition (e.g., a grape on the
floor) be substituted for the phrase the condition.

        Exceptions to the limitations on joint and several liability. The limitations on
joint and several liability set forth in chapter 33 of the Civil Practice and Remedies Code
do not apply in certain instances:

       A.      Actions filed before July 1, 2003. See former TCPRC §§ 33.002,
33.013(c)(1), (2) (Acts 1995, 74th Leg., R.S., ch. 136, § 1 (S.B. 28), eff. Sept. 1, 1995).

         B.    Actions filed on or after July 1, 2003. See TCPRC § 33.013 (Vernon
2008).

       Submission of settling person, contribution defendant, or responsible third
party. See PJC 66.2.




                                            X-5
D.     Claims By Licensees

PJC 66.5       Premises Liability—Plaintiff Is Licensee

       QUESTION ______

       Did the negligence, if any, of those named below proximately cause the
[occurrence] [injury] [occurrence or injury] in question?

       With respect to the condition of the premises, Don Davis was negligent if—

       a.     the condition posed an unreasonable risk of harm, and
       b.     Don Davis had actual knowledge of the danger, and
       c.     Paul Payne did not have actual knowledge of the danger, and
       d.     Don Davis failed to exercise ordinary care to protect Paul Payne from
              the danger, by both failing to adequately warn Paul Payne of the
              condition and failing to make that condition reasonably safe.

      “Ordinary care,” when used with respect to the conduct of Don Davis as an
owner or occupier of a premises, means that degree of care that would be used by an
owner or occupier of ordinary prudence under the same or similar circumstances.

       Answer “Yes” or “No” for each of the following:

       a.     Don Davis              _______________
       b.     Paul Payne             _______________
       c.     Sam Settlor            _______________
       d.     Responsible Ray        _______________
       e.     Connie Contributor     _______________

                                      COMMENT

       When to use. PJC 66.5 is a broad-form question that should be appropriate in
most premises liability cases in which it is undisputed that the plaintiff was a licensee.
See State v. Williams, 940 S.W.2d 583 (Tex. 1997).

       Use of “occurrence,” “injury,” or “occurrence or injury.” See PJC 66.1.

        Accompanying definitions and instructions. The standard of care of a defendant
owner or occupier of a premises is set out in the above instruction. Williams, 940 S.W.2d
at 584. PJC 65.2 should be used when the conduct of a contributorily negligent plaintiff
or a defendant who is not an owner or occupier of a premises is also to be considered by
the jury. PJC 65.3 should be used for a child’s standard of care. The definition of
“proximate cause” is set out in PJC 65.4. If the evidence raises “new and independent
cause,” the definitions in PJC 65.5 should be used in lieu of the definition of “proximate
cause” in PJC 65.4.



                                           X-6
        Plaintiff’s negligence. If the plaintiff’s negligence is not in issue, the plaintiff’s
name (Paul Payne) should not be included in the above question. In a case in which the
plaintiff’s negligence is in issue, or in any case including more than one defendant, a
proportionate responsibility question should follow PJC 66.5. Tex. Civ. Prac. & Rem.
Code Ann. §§ 33.001–.017 (Vernon 1997 & Supp. 2006). See PJC 66.11 and PJC 66.13.

        Derivative claimant. In cases involving a derivative claimant (see PJC 66.13),
the above question must also include the name of the derivative claimant along with that
of the primary claimant.

        Condition must create unreasonable risk resulting in physical harm. Only a
condition creating an unreasonable risk that results in physical harm will impose liability
on the possessor of a premises. Some conditions have been held, as a matter of law, not to
create unreasonable risks. See, e.g., H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218
(Tex. 1999) (per curiam) (customer sampling display); Seideneck v. Cal Bayreuther
Associates, 451 S.W.2d 752 (Tex. 1970) (throw rug).

        Substitute particular condition. If it is agreed that the case involves only one
condition, the Committee recommends that the particular condition (e.g., a grape on the
floor) be substituted for the phrase the condition.

        Exceptions to the limitations on joint and several liability. The limitations on
joint and several liability set forth in chapter 33 of the Civil Practice and Remedies Code
do not apply in certain instances:

       A.      Actions filed before July 1, 2003. See former TCPRC §§ 33.002,
33.013(c)(1), (2) (Acts 1995, 74th Leg., R.S., ch. 136, § 1 (S.B. 28), eff. Sept. 1, 1995).

       B.      Actions filed on or after July 1, 2003. See TCPRC § 33.013 (Vernon
               2008).

       Submission of settling person, contribution defendant, or responsible third
party. See PJC 66.2.




                                            X-7
       If the plaintiff is a licensee and claims to have been injured by the defendant’s

gross negligence, the following instruction should be used:

PJC 66.8       Premises Liability—Plaintiff-Licensee Injured by Gross Negligence

       QUESTION ______

       Was Don Davis’s gross negligence, if any, a proximate cause of the
[occurrence] [injury] [occurrence or injury] in question?

       Don Davis was grossly negligent with respect to the condition of the premises
if—
       a.      the condition posed an unreasonable risk of harm, and
       b.      Don Davis both failed to adequately warn Paul Payne of the danger
               and failed to make that condition reasonably safe, and
       c.      Don Davis’s conduct was more than momentary thoughtlessness,
               inadvertence, or error of judgment. In other words, Don Davis must
               have either known or been substantially certain that the result or a
               similar result would occur, or he must have displayed such an entire
               want of care as to establish that the act or omission was the result of
               actual conscious indifference to the rights, safety, or welfare of the
               persons affected by it.

       Answer “Yes” or “No.”

       Answer: _______________

                                      COMMENT

        When to use. PJC 66.8 presents a ground of recovery independent of that found
in PJC 66.4 or PJC 66.5. It may be used as a basis for recovery of actual damages in a
case in which the plaintiff-licensee claims to have been injured as a result of the
defendant’s gross negligence. The possessor of premises owes to the licensee the duty not
to injure him by willful or wanton conduct or gross negligence. State v. Tennison, 509
S.W.2d 560 (Tex. 1974); Carlisle v. J. Weingarten, Inc., 152 S.W.2d 1073 (Tex. 1941);
see also Jannette v. Deprez, 701 S.W.2d 56 (Tex. App.—Dallas 1985, writ ref’d n.r.e.)
(in premises case, defendant’s gross negligence may be compared with plaintiff’s
ordinary negligence). This position differs from that found in Restatement (Second) of
Torts §§ 341, 342 (1965).

       Use of “occurrence,” “injury,” or “occurrence or injury.” See PJC 66.1.

        Substitute particular condition. If it is agreed that the case involves only one
condition, the Committee recommends that the particular condition (e.g., a grape on the
floor) be substituted for the phrase the condition.



                                           X-8
        Source of instruction. That portion of the above instruction relating to gross
negligence (see element c) is taken from Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.12
(S.B. 5), eff. Sept. 2, 1987, amended by Acts 1995, 74th Leg., R.S., ch. 19, § 1 (S.B. 25),
eff. Sept. 1, 1995. The Committee has not employed the language of Tex. Civ. Prac. &
Rem. Code Ann. § 41.001 (Vernon Supp. 2006), which defines “malice” as a basis for
recovering punitive damages. An affirmative answer by the jury to the above question
provides a basis for recovering only actual damages. If a plaintiff desires to seek both
actual and punitive damages in a case arising after September 1, 1995, then both the
above submission and the submission in PJC 85.3B or PJC 85.3C would be required,
with the latter submission being conditioned on an affirmative response to the former.




                                           X-9
E.     Using Alternate Theories of Recovery: Claims By Invitees or Licensees

PJC 66.7       Premises Liability—Disjunctive Submission of Invitee–Licensee for
               Alternate Theories of Recovery

       QUESTION ______

       On the occasion in question, was Paul Payne an invitee or a licensee on that
part of Don Davis’s premises under consideration?

               An “invitee” is a person who is on the premises at the express or
               implied invitation of the possessor of the premises and who has
               entered thereon either as a member of the public for a purpose for
               which the premises are held open to the public or for a purpose
               connected with the business of the possessor that does or may result in
               their mutual economic benefit. One who is an invitee cannot be a
               licensee at the same time.

               A “licensee” is a person on the premises with the permission of the
               possessor but without an express or implied invitation. Such person is
               on the premises only because the possessor has allowed him to enter
               and not because of any business or contractual relations with, or
               enticement, allurement, or inducement to enter by, the possessor.

       Answer “invitee” or “licensee.”

       Answer: _______________

                                       COMMENT

        When to use. PJC 66.7 is appropriate if the plaintiff seeks to recover on alternate
theories of liability—that is, that he was either an invitee or a licensee. In such event,
licensee status is not in the nature of an inferential rebuttal, and disjunctive submission is
proper under Tex. R. Civ. P. 277 if the evidence shows that the plaintiff must be either an
invitee or a licensee. Cf. Archuleta v. International Insurance Co., 667 S.W.2d 120 (Tex.
1984) (in workers’ compensation suit, proper to ask about total and partial incapacity as
alternate theories; inquiry about partial incapacity improper inferential rebuttal if only
total incapacity claimed).

        Modify if claimed licensee status in dispute. If the plaintiff claims he was a
licensee but the defendant argues that the plaintiff was a trespasser, PJC 66.7 may be
modified by substituting the words a licensee for an invitee and trespasser for licensee in
the question, licensee for invitee and trespasser for licensee in the answer instruction, and
the following definitions for those given above:




                                            X-10
       A “licensee” is a person on the premises with the express or implied
       permission of the possessor. One who is a licensee cannot be a trespasser
       at the same time.

       A “trespasser” is a person on the property of another without any right,
       lawful authority, or express or implied invitation, permission, or license,
       not in the performance of any duty to the owner or person in charge or on
       any business of such person, but merely for his own purposes, pleasure, or
       convenience or out of curiosity and without enticement, allurement,
       inducement, or express or implied assurance of safety from the owner or
       person in charge.

The above definitions are based on those in Texas-Louisiana Power Co. v. Webster, 91
S.W.2d 302, 306 (Tex. 1936).

        Invitee on one part of premises; licensee on another. A person may be an
invitee on one part of the premises and a licensee on another or a licensee on one part and
a trespasser on another. Burton Construction & Shipbuilding Co. v. Broussard, 273
S.W.2d 598, 602–03 (Tex. 1954). If the plaintiff’s status on a particular part of the
premises is not in dispute, the phrases “that part of” and “under consideration” in the
above question should be deleted.

       Answer determines which liability question follows. PJC 66.7 is designed to
function as a predicate to the appropriate liability question. Therefore, after answering the
above question, the jury should be directed to answer either PJC 66.4 (plaintiff is invitee)
or PJC 66.5 (plaintiff is licensee), whichever is appropriate.




                                           X-11
F.     Claims By Trespassers

PJC 66.9       Premises Liability—Plaintiff Is Trespasser

       QUESTION ______

       Was Don Davis’s gross negligence, if any, a proximate cause of the
[occurrence] [injury] [occurrence or injury] in question?

       Don Davis was grossly negligent with respect to the condition of the premises
if—

       a.      the condition posed an unreasonable risk of harm, and
       b.      Don Davis both failed to adequately warn Paul Payne of the danger
               and failed to make that condition reasonably safe, and
       c.      Don Davis’s conduct was more than momentary thoughtlessness,
               inadvertence, or error of judgment. In other words, Don Davis must
               have either known or been substantially certain that the result or a
               similar result would occur, or he must have displayed such an entire
               want of care as to establish that the act or omission was the result of
               actual conscious indifference to the rights, safety, or welfare of the
               persons affected by it.

       Answer “Yes” or “No.”

       Answer: _______________

                                      COMMENT

        When to use. PJC 66.9 may be used in a suit in which the plaintiff-trespasser sues
a premises defendant for gross negligence. See Jannette v. Deprez, 701 S.W.2d 56 (Tex.
App.—Dallas 1985, writ ref’d n.r.e.) (in premises case, defendant’s gross negligence may
be compared with plaintiff’s ordinary negligence). PJC 66.9 also may be used in suits
governed by Tex. Civ. Prac. & Rem. Code Ann. ch. 75 (Vernon 2005 & Supp. 2006),
which defines the applicable standard of care owed to recreational users of property as
the same standard of care a private landowner owes to a trespasser. But see Flye v. City of
Waco, 50 S.W.3d 645, 649–50 (Tex. App.—Waco 2001, no pet.) (statute applies only to
injuries caused by contemporaneous acts that are willful, wanton, or grossly negligent,
and not to dangerous conditions on premises). Predicate questions submitting other
conditions necessary to incur liability under the recreational use statute may also be
required.

       Use of “occurrence,” “injury,” or “occurrence or injury.” See PJC 66.1.




                                          X-12
        Substitute particular condition. If it is agreed that the case involves only one
condition, the Committee recommends that the particular condition (e.g., a grape on the
floor) be substituted for the phrase the condition.

        Accompanying definitions and instructions. The standard of care of a defendant
owner or occupier of a premises is set out in the above instruction. PJC 65.2 should be
used when the conduct of a contributorily negligent plaintiff or a defendant who is not an
owner or occupier of a premises is also to be considered by the jury. PJC 65.3 should be
used for a child’s standard of care. The definition of “proximate cause” is set out in PJC
65.4. If the evidence raises “new and independent cause,” the definitions in PJC 65.5
should be used in lieu of the definition of “proximate cause” in PJC 65.4.

        Source of instruction. That portion of the above instruction relating to gross
negligence (see element c) is taken from Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.12
(S.B. 5), eff. Sept. 2, 1987, amended by Acts 1995, 74th Leg., R.S., ch. 19, § 1 (S.B. 25),
eff. Sept. 1, 1995. The Committee has not employed the language of TCPRC § 41.001,
which defines “malice” as a basis for recovering punitive damages. An affirmative
answer by the jury to the above question provides a basis for recovering only actual
damages. If a plaintiff desires to seek both actual and punitive damages in a case arising
after September 1, 1995, then both the above submission and the submission in PJC
85.3B or PJC 85.3C would be required, with the latter submission being conditioned on
an affirmative response to the former.




                                          X-13
G.     Claims Under the Attractive-Nuisance Doctrine

PJC 66.10     Premises Liability—Attractive Nuisance

       QUESTION 1

       On the occasion in question, did Don Davis know or should he have known
that children were likely to be present on or about the oil derrick?

       Answer “Yes” or “No.”

       Answer: _______________

       If you have answered Question 1 “Yes,” then answer Question 2. Otherwise,
do not answer Question 2.

       QUESTION 2

       Did the negligence, if any, of those named below proximately cause the
[occurrence] [injury] [occurrence or injury] in question?

       With respect to the condition of the premises, Don Davis was negligent if—

       a.     the condition posed an unreasonable risk of harm, and
       b.     Don Davis knew or reasonably should have known of the danger, and
       c.     Don Davis failed to exercise ordinary care to protect Paul Payne, Jr.
              from the danger, by both failing to adequately warn Paul Payne, Jr. of
              the condition and failing to make that condition reasonably safe.

      “Ordinary care,” when used with respect to the conduct of Don Davis as an
owner or occupier of a premises, means that degree of care that would be used by an
owner or occupier of ordinary prudence under the same or similar circumstances.

       Answer “Yes” or “No” for each of the following:

       a.     Don Davis              _______________
       b.     Paul Payne, Jr.        _______________
       c.     Sam Settlor            _______________
       d.     Responsible Ray        ______________
       e.     Connie Contributor     ______________

                                      COMMENT

         When to use. PJC 66.10 may be used if the plaintiff seeks to impose liability on
the owner or occupier for harm caused to trespassing children by structures or other
artificial conditions on the premises. It is immaterial whether the child was attracted to



                                          X-14
the premises by the structure or artificial condition as long as the presence of the child
should have been reasonably anticipated. Eaton v. R.B. George Investments, Inc., 260
S.W.2d 587, 590 (Tex. 1953); Banker v. McLaughlin, 208 S.W.2d 843, 847 (Tex. 1948).

       Use of “occurrence,” “injury,” or “occurrence or injury.” See PJC 66.1.

       Substitute particular attractive nuisance. The alleged attractive nuisance
should be substituted for the phrase the oil derrick in Question 1.

       Accompanying definitions and instructions. PJC 66.10 is designed to be
accompanied by the appropriate definitions of the standard of care and ‘‘proximate
cause” set out in PJC 65.2–.4. PJC 65.2 should be used when the conduct of a
contributorily negligent plaintiff or a defendant who is not an owner or occupier of a
premises is also to be considered by the jury. PJC 65.3 should be used for a child’s
standard of care. If the evidence raises “new and independent cause,” the definitions in
PJC 65.5 should be used in lieu of the definition of “proximate cause” in PJC 65.4.

        Derivative claimant. In cases involving a derivative claimant (see PJC 66.13),
the above question must also include the name of the derivative claimant along with that
of the primary claimant.

       Age of child. Whether the child is within the age bracket to be protected by the
doctrine is a law question. Children under fourteen or fifteen years of age, depending on
the type of dangerous condition, normally are included. Massie v. Copeland, 233 S.W.2d
449 (Tex. 1950); McCoy v. Texas Power & Light Co., 239 S.W. 1105 (Tex. Comm’n
App. 1922, judgm’t adopted); Johns v. Fort Worth Power & Light Co., 30 S.W.2d 549
(Tex. Civ. App.—Fort Worth 1930, writ ref’d).

        Whether the contributory negligence of a child should be submitted to the jury
depends on the age of the child. As a matter of law, a child four years and ten months of
age is not contributorily negligent. Yarborough v. Berner, 467 S.W.2d 188 (Tex. 1971). If
the child is five years old, a jury issue is presented. Gulf Production Co. v. Quisenberry,
97 S.W.2d 166 (Tex. 1936). If the contributory negligence of a child of “tender years” is
submitted, the definitions of “ordinary care” and “negligence” used with regard to the
child should conform to PJC 65.3.

       Condition or location in dispute. The foregoing questions assume that there is
no dispute that the condition giving rise to the event was in fact located on premises for
which the defendant is legally responsible. If this matter is controverted, an appropriate
question may be submitted.

       Caveat. In Eaton, 260 S.W.2d 587, the court relied heavily on Restatement of
Torts § 339 subpara. (c) (1934) (carried forward in Restatement (Second) of Torts, 1965),
which requires for liability that “the children because of their youth do not discover the
condition or realize the risk involved in intermeddling in it or in coming within the area




                                          X-15
made dangerous by it.” See also Texas Utilities Co. v. Timmons, 947 S.W.2d 191 (Tex.
1997).

        Exceptions to the limitations on joint and several liability. The limitations on
joint and several liability set forth in chapter 33 of the Civil Practice and Remedies Code
do not apply in certain instances:

        A.      Actions filed before July 1, 2003. See former Tex. Civ. Prac. & Rem. Code
Ann. §§ 33.002, 33.013(c)(1), (2) (Acts 1995, 74th Leg., R.S., ch. 136, § 1 (S.B. 28), eff.
Sept. 1, 1995).

       B. Actions filed on or after July 1, 2003. See TCPRC § 33.013 (Vernon 2008).

       Submission of settling person, contribution defendant, or responsible third
party. See PJC 66.2.




                                          X-16
H.     Jury Submission Under the Recreational Use Statute

       In a case where the Recreational Use Statute applies, the jury submission used

should be that used for a trespasser’s premises liability claims. No separate Texas Pattern

Jury Charge exists for premises liability claims under the Recreational Use Statute.




                                          X-17
I.     Jury Submission Under the Texas Tort Claims Act

       As with claims brought under the Recreational Use Statute, there exists no

separate Texas Pattern Jury Charge for claims brought under the Texas Tort Claims Act;

the standard jury submissions for premises liability claims should be used.




                                          X-18
J.     Jury Submission with Proportionate Responsibility

PJC 66.2       Submission of Settling Persons, Contribution Defendants, and
               Responsible Third Parties (Comment)

       Settling persons. The proportionate responsibility statute requires the
responsibility of a settling person (Sam Settlor) to be determined by the trier of fact. Tex.
Civ. Prac. & Rem. Code Ann. §§ 33.003, 33.011 (Vernon 1997). “Settling person” is
defined as one— who at the time of submission has paid or promised to pay money or
anything of monetary value to a claimant at any time in consideration of potential liability
pursuant to the provisions of Section 33.001 with respect to the personal injury, property
damage, death, or other harm for which recovery of damages is sought. TCPRC §
33.011(5). Thus, if the case includes a settling person, that person’s name must be
included in the basic liability question as well as in the proportionate responsibility
question.

       Contribution defendants.

        A.     Inclusion in liability question. If there is a contribution defendant (Connie
Contributor), that person’s name should be included in the basic liability question. See
TCPRC §§ 33.003, 33.011. “Contribution defendant” is defined as “any defendant,
counterdefendant, or third-party defendant from whom any party seeks contribution with
respect to any portion of damages for which that party may be liable, but from whom the
claimant seeks no relief at the time of submission.” TCPRC § 33.016.

       B.      Separate comparative question necessary. The responsibility of the
contribution defendant should not be included in the question comparing the
responsibility of the plaintiff with that of the other defendants. A separate comparative
question is necessary. For an example of a question on comparative responsibility of a
contribution defendant, see PJC 66.12.

         Responsible third parties—causes of action accruing on or after September
1, 1995, and causes of action accruing before September 1, 1995, on which suit is
filed on or after September 1, 1996. A “responsible third party” (Responsible Ray)
should only be included in the basic liability question if joined under TCPRC § 33.004. A
“responsible third party” is defined in TCPRC § 33.011(6). If submitted in the basic
liability question, a responsible third party should also be submitted in the proportionate
responsibility question. TCPRC § 33.003. See PJC 66.11.


PJC 66.11      Premises Liability—Proportionate Responsibility

       If you have answered “Yes” to Question[s] ______ [the liability question(s)]
for more than one of those named below, then answer the following question.
Otherwise, do not answer the following question. The percentages you find must
total 100 percent. The percentages must be expressed in whole numbers. The
negligence attributable to any one named below is not necessarily measured by the


                                           X-19
number of acts or omissions found. The percentage attributable to a person need not
be the same percentage attributed to that person in answering another question.

       QUESTION ______

       What percentage of the negligence that caused the [occurrence] [injury]
[occurrence or injury] do you find to be attributable to each of those listed below and
found by you, in your answer[s] to Question[s] ______ [the liability question(s)], to
have been negligent?

       a.      Don Davis %       _______________
       b.      Paul Payne %      _______________
       c.      Sam Settlor %            _______________
       d.      Responsible Ray % _______________
                                 Total 100 %

                                      COMMENT

        When to use. Rule 277 requires a percentage question “in any case in which the
jury is required to apportion the loss among the parties.” Tex. R. Civ. P. 277. Thus, PJC
66.11 should be used in a premises case if the issue of the negligence of more than one
party is submitted to the jury under Tex. Civ. Prac. & Rem. Code Ann. ch. 33 (Vernon
1997 & Supp. 2006). For cases in which there is a derivative claimant, see PJC 66.13.

       Use of “occurrence,” “injury,” or “occurrence or injury.” See PJC 66.1. The
term used in PJC 66.11 should match that used in the liability questions.

       Blanks for question numbers. The question numbers to be inserted in the blank
space in the conditioning instruction should coincide with those of the underlying
causation inquiries, which should generally be submitted in the liability questions.

       Compare claimants separately. A separate comparative question should be
submitted for each claimant. TCPRC §§ 33.003, 33.011(1) (Vernon 2008); see also
Haney Electric Co. v. Hurst, 624 S.W.2d 602, 611 (Tex. Civ. App.—Dallas 1981, writ
dism’d by agr.). For claimants seeking derivative damages, see PJC 66.13.

        Use of “negligence.” Though the Committee has chosen to continue to compare
negligence, the term “responsibility” is used in TCPRC § 33.011(4). There is general
agreement that the 1987 revisions of chapter 33 of the Civil Practice and Remedies Code
were not intended to change the basic substantive elements of tort law. However, whether
the revisions change the focus of comparison in the allocation question is uncertain. For a
discussion of the legislative history, see generally John T. Montford & Will G. Barber,
1987 Tort Reform: A Quest (pt. 2), 25 Hous. L. Rev. 245, 247, 250–76 (1988). Because
of the frequent use of the term “responsibility” in the Code, an alternative submission
under the Code might be as follows:




                                          X-20
       For each person found by you to have caused the [occurrence] [injury]
       [occurrence or injury], find the percentage of responsibility of those
       named below.

       “Percentage of responsibility” means that percentage attributed to those
       named below with respect to causing or contributing to cause in any way
       the [personal injury], [property damage], [death], or other harm for which
       recovery of damages is sought. See Brown v. Edwards Transfer Co., 764
       S.W.2d 220, 224 n.2 (Tex. 1988).

       Submission of settling person, contribution defendant, or responsible third
party. See PJC 66.2.


PJC 66.12     Premises Liability—Proportionate Responsibility If Contribution
              Defendant Is Joined

       If you have answered “Yes” to Question[s] [the liability questions(s)] for more
than one of the persons named below, then answer the following question.
Otherwise, do not answer the following question. The percentages you find must
total 100 percent. The percentages must be expressed in whole numbers. The
negligence attributable to any one named below is not necessarily measured by the
number of acts or omissions found.

       QUESTION ______

      With respect to causing or contributing to cause in any way the injury to
Paul Payne, find the percentage of negligence, if any, attributable as between or
among—

       a.     Don Davis %                  _______________
       b.     Connie Contributor %         _______________
                                           Total 100 %

                                     COMMENT

       When to use. PJC 66.12 is an additional comparative question designed to follow
the comparative question in PJC 66.11 or PJC 66.13. It submits the proportionate
responsibility between the defendant and a contribution defendant under Tex. Civ. Prac.
& Rem. Code Ann. § 33.016 (Vernon 1997). Section 33.016 specifically requires this
second comparative question. The responsibility of the claimant for any negligence
concerning his own claim is not to be included in this question.

       If there is more than one defendant. If the negligence of more than one
defendant is submitted, separate percentage answers should not be sought for each
defendant in PJC 66.12. Rather, the names of all defendants should be grouped on one



                                         X-21
answer line. The ratio of responsibility between or among the defendants is fixed by the
answer to PJC 66.11 or PJC 66.13, in which a separate answer is obtained for each
defendant; seeking a second set of separate answers in PJC 66.12 might result in jury
confusion or conflicting answers. The contribution responsibility of each defendant may
be determined mathematically by allocating the percentage attributed to all defendants in
answer to PJC 66.12 in proportion to the relative percentages found for each defendant in
answer to PJC 66.11 or PJC 66.13.

       If there is more than one contribution defendant. If the responsibility of more
than one contribution defendant is submitted, a separate percentage answer should be
sought for each such contribution defendant.

PJC 66.13     Premises       Liability—Proportionate        Responsibility—Derivative
              Claimant

       If you have answered “Yes” to Question[s] [the liability question(s)] for more
than one of the persons named below, then answer the following question. Otherwise, do
not answer the following question. The percentages you find must total 100 percent. The
percentages must be expressed in whole numbers. The negligence attributable to any one
named below is not necessarily measured by the number of acts or omissions found. The
percentage attributable to a person need not be the same percentage attributed to that
person in answering another question.

       QUESTION ______

       What percentage of the negligence that caused the [occurrence] [injury]
[occurrence or injury] do you find to be attributable to each of those listed below and
found by you, in your answer[s] to Question[s] [the liability question(s)], to have been
negligent?

       a.     Don Davis %            _______________
       b.     Mary Minor %           _______________
       c.     Fred Father %          _______________
       d.     Sam Settlor %          _______________
       e.     Responsible Ray %      _______________
                                     Total 100 %

                                     COMMENT

        When to use. Rule 277 requires a percentage question “in any case in which the
jury is required to apportion the loss among the parties.” Tex. R. Civ. P. 277. PJC 66.13
is designed to apportion loss in cases in which there is a derivative claimant—that is, a
claimant suing for damages caused by injuries to another. In the example above, Fred
Father is the derivative claimant and Mary Minor is the injured child. For PJC 66.13 to
apply, the child must not be suing the parent. A separate comparative submission is
required for the derivative claim. Tex. Civ. Prac. & Rem. Code Ann. §§ 33.003,



                                         X-22
33.011(1) (Vernon Supp. 2006); see also Haney Electric Co. v. Hurst, 624 S.W.2d 602,
611 (Tex. Civ. App.—Dallas 1981, writ dism’d by agr.) (“each plaintiff’s claim must be
considered as if it were a separate suit”). PJC 66.13 applies to the derivative claim. For
submission of the underlying claim against the defendant, see PJC 66.11. Separate
questions (such as PJC 66.11 and PJC 66.13) are submitted because the negligence of a
derivative claimant (Fred Father) will not bar or diminish the recovery of the primary
claimant (Mary Minor). On the other hand, the negligence of Mary Minor will bar or
diminish the recovery of both Mary Minor and Fred Father. For this reason, the
percentage of causation of both Mary Minor and Fred Father must be considered in
determining whether the recovery of Fred Father is barred or diminished.

       Use of “occurrence,” “injury,” or “occurrence or injury.” See PJC 66.1. The
term used in PJC 66.13 should match that used in the liability questions.

       Blanks for question numbers. The question numbers to be inserted in the blank
space in the conditioning instruction should coincide with those of the underlying
causation inquiries, which should generally be submitted in the liability questions.

        Liability questions must also include derivative claimant. In cases involving a
derivative claimant, the basic liability questions must also include the name of the
derivative claimant along with that of the primary claimant.

       Use of “negligence.” Though the Committee has chosen to continue to compare
negligence, the term “responsibility” is used in TCPRC § 33.011(4). See PJC 66.11
comment, “Use of ‘negligence.’”

       Submission of settling person, contribution defendant, or responsible third
party. See PJC 66.2.




                                          X-23
K.     Claims Under CPRC Chapter 95

PJC 66.14     Property Owner’s Liability to Contractors, Subcontractors, or Their
              Employees (Tex. Civ. Prac. & Rem. Code ch. 95)

       QUESTION ______

        Did Olivia Owner exercise or retain some control over the manner in which
[the injury-causing] [the defect-producing] work was performed, other than the right
to order the work to start or stop or to inspect progress or receive reports?

       Answer “Yes” or “No.”

       Answer: _______________

       If you have answered the above question “Yes,” then answer the following
question. Otherwise, do not answer the following question.

       QUESTION ______

       Did the negligence, if any, of Olivia Owner proximately cause the [occurrence]
[injury] [occurrence or injury] in question?

       With respect to the condition of the premises, Olivia Owner was negligent if—

       a.     the condition posed an unreasonable risk of harm, and
       b.     Olivia Owner had actual knowledge of the danger, and
       c.     Olivia Owner failed to exercise ordinary care to protect Paul Payne
              from the danger, by both failing to adequately warn Paul Payne of the
              condition and failing to make that condition reasonably safe.

              “Ordinary care,” when used with respect to the conduct of
              Olivia Owner as an owner of a premises, means that degree of
              care that would be used by an owner of ordinary prudence
              under the same or similar circumstances.

       Answer “Yes” or “No.”

       Answer: _______________

                                     COMMENT

       When to use. PJC 66.14 should be used in cases governed by chapter 95 of the
Texas Civil Practice and Remedies Code, which applies when a property owner is
claimed to be liable for personal injury, death, or property damage to an owner,
contractor, or subcontractor arising from the condition or use of an improvement to real


                                         X-24
property where the contractor or subcontractor constructs, repairs, renovates, or modifies
the improvement.

         Under the statute, the property owner is not liable unless he controlled the manner
in which the work was performed and knew of the harm and failed to adequately warn of
it. Tex. Civ. Prac. & Rem. Code Ann. § 95.003 (Vernon 2005).

         Use of “occurrence,” “injury,” or “occurrence or injury.” See PJC 66.1.

       Accompanying question. Predicate questions submitting other conditions
necessary to incur liability under the statute may also be required. For example, fact
questions may exist about whether the real property was used primarily for commercial
or business purposes or whether the occurrence or injury arose from an improvement to
the property that was constructed, repaired, renovated, or modified by the contractor.

       Substitute particular work. Terms describing the particular work alleged to
have caused the injury or produced the defect should be substituted for the italicized
phrase in the charge.

        Substitute particular condition. If it is agreed that the case involves only one
condition, the Committee recommends that the particular condition (e.g., a hole in the
roof) be substituted for the phrase the condition.


845362




                                           X-25
XI.   SPECIFIC SCENARIOS AND INTERESTING CASES

      A.   Slip and Fall Cases................................................................................. XI-1
           1.     Dangerous Conditions Created by Self-Service Bins
                  and Displays............................................................................... XI-2
           2.     Actual Knowledge of High Risk of Dangerous Condition ........ XI-3
           3.     Constructive Knowledge and the Time-Notice Rule ................. XI-5
                  a.      Proximity to Condition .................................................. XI-5
                  b.      Constructive Knowledge Cases ..................................... XI-6

      B.   Security Cases ........................................................................................ XI-8
           1.     Duties Owed By a Hired Security Company ............................. XI-8
           2.     Owner Liability for Independent Contractor Security ............. XI-10

      C.   Sidewalk and Parking Lot Cases.......................................................... XI-12
           1.    Muddy Conditions ................................................................... XI-12
           2.    Icy Conditions.......................................................................... XI-13

      D.   Bed Bug Cases ..................................................................................... XI-15

      E.   No Duty Defense and Open and Obvious Defect Cases...................... XI-17

      F.   Dram Shop Cases................................................................................. XI-19
           1.    Applicable Statutes .................................................................. XI-20
           2.    Dram Shop Liability ................................................................ XI-22
           3.    Dram Shop Cases and Proportionate Responsibility ............... XI-25
                 a.     F.F.P. Operating Partners, L.P. v. Dueñez ................. XI-25
                 b.     Biaggi v. Patrizio Restaurant, Inc................................ XI-32
                 c.     Smith v. Sewell ............................................................. XI-33
           4.    Dram Shop Liability to Employees.......................................... XI-34
           5.    Dram Shop Safe Harbor Provision .......................................... XI-36
                 a.     20801, Inc. v. Parker.................................................... XI-36
           6.    Recommendations to Providers ............................................... XI-39
             XI.      SPECIFIC SCENARIOS AND INTERESTING CASES

        Some types of premises liability occur with such frequency that an extensive body

of Texas case law has developed to address them. Other claim types occur rarely but

have received distinct treatment from Texas courts.                This section earmarks specific

premises liability scenarios and highlights interesting or hallmark cases for each type of

premises claim.

A.      Slip and Fall Cases

        For store owners conducting business with members of the public, probably the

most common premises liability claim comes in the form of slip and fall cases. These

business owners owe their invitee patrons the duty to warn or make safe any premises

conditions posing an unreasonable risk of harm, if the owners have actual or constructive

knowledge of the dangerous condition. 1

        A key requirement of a plaintiff’s slip and fall case is the element of notice. To

prevail, it must be established that the defendant had actual or constructive notice of the

condition causing the plaintiff to slip and fall, quite often occurring in the form of a

foreign substance on the premises floor. To satisfy the notice element, the plaintiff can

prove: (1) the defendant created the dangerous condition; (2) the defendant actually knew

of the dangerous condition; 2 or (3) it is more likely than not that the condition had existed




1
  Wal-Mart Stores v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).
2
  Actual notice can be shown in a number of ways, including but not limited to: evidence that a customer
told defendant’s employee of the condition (Wal-Mart Stores v. Chavez, 81 S.W.3d 862, 864 (Tex. App.—
San Antonio 2002, no pet.); evidence that employees saw customers being affected by the condition
(Reliable Consultants v. Jaquez, 25 S.W.3d 336, 343 (Tex. App.—Austin 2000, pet denied); and evidence
that the defendant took precautionary measures to reduce the danger caused by the condition (Reliable
Consultants, 25 S.W.3d at 343).


                                                 XI-1
for a long enough period of time to give the owner a reasonable opportunity to discovery

it. 3

        1.       Dangerous Conditions Created by Self-Service Bins and Displays.

Creation of the dangerous premises condition, often seen in self-service bins and product

displays, can subject the store owner to premises liability. The mere existence of a

customer sampling display created by the store owner can not be evidence of a dangerous

premises condition posing an unreasonable risk of harm. 4 “[T]he question of whether a

self-service display is unreasonably dangerous can only be answered by considering the

nature of the display in light of, but not limited to, its surroundings.” 5 For example, a

stack of 30-pound mirrors for sale displayed vertically leaning against a support post

without utilizing a storage bin was found to be unreasonably dangerous. 6 Likewise, a

slanted self-service grape display over a linoleum floor without any protective floor

covering in the area where grapes would likely fall created an unreasonably dangerous

premises condition. 7 However, a grape display in a level sampling bowl on a display

table with three-inch railings that was positioned on a non-skid floor surface with floor

mats and placed near warning cones was not unreasonably dangerous.8 Although such

displays may not be inherently dangerous, when dangerous conditions resulting from the

displays are reasonably foreseeable, store owners should take precautions to safeguard

the area around the displays against any reasonably foreseeable dangerous conditions that

are likely to occur.


3
  Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).
4
  Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 29 (Tex. App.—Tyler 2003, pet. denied).
5
  Id. (comparing H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218, 219 (Tex.1999) and Corbin v.
Safeway Stores, Inc., 648 S.W.2d 292, 297 (Tex.1983)).
6
  Id. at 30.
7
  Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 297 (Tex.1983).
8
  H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218, 218-219 (Tex.1999)


                                                XI-2
        2.       Actual Knowledge of High Risk of Dangerous Condition. Even when

the store owner did not create the dangerous premises condition, liability can be imposed

if the defendant had actual knowledge of a high risk of the condition’s existence. This

liability can be imposed even if the defendant did not have actual knowledge of the

specific instance of the condition that caused a plaintiff’s injury on a particular occasion.

        In Corbin v. Safeway Stores, Inc. 9 the Texas Supreme Court found that proof that

a store owner failed to use reasonable care to protect its customers from the known and

unusually high risks accompanying a particular premises condition was enough to get the

premises liability question before a jury, “even in the absence of evidence showing the

storeowner’s actual or constructive knowledge of the presence on the floor of the specific

object causing the fall.” 10 Corbin involved a self-service bin of grapes inside the store;

because Safeway had actual knowledge of the “unusually high risk associated with its

grape display,” it was required to take reasonable precautions to safeguard or warn of the

risks. 11 The Court later stated “Safeway did not have to know that a particular grape was

on the floor at a particular time because it knew that grapes would be on the floor due to

the nature of the display.” 12

        In Crosby v. Minyard Food Stores, Inc., 13 Plaintiff tripped on a mat at the

entrance to the store; the mat was buckled and had a bump in it. Minyard claimed there

was no evidence that it knew or should have known about the bump in the entry mat that

caused Plaintiff’s fall. The court found that even if Minyard was unaware of the mat’s

bump at the time of Plaintiff’s accident, knowledge that there was a high risk that the

9
  648 S.W.2d 292 (Tex. 1983).
10
   Id. at 295.
11
   Id. at 297-98.
12
   Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992).
13
   122 S.W.3d 899 (Tex. App.—Dallas 2003, no pet.).


                                                 XI-3
dangerous condition would occur was enough to subject a defendant to liability.14 In

Crosby, a Minyard employee testified that he had to straighten the mat in question

between 48-86 times during an eight-hour shift, and accident reports indicated that

several other customers had tripped and fallen on the mat prior to Plaintiff’s incident. 15

Thus, evidence of the mat’s tendency to buckle and evidence of Minyard’s knowledge

that the recurrent bumps were causing customers to trip and fall served as actual notice of

the high risk of the dangerous condition that caused Plaintiff’s slip and fall, which

subjected the store owner to liability. 16

        And in National Convenience Stores, Inc. v. Brevia, 17 the court found that

knowledge of an unreasonable risk of harm caused by iced-drink displays subjected a

convenience store to premises liability even when the store employees were unaware of

the particular instance of spilled ice and water causing the plaintiff’s fall. In Brevia, the

convenience store manager testified to knowledge of the owner’s heightened concern

about ice and water near iced-barrel drink displays and knowledge that ice could spill out

of the display onto the floor when customers removed drinks from the barrel displays.

The store’s safety workbook contained instructions for safeguarding the area around such

displays, though the recommended absorbent safety mats were not in use at the time of

the plaintiff’s fall. The court held that knowledge that falling ice was a common problem

associated with the nature of the display combined with the company policy requiring

mats under such displays was sufficient evidence for a finding that the defendant had




14
   Id. at 901.
15
   Id.
16
   Id. at 902.
17
   73 S.W.3d 518 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).


                                                 XI-4
knowledge of a premises condition posing an unreasonable risk of harm and sufficient

evidence for a finding of liability. 18

        3.       Constructive Knowledge and the Time-Notice Rule.

        Constructive knowledge of a dangerous condition can be shown by proof that the

dangerous condition in question (i.e., the foreign substance on a store floor) had existed

long enough that the owner reasonably should have discovered it. This is known as the

“time-notice rule,” and the Texas Supreme Court has repeatedly held that “temporal

evidence best indicates whether the owner had a reasonable opportunity to discover and

remedy a dangerous condition.” 19 Circumstantial evidence is sufficient to prove this

point, but must establish that it is more likely than not that the dangerous condition

existed long enough to give the proprietor a reasonable opportunity to discovery the

condition. 20

                 a.       Proximity to Condition.         A store employee’s mere proximity to a

dangerous condition does not supplant the time-notice rule. As the Texas Supreme Court

explained:

        An employee's proximity to a hazard, with no evidence indicating how
        long the hazard was there, merely indicates that it was possible for the
        premises owner to discover the condition, not that the premises owner
        reasonably should have discovered it. Constructive notice demands a more
        extensive inquiry. Without some temporal evidence, there is no basis upon
        which the factfinder can reasonably assess the opportunity the premises
        owner had to discover the dangerous condition.21

Without the temporal requirement of the time notice rule, owners would face strict

liability for any dangerous condition on the premises.

18
   Id. at 523.
19
   Wal-Mart Stores, Inc. v. Reece, 81 SW.3d 812, 816 (Tex. 2002). See also Wal-Mart Stores, Inc. v.
Spates, 186 S.W.3d 566, 567-68 (Tex. 2006).
20
   Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998) (emphasis added).
21
   Reece, 81 S.W.3d at 816.


                                                  XI-5
        This is not to say that an employee’s proximity to the foreign substance isn’t

relevant evidence; it is. Proximity evidence is relevant when assessing what constitutes a

reasonable time for a premises owner to discover a dangerous condition.22              If the

dangerous condition is conspicuous (i.e., a large puddle of dark liquid on a light floor), an

employee’s close proximity to the condition might shorten the amount of time a jury

would find it reasonable for the employee to have discovered it. 23 Likewise, even if the

dangerous condition is less conspicuous but the employee is in close proximity to the

condition for a continuous and significant period of time, the jury could use such

proximity in concluding the condition reasonably should have been discovered. 24 Thus,

evidence of an employee’s proximity to a foreign substance creating a dangerous

condition is relevant evidence in a slip and fall case, but proximity alone cannot lead to a

finding of constructive notice and result in an imposition of liability on the defendant.

                 b.      Constructive Knowledge Cases.        In    Wal-Mart      Stores    v.

Reece, 25 plaintiff slipped and fell in a puddle of clear liquid inside the snack bar area.

Plaintiff presented no evidence that the spill was conspicuous (it was the size of a small-

or medium-sized pizza and consisted of a clear liquid on a light colored tile floor), no

evidence that a Wal-Mart employee saw the spill despite the fact that the employee had

been in close proximity to the spill before the fall occurred, no evidence of how the spill

came to be on the floor, no evidence of how long the spill had been present prior to

plaintiff’s fall, and no evidence of the condition of the spill that might indicate the length




22
   Reece, 81 S.W.3d at 816.
23
   Id.
24
   Id.
25
   81 S.W.3d 812 (Tex. 2002).


                                            XI-6
of time it had been there. 26 Under these circumstances, the Texas Supreme Court held

that there was no evidence supporting the application of constructive notice to Wal-Mart.

        In Wal-Mart Stores, Inc. v. Spates, 27 a plaintiff tripped on an empty plastic six-

pack ring and injured her shoulder. She alleged that Wal-Mart was on constructive notice

of the dangerous condition, as the six-pack ring had been positioned several feet behind a

Wal-Mart employee for a 30-45 second time period prior to her fall. Analyzing “the

combination of proximity, conspicuity, and longevity,” the Supreme Court determined

that despite the employee’s close proximity to the condition, 30-45 seconds was not a

“continuous and significant” period of time to find that the employee should have noticed

and remedied the condition, thus precluding a finding of Wal-Mart’s constructive

knowledge of the condition. 28

        Generally, dirt, footprints and shopping cart tracks on or through a foreign

substance on the floor are insufficient to show the passage of time and satisfy the time-

notice rule. 29     Such evidence may show that the substance has been on the floor long


26
   Reece, 81 S.W.3d at 813, 816-17.
27
   Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566 (Tex. 2006).
28
   Id. at 567-68.
29
   See Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 937 (Tex. 1998) (dirt in macaroni salad salad lying
on a heavily-traveled aisle is no evidence of the length of time the macaroni had been on the floor); Furr's
Supermarkets, Inc. v. Arellano, 492 S.W.2d 727, 728 (Tex.Civ.App.-El Paso 1973, writ ref'd n.r.e.)
(evidence that macaroni noodles were “soiled, scattered and appeared as though other persons had passed
through the area and had been run over presumably by another cart or carts” was no evidence of the length
of time the macaroni noodles had been there); H.E. Butt Grocery Co. v. Rodriguez, 441 S.W.2d 215, 217
(Tex.Civ.App.-Corpus Christi 1969, no writ) (testimony that the grape on which plaintiff slipped was
squashed and muddy, that the floor was dirty, and that pieces of paper were strewn around nearby was no
evidence that the grape had been on the floor long enough to charge the store with notice); H.E. Butt
Grocery Store v. Hamilton, 632 S.W.2d 189, 191 (Tex.App.-Corpus Christi 1982, no writ) (testimony that
grapes were stepped on and that the juices from both red and green grapes had blended together was no
evidence of how long the grapes were on the floor); Kimbell, Inc. v. Roberson, 570 S.W.2d 587, 590
(Tex.Civ.App.-Tyler 1978, no writ) (testimony that two or three tracks that had been made through a
syrupy or jelly-like substance on which plaintiff slipped did not show that the substance had been there
long enough to charge the store with constructive notice); Robledo v. Kroger Co., 597 S.W.2d 560, 560-61
(Tex.Civ.App.-Eastland 1980, writ ref'd n.r.e.) (evidence of cart tracks through dirty water was no evidence
of constructive notice because they could have been made by another customer minutes before the fall);
Kimbell, Inc. v. Blount, 562 S.W.2d 10, 13 (Tex.Civ.App.-Austin 1978, no writ) (evidence of drying


                                                   XI-7
enough to accumulate dirt and debris, but it is equally likely that the evidence shows that

the substance had just fallen to the floor and was immediately contaminated; dirt and

tracking through the foreign substance does not provide temporal evidence.

        In contrast, in Kofahl v. Randall’s Food & Drugs, Inc., 30 evidence that the “large”

puddle of liquid in which Plaintiff slipped and fell was “very tacky and gummy” as if the

puddle was “starting to dry up” was found to be the “type of testimony [that would]

support a finding that a liquid on the floor has been there for a sufficient length of time to

charge the premises owner with constructive knowledge of its presence.”31 Evidence that

a spilled substance was “drying around the edges” (as opposed to a substance that was the

same dry consistency throughout and may have been that consistency from the moment it

was spilled) would be sufficient to allow a jury to find that the substance satisfied the

time-notice rule and to impose constructive knowledge upon the store owner. 32

B.      Security Cases

        1.       Duties Owed by a Hired Security Company.                    The duties of security

services as well as of owners, lessors, and those who contract to control premises fall

within the area of premises liability. Most of the duties owed by security companies

derive from some type of relationship or agreement, making most of the case law in this

area factually and contractually based. Analyzing the security contracts in each situation

and the derivative duties of the security companies involved is the typical beginning of

any case analysis.




footprints and tracks leading away from puddle of liquid was no evidence that the puddle had been there
long enough to put the store on constructive notice).
30
   151 S.W.3d 679 (Tex. App.—Waco 2004, pet. denied).
31
   Id. at 681.
32
   Id.


                                                XI-8
        A security company typically contracts or makes a verbal agreement with a

person or entity that retains control of the premises. Through that contract or agreement,

the control of the premises can be transferred and a duty can be created. In Texas, any

duty is commensurate with the right of control over property. 33 Therefore, the contract or

agreement will typically determine the type of duty owed by virtue of the amount of

control retained by the owner, lessee/lessor, or other parties controlling the premises. Of

note, Texas courts have held that absent contractual language, a plaintiff cannot be a

third-party beneficiary of a security contract. 34

        Case law finding a duty or lack thereof includes all types of security scenarios and

contracts. For instance, a contract/agreement between a security company and owner

must cover the area where the incident occurred, or no control over the premises existed.

For example, in a case in which Blockbuster employees were shot inside a closed and

locked store, the court found that the security contract implicitly did not cover the inside

area of the store and therefore no duty existed. 35 In another case in which a movie

theater employee was killed inside the theater itself, the court found that because the

security contract required the guard to patrol the common areas and not the theater’s

interior, no duty existed. 36

        A premises owner may attempt to share liability with its hired security company

in a variety of ways. The owner can argue unsatisfactory performance of the security

contract, but such arguments should be undertaken carefully as they can backfire against

the premises owner. In a case where a shopping center owner attempted to share blame

33
   Lefmark Mgmt Co. v. Old, 946 S.W.2d 52 (Tex.1997).
34
   Esquivel v. Murray Guard, Inc., 992 S.W.2d 536 (Tex. App.--Houston [14th Dist.] 1999, pet. denied).
35
   Coleman v. Equitable Real Estate Investment Mgmt, Inc., 971 S.W.2d 611 (Tex. App.--Dallas 1998, pet.
denied.
36
   Thompson v. CPN Partners, L.P. et al, 23 S.W. 3d 64 (Tex. App.--Austin 2000, no pet.).


                                                XI-9
with its security company, in response the jury found that the premises owner should

have hired more security guards. 37 Although the court found that the security company

assumed some control of the premises and therefore owed a resulting duty, the owner’s

duty to provide sufficient security was more actionable and logical. 38                 Indemnity

paragraphs are also typical in security contracts, and at least one court has upheld the

indemnity language in a contract between an owner and security company, although

specifically for the owner’s employee. 39 Adding security companies to lawsuits as third

party defendants or as responsible third parties is the most frequent choice, especially

since the liability is contractually based.

        2.      Owner Liability for Independent Contractor Security Personnel.                   In

most cases, a defendant cannot be held vicariously liable for the acts of independent

contractors.   However, an employer can be vicariously liable for the actions of an

independent contractor if the employer retains some control over the manner in which the

contractor performs the work. 40 In other words, if an employer controls the details and

methods of the independent contractor’s work to such an extent that the contractor cannot

perform the work as he chooses, employers can be vicariously liable for the independent

contractor’s actions. 41 An employer’s general directions to the independent contractor

are not sufficient control over the work to expose the employer to liability. 42

        A defendant can also be held liable for the acts of its independent contractors

under a theory of negligent hiring and under the personal character exception. The

37
   Lincoln Property Company v. DeShazo, 4 S.W3d 55 (Tex. App. —Fort Worth 1999, pet. denied).
38
   Id.
39
   Banzhaf v. ADT Security Systems Southwest, 28 S.W.3d 180, (Tex.App. —Eastland 2000, pet. denied).
40
   Lee Lewis Constr., Inc. v. Harrison, 70 S.W.2d 778, 783 (Tex. 2001).
41
   Koch Refining Co., v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999) (quoting RESTATEMENT (SECOND) OF
TORTS §414 cmt. c (1965)).
42
   Id.


                                              XI-10
personal character exception stands for the proposition that when a duty is imposed by

law on the basis of a concern for public safety, the party bearing that duty cannot escape

it by delegating it to an independent contractor; the duty is personal in nature and

considered nondelegable. 43 Prior Texas appellate courts had held that a premises owner

could be liable for the intentional torts of its independent contractor security personnel

under the personal character exception. 44 In 2006, however, the Texas Supreme Court

disagreed with this previous case law and declined to apply the personal character

exception to security personnel. 45

        In the Fifth Club case, a club hired an independent security guard to provide

security. The guard allegedly assaulted a visitor to the club, causing bodily injury. Based

on the guard’s conduct, the visitor sued the club for assault, false imprisonment and

intentional infliction of emotional distress, and the jury found in favor of the victim

awarding damages. The Court of Appeals affirmed. 46 However, the Texas Supreme

Court noted that in Texas, business owners are only held liable for acts of independent

contractors under the personal character exception if the work they perform is inherently

dangerous or if the work has been statutorily prescribed as nondelegable.47 In Fifth Club,

there was no allegation that security work was inherently dangerous, and the Court noted

that the Texas Legislature had not identified security work as carrying nondelegable

duties. Therefore, the Texas Supreme Court declined to recognize the personal character


43
   Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 787-88 (Tex. App.—El Paso 1996, writ denied).
44
   See Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 787-88 (Tex. App.--El Paso 1996, writ denied);
Ross v. Tex. One P'ship, 796 S.W.2d 206, 213 (Tex. App.--Dallas 1990), writ denied, 806 S.W.2d 222
(Tex.1991); Westhill Mgmt., Inc. v. Hefner, No. 01-87-000617-CV, 1988 WL 46399, at *3 (Tex. App.--
Houston [1st Dist.] May 12, 1988, writ denied) (not designated for publication).
45
   Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788 (Tex. 2006).
46
   Id. at 790-91.
47
   Id. at 795.


                                                 XI-11
exception with regards to security guards under the facts of the case, and refused to hold

the club vicariously liable for the acts of its hired security personnel. 48

C.      Sidewalk and Parking Lot Cases

        Texas business owners often face premises liability claims from alleged injuries

arising from parking lot conditions. As discussed in greater detail in Section II herein,

business owners owe their invitee patrons the duty to keep their premises safe and to use

reasonable care to protect the patron from reasonably foreseeable injuries. 49 To prevail

in a premises liability case, an invitee must prove, among other elements, that a condition

on the premises posed an unreasonable risk of harm to the invitee. 50 However, “[a]n

invitee is under a duty to exercise reasonable care for his own self-protection against

dangers of which he knows or ought to know.” 51

       1.        Muddy Conditions. In M.O. Dental Lab v. Rape, 52 the plaintiff filed a

premises liability action after slipping and falling on a “slippery mud substance” on the

pavement outside the M.O. Dental Lab. The Texas Supreme Court, relying on previous

decisions, stated that “ordinary mud or dirt in its natural state can and often does form a

condition posing a risk of harm, but not an unreasonable risk of harm.” 53 The Court

further observed that “[o]rdinary mud that accumulates naturally on an outdoor concrete

slab without the assistance or involvement of unnatural contact is, in normal

circumstances, nothing more than dirt in its natural state and therefore, is not a condition




48
   Id. at 796.
49
   Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 537 (Tex. 1975).
50
   M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex. 2004) (emphasis added).
51
   Wong v. Tenet Hosp. Ltd., 181 S.W.3d 532, 537 (Tex. App. – El Paso 2005, no pet.)
52
   139 S.W.3d 671 (Tex. 2004).
53
   Id. at 675 (emphasis added).


                                                 XI-12
posing an unreasonable risk of harm.” 54 Given that rainfall creating muddy conditions is

beyond the control of the premises owners, and that accidents involving naturally

accumulating mud and dirt are “bound to happen” regardless of precautions taken by

landowners, holding the landowner responsible for such conditions places too heavy a

burden on the premises owner. 55               In addition, the Supreme Court observed that

generally, invitees are at least as aware as landowners of the existence of visible mud that

has accumulated naturally outdoors and will often be in a better position to take

immediate precautions against injury. 56

        2.       Icy Conditions.           Given the warm climate across most of Texas,

liability claims related to snow and ice accumulation generally do not pose a recurring

problem for most premises owners. However, such premises conditions do occur, and

given the local population’s general inexperience with icy conditions, injuries and

damage claims often result.

        At least three courts of appeal have specifically addressed the issue of whether a

landowner has a duty to protect its invitees from conditions caused by the natural

accumulation of frozen precipitation on its parking lot and/or sidewalks. In Wal-Mart

Stores, Inc. v. Surratt, 57 the Eastland Court of Appeals thoroughly discussed the legal

history of the issue and concluded that as a matter of law a premises owner or operator

does not have a duty to protect its invitees from the natural accumulation of frozen




54
   Id. at 676.
55
   Id.
56
   Id.
57
   102 S.W.3d 437 (Tex. App. – Eastland 2003, pet. denied).


                                                 XI-13
participation on its parking lot because such an accumulation does not constitute an

unreasonably dangerous condition. 58

        In Surratt, a customer fell in a Wal-Mart parking lot after an ice storm in North

Texas. 59 There was no evidence that Wal-Mart took any measures to either remove the

ice from its parking lot or lessen the risk posed by the ice. 60 In reaching its conclusion,

the court opined: “We are reluctant to require a premises owner/operator to expand a

great deal of physical and financial effort to protect its invitees from a naturally occurring

condition which usually disappears on its own in a short period of time.” 61 .

        Relying both on the Texas Supreme Court’s decision in Rape (involving the

natural accumulation of mud) and the Eastland Court of Appeals’ decision in Surratt

(involving the natural accumulation of ice), in Gagne v. Sears, Roebuck & Co 62 . the

Waco Court of Appeals held that “the natural accumulation of ice on a sidewalk near the

entrance of a business does not pose an unreasonable risk of harm to invitees.” In Gagne,

a customer slipped on ice on the sidewalk near the Sears entrance after a winter storm

brought accumulations of ice to Wichita Falls. 63               Employees of the mall had been

spreading salt on the mall sidewalks but had not reached the area where Sears was

located. 64    In evaluating Surratt, the Gagne court stated, “we see no basis for

differentiating between a natural accumulation of ice in the parking lot and one on a



58
   Id. at 445. See also Griffin v. 1438, Ltd., No. 2-03-255-CV, 2004 WL 1595787, *4 (Tex. App. – Fort
Worth July 15, 2004, no pet.) (not designated for publication), in which the Fort Worth Court of Appeals
reached the same conclusion on the issue of whether a premises owner had a duty to protect an invitee from
the natural accumulation of frozen participation on its parking lot.
59
   Id. at 439.
60
   Id.
61
   Id. at 443.
62
   201 S.W.3d 856, 858 (Tex. App.—Waco 2006, no pet.).
63
   Id. at 856.
64
   Id.


                                                 XI-14
sidewalk near a business entrance. 65 After reviewing the Supreme Court’s decision in

Rape, the Gagne court concluded that the same rule that applies for natural accumulation

of ordinary mud applies to the natural accumulation of ice. 66 Therefore, the court held

that “the natural accumulation of ice on a sidewalk near the entrance of a business does

not pose an unreasonable risk of harm to invitees.” 67

D.      Bed Bug Cases

        “Bed bugs,” formally known as cimex lectularius, were all but eradicated during

the latter part of the 20th century.    Unfortunately, the past few years have seen a

resurgence of the pests throughout the U.S., Europe and Australia, and civil litigation is

beginning to reflect the bed bug revival.

        A rise in bed bug infestations has been seen across the U.S., with numerous

incidents in New York, San Francisco, and recently, across Texas. Thought to be caused

by a surge in global travel and mobility combined with the banning of potent pesticides

such as DDT, new infestations are occurring frequently and are often difficult to eradicate

once they occur. The New York Times quoted Michael F. Potter, an urban entomologist

at the University of Kentucky and an authority on bed bugs, as saying, “This is one

serious issue. This will be the pest of the 21st century—no question about it.” 68

        Several Texas colleges have reported problems with bed bugs. In the past year,

Texas A&M spent at least $37,000 to utilize bed bug-sniffing dogs and currently plans to

call in an out-of-state company called Temp-Air that uses an eradicator to heat the

infested dorm room overnight to 130 degrees, killing the bedbugs but leaving students'


65
   Id. at 858.
66
   Id.
67
   Id.
68
   New York Times, October 15, 2006.


                                            XI-15
belongings unharmed. 69 The University of Texas at Dallas has also experienced bed bug

infestations, with school officials acknowledging that 15 campus units were found to

have bed bugs, resulting in more than 100 complaints. Entomologist Dr. Mike Merchant

states, “The incidents of bed bugs has gone up considerably.” 70

        Reports of bed bugs have burdened apartments, five-star hotel chains, cruise lines,

bus terminals, movie theaters and numerous colleges and universities. 71 Bed bugs are

most active in the middle of the night, and emerge to feed on human blood in the same

manner as fleas and mosquitos. Bed bugs are most abundant in rooms where people

sleep, and often hide in bed linens or in walls, carpet and furniture nearest the sleeping

location, making premises owners providing sleeping locations ripe for bed bug

litigation. There is no proof that bed bugs can transmit disease to humans, but scratched

bites can lead to secondary infection, and there is a general psychological disgust of the

insects that could easily lead to mental and emotional distress claims.

        After a “bedbug epidemic” hit New York City, 72 bed bug claims began to appear

in the courts, often from renters seeking to compel their landlords to exterminate.

Although Texas courts have not yet dealt with the issue in any reported cases, it seems

likely that it is only a matter of time before Texas plaintiffs begin asserting bed bug

claims in premises liability contexts. When such claims occur, the analysis will mirror

that of other premises claims and courts will use the relevant standard of care applicable

in other premises liability contexts.




69
   U.S.A. Today, August 20, 2008.
70
   www.nbc5i.com, June 8, 2007.
71
   U.S.A. Today, August 20, 2008.
72
   As reported in headlines in the New York Daily News, December 30, 2007.


                                                XI-16
E.      No Duty Defense and Open and Obvious Defect Cases

        In a case reviving a premises liability defense thought to be long-abolished, the

Texas Supreme Court recently held that a premises owner has no duty to warn an

independent contractor of open and obvious dangers in areas of work over which the

owner exercised no control.

        In General Electric Company v. Moritz, 73 Plaintiff Arthur Lee Moritz worked for

an independent contractor that delivered General Electric parts to customers. Part of

Plaintiff’s job was to load the parts onto his pick-up truck at the GE warehouse, which he

had done every workday for eighteen months. The parts were often removed from GE’s

warehouse via a concrete ramp without guardrails and loaded by hand onto Plaintiff’s

truck. On the date in question, Plaintiff fell off the ramp’s side onto the driveway as he

was loading his truck, thereby sustaining injuries. Plaintiff sued GE under negligent

activity and premises liability theories. 74

        The Court noted the general rule that “a landowner is liable to employees of an

independent contractor only for claims arising from a pre-existing defect rather than from

the contractor’s work, and then only if the pre-existing defect was concealed.” 75 Because

Plaintiff’s employer, as an independent contractor, controlled the details and methods of

its own work, including the labor and equipment it used to undertake its work, Plaintiff’s

employer was in a better position than GE to safeguard the way in which the work was

performed:

        [O]ne who hires an independent contractor generally expects the
        contractor to take into account any open and obvious premises defects in
        deciding how the work should be done, what equipment to use in doing it,

73
   257 S.W.3d 211 (Tex. 2008).
74
   Id. at 213-14.
75
   Id. at 215.


                                               XI-17
        and whether its workers need any warnings. Placing the duty on an
        independent contractor to warn its own employees or make safe open and
        obvious defects ensures that the party with the duty is the one with the
        ability to carry it out. 76

Although GE was obligated to warn Plaintiff of any concealed defects he might

encounter while performing his work, the absence of handrails on the ramp was not

concealed. The Court stated that because owners have no duty to warn an independent

contractor of open and obvious defects, GE had no duty to warn Plaintiff that the ramp he

had been using for the past eighteen months had no handrails. 77

        When Moritz was reviewed at the appellate level, the Court of Appeals held that

GE still owed Plaintiff a duty to warn of or make safe the ramp because the Texas

Supreme Court abolished all no duty defense arguments thirty years ago in Parker v.

Highland Park. 78 In Moritz, despite a dissenting opinion three justices, the majority of

the Texas Supreme Court plainly stated that Parker did not abolish the no duty rule;

rather, Parker abolished a certain kind of no duty defense wherein the defendant clearly

owes a duty as a matter of law, but attempts to use the no duty defense to force the

plaintiff to prove the plaintiff’s lack of knowledge of a particular hazard. 79

        The Court explained that whether a duty exists is a matter of law: because a

landowner owes no duty to an independent contractor to warn of open and obvious

premises dangers, the Moritz analysis stops there. If, however, a duty is owed as a matter

of law, as it was in the Parker case where a landlord was obligated to provide a safe

stairway to a second-floor apartment, comparative negligence principles must be used to

determine the facts known by the parties and whether any relevant duties were

76
   Id. at 215-16.
77
   Id. at 216.
78
   565 S.W.2d 512, 517 (Tex. 1978).
79
   Moritz, 257 S.W.3d at 216.


                                            XI-18
breached. 80 The Moritz court ended its opinion by quoting itself from the 1967 case of

Delhi-Taylor Oil Corp. v. Henry:

        While an owner owes a duty to employees of an independent contractor to
        take reasonable precautions to protect them from hidden dangers on the
        premises or to warn them thereof, an adequate warning to or full
        knowledge by the independent contractor of the dangers should and will
        be held to discharge the landowner’s alternative duty to warn the
        employees. 81

        The Court’s ruling in Moritz opens the door for assertion of the no duty defense

and may encourage defendants in other factual scenarios to claim they owed no duty in

their premises liability cases. Defendants outside the independent contractor or lessor

contexts, however, may not be successful with this argument. The Moritz court noted

that limiting premises liability to concealed hazards applied to cases involving

independent contractors as well as cases involving lessors who relinquish possession or

occupancy of premises. 82 This limitation is effected because control of the premises is

turned over to the independent contractor or the lessee “in a way that is not true of

shoppers, sightseers, or other business invitees.” 83             Thus, post-Moritz defendants in

independent contractor cases and lessor/lessee cases involving open and obvious hazards

may use no duty arguments to obtain claim dismissal via summary judgment, premises

owners who retain control of the premises may have difficulty using the no duty defense

to avoid liability.

F.      Dram Shop Cases

        Dram shop cases do not fall squarely within premises liability law, but such

claims can arise in conjunction with premises claims and are worth mentioning here as

80
   See id. at 216-17.
81
   Id. at 218 (citing Delhi-Taylor Oil Corp v. Henry, 416 S.W.2d 390, 394 (Tex. 1967)) (emphasis added).
82
   Moritz, 257 S.W.3d at 215.
83
   Id.


                                                 XI-19
they are of great relevance to certain premises owners dealing with public patrons. The

Texas Dram Shop Statute creates an exclusive remedy against “providers” of alcohol for

individuals harmed by an intoxicated person who was “provided” an alcoholic beverage

when they were obviously intoxicated, and the intoxication of that person was the

proximate cause of damages suffered. The Dram Shop Act is the only recourse an

injured party has against a provider of alcohol for providing alcohol to an intoxicated

person; all other common law causes of action are prohibited.

           1.       Applicable Statutes.       The Texas Dram Shop Statute provides:

           § 2.01    Definitions

           In this chapter:

           (1)      “Provider” means a person who sells or serves an alcoholic
                    beverage under authority of a license or permit issued under the
                    terms of this code or who otherwise sells an alcoholic beverage to
                    an individual.

           (2)      “Provision” includes, but is not limited to, the sale or service of an
                    alcoholic beverage. 84

           § 2.02    Causes of Action

           (a)      This chapter does not affect the right of any person to bring a
                    common law cause of action against any individual whose
                    consumption of an alcoholic beverage allegedly resulted in causing
                    the person bringing the suit to suffer personal injury or property
                    damage.

           (b)      Providing, selling, or serving an alcoholic beverage may be made
                    the basis of a statutory cause of action under this chapter and may
                    be made the basis of a revocation proceeding under Section 6.01(b)
                    of this code upon proof that:

                    (1)     at the time the provision occurred it was apparent to the
                            provider that the individual being sold, served, or provided
                            with an alcoholic beverage was obviously intoxicated to the

84
     TEX. ALCO. BEV. CODE § 2.01 et. seq. (Vernon 2005).



                                                  XI-20
                         extent that he presented a clear and present danger to
                         himself and others; and

                 (2)     the intoxication of the recipient of the alcoholic beverage
                         was a proximate cause of the damages suffered. 85

        § 2.03      Statutory Remedy

        The liability of providers under this chapter for the actions of their
        customers, members, or guests who are or become intoxicated is in lieu of
        common law or other statutory law warranties and duties of providers of
        alcoholic beverages. This chapter does not impose obligations on a
        provider of alcoholic beverages other than those expressly stated in this
        chapter. This chapter provides the exclusive cause of action for providing
        an alcoholic beverage to a person 18 years of age or older. 86

Other relevant portions of the Texas Alcoholic Beverage Code include:

        § 6.05      Corporate Liability

        A corporation with an ownership interest in a corporation holding a permit
        under section 6.03(k) of this code and which shares space, employees,
        business facilities, or service is subject to liability under Chapter 2 of this
        code. 87

        § 6.03(k)

        A requirement under this code that 51 percent or more of the stock of a
        corporation be owned by a person or persons who were citizens of this
        state for a one-year period preceding the date of the filing of an
        application for a license or permit does not apply to a corporation
        organized under the laws of this state that applies for a license or permit
        under Chapters 25-34, Chapter 44, Chapters 48-51, Chapters 69-72, or
        Chapter 74 of this code if:

        (1)      all of the officers and a majority of the directors of the applicant
                 corporation have resided within the state for a one-year period
                 preceding the date of the application and each officer or director
                 possesses the qualifications required of other applicants for permits
                 and licenses;

        (2)      the applications corporation and the applicant’s shareholders have
                 no direct or indirect ownership or other prohibited relationship

85
   TEX. ALCO. BEV. CODE § 2.02 et. seq. (Vernon 2005).
86
   TEX. ALCO. BEV. CODE § 2.03 et. seq. (Vernon 2005).
87
   TEX. ALCO. BEV. CODE § 106.14(a) (Vernon 2005).


                                                XI-21
                 with others engaged in the alcoholic beverage industry at different
                 levels as provided by Chapter 102 of this code and other provisions
                 of this code;

        (3)      the applicant corporation is not precluded by law, rule, charter, or
                 corporate bylaw from disclosing the applicant’s shareholders to the
                 commission; and

        (4)      the applicant corporation maintains its books and records relating
                 to its alcoholic beverage operations in the state at its registered
                 office or at a location in the state approved in writing by the
                 commission. 88

        § 106.14       Actions of Employee

        (a)      For purposes of this chapter and any other provision of this code
                 relating to the sales, service, dispensing, or delivery of alcoholic
                 beverages to a minor or to an intoxicated person or the
                 consumption of alcoholic beverages by a minor or an intoxicated
                 person, the actions of an employee shall not be attributable to the
                 employer if:

                 (1)     the employer requires its employees to attend a
                         commission-approved seller training program;

                 (2)     the employee has actually attended such a training
                         program; and

                 (3)     the employer has not directly or indirectly encouraged the
                         employee to violate such law. 89

        2.       Dram Shop Liability.                 The Texas Dram Shop Statute governs the

liability of “providers” of alcoholic beverages. 90 A “provider” is a person who sells or

serves alcoholic beverages pursuant to a license or permit issued by the TABC or who

otherwise sells alcoholic beverages. 91 The statute applies to “commercial providers.” 92

The Statute establishes the exclusive cause of action against a commercial provider for


88
   TEX. ALCO. BEV. CODE §6.03(k) (Vernon 2005).
89
   TEX. ALCO. BEV. CODE §106.14(a) (Vernon 2005).
90
   TEX. ALCO. BEV. CODE §2.02 (Vernon 2005).
91
   TEX. ALCO. BEV. CODE §2.01(1) (Vernon 2005).
92
   Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993).


                                                XI-22
selling or serving alcoholic beverages to a person 18 years or older. 93                The Provider is

liable if:

        a.       At the time the alcohol was provided;

        b.       It was apparent to the provider;

        c.       That the recipient was obviously intoxicated;

        d.       To the extent that the recipient presented a clear danger to himself
                 or others. 94

The Provider does not have to actually witness intoxicated conduct. It is enough that the

recipient’s intoxication was apparent, i.e., visible, evident, and easily observed. 95 A

corporation with an ownership interest in a corporation holding a permit and which

shares space, employees, business facilities, or service is also subject to liability under the

Texas Dram Shop Statute. 96

        The Texas Dram Shop Statute does have a “Safe Harbor” provision that protects

providers from liability if they follow certain procedures. A commercial provider is not

liable if:

        (1)      The employer requires employees to attend a seller training
                 program that has the approval of the TABC;

        (2)      The employee that served has actually attended a commission
                 approved seller training program; and

        (3)      The employer has not directly or indirectly encouraged the
                 employee to violate the law. 97



93
   TEX. ALCO. BEV. CODE §2.03 (Vernon 2005); Southland Corp. v. Lewis, 940 S.W.2d 83, 84 (Tex. 1997).
94
   TEX. ALCO. BEV. CODE § 2.02(b)(1) (Vernon 2005); Smith v. Sewell, 858 S.W. 2d 350, 354 (Tex. 1993).
95
   Bruce v. KKB, Inc., 52 S.W.3d 250, 256 (Tex. App. – Corpus Christi 2001, pet. denied); Perseus, Inc. v.
Canody, 995 S.W.2d 202, 206 (Tex. App. – San Antonio 1999, no pet.).
96
   TEX. ALCO. BEV. CODE § 106.14(a) (Vernon 2005).
97
   Id.


                                                 XI-23
Examples of encouragement to violate the law include: (a) A policy to serve watered

down drinks to customers who show signs of intoxication rather than requiring such

customers to not be served; 98 and (b) Instructions from management to wait staff to keep

serving obviously intoxicated people until the manager decides service should stop. 99

        The TABC adopts rules and policies establishing minimum requirements for

approved seller training programs.           The TABC may approve programs meeting the

requirements that are privately sponsored or given at community colleges. 100 The TABC

can also approve seller-training programs sponsored by a licensee or permittee to train its

own employees. 101 However, a TABC finding that a provider complied with the safe

harbor does not estop the plaintiff from litigating the issue. 102

        In 2001, the Fort Worth Court of Appeals held that the Legislature did not intend

for a plaintiff to be able to recover punitive damages under Texas’ Dram Shop Statute. 103

Despite at least two prior decisions in which Texas courts (including the Fort Worth

Court of Appeals) reviewed evidentiary decisions regarding exemplary damages in dram

shop cases, no Texas court had ever reviewed whether such damages were

recoverable. 104

        There is scant case law on whether an establishment’s liquor license holder may

be individually liable. A 1996 Court of Appeals case notes in a footnote that the liquor

license holder in El Chico Corp. v. Poole, 105 could be held liable for a third party’s


98
   Persues, Inc. v. Canody, 995 S.W.2d 202, 209 (Tex. App. – San Antonio 1999, no pet.).
99
   Cianci v. M.Till, Inc., 34 S.W.3d 327, 330 (Tex. App. – Eastland 2000, no pet.)
100
    TEX. ALCO. BEV. CODE §106.14(b) (Vernon 2005).
101
    TEX. ALCO. BEV. CODE §106.14(c) (Vernon 2005).
102
    Cianci, 34 S.W.3d at 330-31
103
    See Steak & Ale of Texas, Inc. v Borneman, 62 S.W.2d 898, 911 (Tex. App. – Fort Worth 2001, no pet.).
104
    See id. at 906, fn 2.
105
    723 S.W.2d 306, 308 & 377 (Tex. 1987) (superceded by the “Dram Shop” statute).


                                                 XI-24
actions. 106 The Poole court, however, never specifically addressed the liability of one

whose responsibility to a bar is to merely hold its liquor license. Under the Alcohol and

Beverage Code, a “licensee” is defined as one who holds a liquor license. 107 However,

the Code’s section concerning civil liability does not refer to licensees, but rather to the

providers of beverages. 108

        3.       Dram Shop Cases and Proportionate Responsibility.                      The       Texas

Supreme Court recently decided that the Proportionate Liability Statute, Chapter 33 of

the Texas Civil Practice & Remedies Code, applies to the Dram Shop Act.

                 a.       F.F.P. Operating Partners, L.P. v. Dueñez.             In F.F. P. Operating

Partners, L.P. v. Dueñez, 109 the Texas Supreme Court reversed its earlier position that a

provider is vicariously liable for damages caused by its intoxicated patron without offset

for the intoxicated patron’s liability.

        The facts of the Dueñez case were as follows: After spending the day cutting

firewood while consuming a case and a half of beer, Roberto Ruiz drove his truck to a

Mr. Cut Rate convenience store owned by F.F.P. Operating Partners, L.P. and purchased

a twelve-pack of beer. The store's assistant manager, Carol Solis, sold the beer to Ruiz.

Ruiz then climbed into his truck, opened a can of beer, and put the open beer can between

his legs. There was conflicting testimony about whether Ruiz actually drank any of the

beer that he purchased at Mr. Cut Rate. Ruiz then drove onto a nearby highway and


106
    Chambers v. Hermann Hosp. Estate, 961 S.W.2d 177, 192, fn 17 (Tex. App. – Houston [1st Dist.] 1996),
rev’d on other grounds, 970 S.W.2d 542 (Tex. 1998).
107
    See TEX. ALCO. BEV. CODE. §1.04(16) (Vernon 2005).
108
    Under section 2.01(a) of the Code, a “provider” means a person who sells or serves an alcoholic
beverage under authority of a license or permit issued under the terms of this code or who otherwise sells
an alcoholic beverage to an individual.
109
    237 S.W.3d 680 (Tex. 2007).


                                                 XI-25
swerved into oncoming traffic several times. Two cars dodged his truck to avoid a

collision. As he crossed a bridge approximately a mile and a half from the Mr. Cut Rate

convenience store, Ruiz swerved across the center line, hitting the Dueñezes' car head-on.

All five members of the Dueñez family suffered injuries. Ruiz was arrested at the

accident scene for drunk driving. 110

         Mr. Ruiz pled guilty to intoxication assault and was sentenced to prison. The

Dueñezes brought a civil suit against F.F.P., Ruiz, Solis, Nu-Way Beverage Company,

and the owner of the land where Ruiz had spent the afternoon cutting firewood and

drinking. F.F.P. filed a cross-action against Ruiz, naming him as a responsible third-party

and a contribution defendant. The Dueñezes thereafter nonsuited all defendants except

F.F.P. 111

         At the pretrial conference, the Dueñezes obtained a partial summary judgment

that Chapter 33 of the Texas Civil Practice and Remedies Code (CPRC), the

proportionate responsibility statute, did not apply to this case. 112 Chapter 33 of the

CPRC provides:

         The trier of fact, as to each cause of action asserted, shall determine the
         percentage of responsibility, stated in whole numbers, for the following
         persons with respect to each person's causing or contributing to cause in
         any way the harm for which recovery of damages is sought, whether by
         negligent act or omission, by any defective or unreasonably dangerous
         product, by other conduct or activity that violates an applicable legal
         standard, or by any combination of these:

         (1)         each claimant;
         (2)         each defendant;
         (3)         each settling person; and



110
    Id. at 682.
111
    Id. at 682-83.
112
    Id. at 683.


                                                 XI-26
        (4)     each responsible third party who has been designated under
                Section 33.004. 113

The trial court then severed F.F.P.'s cross-action against Ruiz, leaving F.F.P. as the only

defendant for trial.

        The Dueñezes' claim against F.F.P. proceeded to trial. At the charge conference,

the trial court refused to submit questions for determination of Ruiz's negligence. The

court also failed to submit questions on the proportionate responsibility of Ruiz and

F.F.P. The jury found that when the alcohol was sold to Ruiz, it was “apparent to the

seller that he was obviously intoxicated to the extent that he presented a clear danger to

himself and others,” and that Ruiz's intoxication was a proximate cause of the collision.

The jury returned a $35 million verdict against F.F.P., upon which the trial court rendered

judgment. The court of appeals affirmed the trial court's judgment, holding:

        [I]n third-party actions under the Dram Shop Act in which there are no
        allegations of negligence on the part of the plaintiffs, a provider is
        vicariously liable for the damages caused by an intoxicated person, and
        such a provider is not entitled to offset its liability by that of the
        intoxicated person. 114

        In reaching that conclusion, the lower court distinguished the Texas Supreme

Court’s decision in Smith v. Sewell, 115 in which it held that the comparative responsibility

statute applied to dram-shop causes of action. The court of appeals concluded that

Sewell's holding was limited to first-party actions in which the intoxicated patron is suing

for his own injuries and is inapplicable when the plaintiff is an innocent third party

injured by an intoxicated patron. The court also held that the trial court did not abuse its

discretion in severing F.F.P.'s contribution claim against Ruiz, concluding that because


113
    TEX. CIV. PRAC & REM. CODE ANN. §33.003(a) (Vernon 2008).
114
    Dueñez, 237 S.W.3d at 683.
115
    858 S.W.2d 350 (Tex. 1993).


                                              XI-27
F.F.P.'s statutory liability was vicarious and not direct, F.F.P. had an indemnity claim

rather than a contribution claim against Ruiz. 116

        F.F.P. filed a motion for rehearing. While the motion was pending, Xavier, Irene,

and Ashley Dueñez settled their claims against F.F.P. Only the claims of Pablo and

Carlos Dueñez against F.F.P. remained before the Court. 117 On April 8, 2005, the Court

granted F.F.P.'s motion for rehearing and the case was re-argued on November 30, 2005.

On November 3, 2006, the court issued an opinion reversing the court of appeals decision

and remanding the case for trial holding that the Proportionate Liability Statute applies to

claims under the Dram Shop Act. Plaintiffs filed a motion for rehearing which was

denied on May 11, 2007.

        In making its ruling, the court examined the purpose and history of the Dram

Shop Act. The Legislature enacted the Dram Shop Act to “deter providers of alcoholic

beverages from serving alcoholic beverages to obviously intoxicated individuals who

may potentially inflict serious injury on themselves and on innocent members of the

general public.” 118 If a Plaintiff meets the onerous burden of proof set forth by Section

2.02 of the Dram Shop Act, then the provider of the alcoholic beverages is liable for

damages proximately caused by its employees or patrons. 119

        In the Dram Shop Act, the Legislature created and imposed a duty, not recognized

at common law, on alcohol providers and increased the potential liability of providers as

a means of deterring providers from serving obviously intoxicated individuals. 120

Historically, the “rule of non-liability” held that an alcohol provider owed no duty to

116
    Dueñez, 237 S.W.3d at 683.
117
    Id.
118
    Dueñez, 237 S.W.3d at 683 (citing Sewell, 858 S.W.2d at 356).
119
    Id.
120
    Id.


                                                 XI-28
third persons for injuries caused by the provision of alcohol. 121 Additionally, providers

were generally able to avoid liability because the consumption of alcohol, rather than its

provision, was considered the sole proximate cause of injury to the patron and third

persons. Finally, even if the sale was a proximate cause of intoxication, injury was

considered to be an unforeseeable result of the patron's intoxication. The common law

effectively precluded dram shops from incurring liability when their intoxicated patrons

caused injury to third parties.

        In 1987 the Court in El Chico Corp. v. Poole discarded the “absolute rule of no

liability” and imposed a duty on a dram shop not to serve alcoholic beverages to a person

it knows or should know is intoxicated. 122              For the first time, the Court held that a

provider of alcohol is negligent as a matter of law when he knowingly sells an alcoholic

beverage to an intoxicated person, and the Court relaxed the standards for proving

proximate cause and foreseeability. 123 The claimant was still required to prove that the

dram shop's conduct was the proximate cause of his or her injury to recover.124 Shortly

after the Poole decision, the Legislature enacted the Dram Shop Act to address the

problem of providers' excessive provision of alcohol to patrons.

        The Dram Shop Act narrowed potential liability from Poole in several ways. 125

First, it made the Act the exclusive means of pursuing a dram shop for damages for

intoxication. 126    Second, as an element of liability, the patron must be obviously

intoxicated, not just intoxicated, when the dram shop serves him alcohol. 127 Nowhere in


121
    Id.
122
    El Chico Corp. v. Poole, 732 S.W.2d 306, 310 (Tex. 1987).
123
    Id. at 313-14.
124
    Id. at 313.
125
    Dueñez, 237 S.W.3d at 684.
126
    TEX. ALCO. BEV. CODE §2.03 (Vernon 2005).
127
    Id. at §2.02 (emphasis added).


                                                 XI-29
the legislation was the common law requirement that the claimant prove that the dram

shop proximately caused the injuries eliminated. 128 As under the common law, a dram

shop claimant “must establish that the liquor licensee's negligent conduct proximately

caused his injuries.” 129

        Chapter 33 of the Texas Civil Practice and Remedies Code governs the

apportionment of responsibility in cases within its scope. The 1995 version of the

proportionate responsibility scheme applies to the Dueñez case because the collision that

injured the Dueñez’s occurred in July 1997. 130 At that time, section 33.013 of the Civil

Practice and Remedies Code provided, with certain exceptions, that a defendant was

liable only for the percentage of responsibility found by the trier of fact, unless the

percentage of responsibility exceeded fifty percent. 131 If a defendant's percentage of

responsibility exceeded fifty percent, that defendant was jointly and severally liable for

all of the claimant's recoverable damages. 132 Section 33.003 provided that the fact finder

was to compare a defendant's responsibility with the responsibility of the claimant, other

defendants, and any responsible third party joined by a defendant. 133 The statute required

the trier of fact to apportion responsibility “with respect to each person's causing or

contributing to cause in any way the harm for which recovery of damages is sought,

whether by negligent act or omission, by any defective or unreasonably dangerous

product, by other conduct or activity that violates an applicable legal standard, or by any

combination of these....” 134 The Dueñez Court noted that the Chapter 33 applies to a


128
    Dueñez, 237 S.W.3d at 685.
129
    Id., citing Poole, 732 S.W.2d at 313.
130
    Dueñez, 237 S.W.3d at 687.
131
    Id. (citing TEX. CIV. PRAC. & REM.CODE §33.013).
132
    Id.
133
    Dueñez, 237 S.W.3d at 687 (citing TEX. CIV. PRAC. & REM.CODE §33.003).
134
    Id.


                                               XI-30
wide range of cases and that for those areas of cases for which the chapter did not apply,

Dram Shop actions were not specifically excluded. 135

        The Court noted that its review in Dueñez is confined to identifying the legislative

intent and applying it. 136 The Court states that even if it were to agree with the lower

court that holding a provider vicariously liable for a patron's intoxication may be a

legitimate public policy, the Court would still be constrained to faithfully apply the

Legislature's statutory proportionate responsibility scheme. The Court further stated that

by enacting Chapter 33, the Legislature made the policy decision that an innocent third

party, suing the intoxicated patron and the dram shop, could be burdened with the risk of

a joint tortfeasor’s insolvency. 137 The Court further observed that the broad coverage of

the proportionate responsibility statue was persuasive; the statute provides exceptions for

certain torts but claims against providers of alcohol are not among those exceptions. 138

        Prior to the Dueñez decision, the prevailing Texas Supreme Court decision on the

relationship between Chapter 33 and the Dram Shop Act was Smith v. Sewell. 139 When

Sewell was decided, Chapter 33 provided that it applied “[i]n an action to recover

damages for negligence ... or an action for products liability grounded in negligence.” 140

The Court held that the essential elements of a dram-shop action replicated those of a

negligence claim, therefore Chapter 33 applied to the Dram Shop Act. 141 The Dueñez

Court further provided that since the decision of the Sewell case in 1993, the Texas

legislature has amended both the proportionate liability statute as well as the Dram Shop


135
    Id.
136
    Id. at 688.
137
    Id.
138
    Id. at 689.
139
    858 S.W.2d 350 (Tex. 1993).
140
    TEX. CIV. PRAC. & REM. CODE §33.001(a) (Vernon 2008).
141
    Sewell, 858 S.W.2d at 355-56.


                                              XI-31
Act and has never excluded a cause of action against a provider of alcohol from

comparative or proportionate responsibility. 142

        b.       Biaggi v. Patrizio Restaurant, Inc.         Biaggi v. Patrizio Restaurant, Inc. 143

also presented the court with issues of comparative fault in the context of the Dram Shop

Act.

        In Biaggi, the plaintiff sued for injuries suffered from a one-car accident. Biaggi

was the passenger in a car driven by her male companion, Rivera, who was

intoxicated. 144 Patrizio filed a motion for summary judgment arguing that no act or

omission by Patrizio was the proximate cause of Biaggi’s injuries.145 Patrizio argued that

Biaggi’s own negligent act of riding with Rivera, while knowing he was intoxicated,

created new and independent cause.              The trial court granted Patrizio’s Motion for

summary judgment. The Dallas Court of Appeals reversed.146

        The facts of the case established that Biaggi and Rivera were living together at the

time of the accident. Biaggi dropped Rivera off at work at Patrizio’s Restaurant and then

used Rivera’s car to visit a friend. While Rivera was at work, Biaggi drove the car into a

ditch, and it had to be pulled out by a tow truck. Biaggi then returned to Patrizio to pick

up Rivera. When Biaggi arrived, Rivera was drinking with a customer and was obviously

intoxicated. Biaggi sat down and drank with them. Biaggi then told Rivera about driving

into the ditch and handed him his keys. The manager of Patrizio asked who was driving

Rivera home, and Biaggi responded she was. However, when Biaggi and Rivera left

Patrizio, Rivera would not allow Biaggi to drive because she had driven the car into the

142
    Dueñez, 237 S.W.3d at 692.
143
    149 S.W. 3d 300 (Tex. App. – Dallas 2004, pet. denied 2006)
144
    Id. at 302.
145
    Id.
146
    Id.


                                                 XI-32
ditch earlier that day. Biaggi knew Rivera was drunk, but they lived nearby, so she

thought they would be okay. About one mile into their trip, Rivera lost control of the car

and crashed into a large pole. A rescue team had to use a blowtorch to get Biaggi out of

the car. When the rescue team arrived, Rivera was legally intoxicated; Biaggi was not.

There was evidence that Biaggi had worked at several restaurants, and she knew the signs

of intoxication. Patrizio argued in its motion for summary judgment that Biaggi knew of

Rivera’s intoxication and the risks of riding with him, and she chose to do so. 147

        The Dallas Court of Appeals held that a new and independent cause that

extinguishes the liability of a party cannot arise out of an affirmative act of negligence by

either the plaintiff or the defendant. 148    Thus, any negligence by Biaggi, even if it

contributed to her injuries, did not extinguish Patrizio’s liability. 149 Intoxication of the

patron, not the negligence of the provider, is the causation standard under the Texas

Dram Shop Act. 150 Patrizio did not negate proximate cause as a matter of law. 151 The

Court of Appeals further held that comparative fault analysis applies to Dram Shop

cases. 152

                 c.       Smith v. Sewell.   In Patrizio and Dueñez the courts relied upon

Smith v. Sewell when considering comparative responsibility and the Dram Shop Act. In

Smith v. Sewell, 153 the Texas Supreme Court held that an individual who is provided

alcoholic beverages in violation of Chapter 2 of the Alcoholic Beverage Code and

subsequently injures himself may assert a cause of action against the provider.


147
    Id. at 302-03.
148
    Id. at 306.
149
    Id.
150
    Id. at 305.
151
    Id. at 310.
152
    Id.
153
    858 S.W.2d 350, 351 (Tex. 1993).


                                             XI-33
        Sewell was served four pitchers of beer, and then had a one-car accident where he

sustained personal injuries. 154 The Texas Supreme Court held that conduct for which a

provider may be liable under Chapter 2 is the same conduct, regardless whether the

intoxicated person injures himself or a third party. 155 The trier of fact must determine the

percentage of responsibility attributed to each of the parties involved in causing the

injury. 156 An intoxicated person can recover against the provider only if his percentage

of responsibility is equal to or less than fifty (50) percent. 157

        4.         Dram Shop Liability to Employees.                 D. Houston, Inc. v. Love 158

presented facts where an exotic dancer sued her employer, Treasures, for breaching its

common law duty to exercise reasonable care over its employees and independent

contractors. 159      The Texas Supreme Court held that the Dram Shop Act does not

abrogate a commercial alcohol seller’s common law duties as an employer to its

employees and independent contractors. 160          If an employer requires its independent

contractor to consume alcohol, to the level that the contractor becomes intoxicated, the

employer owes a duty to take responsible care and prevent that person from driving. 161

        On the day of the accident, Love had worked a day shift as a waitress at

Treasures. At 7:45 p.m., Love began working as an exotic dancer, switching her status

from employee to independent contractor. On that evening, Love consumed at least 12

drinks with customers and became intoxicated. Love’s last table dance was at 1:00 a.m.,

and she left approximately thirty minutes later. On Love’s way home, she hit a guardrail

154
    Id.
155
    Id. at 355.
156
    Id. at 356.
157
    Id.
158
    92 S.W.3d 450 (Tex. 2002).
159
    Id. at 452.
160
    Id.
161
    Id.


                                              XI-34
and suffered serious personal injuries. Love’s blood alcohol level was .225 at the time of

the accident (more than twice the then legal limit of 0.10). The record indicates that no

one at Treasures attempted to prevent Love from driving. There was evidence that at

11:00 p.m., Love was visibly intoxicated, such that she fell on a customer during a

private dance. 162

         Love sued Treasures, as her employer, for failing to use reasonable care in

exercising control over her as an independent contractor.163 The Texas Supreme Court

held that while Dram Shop Act is the exclusive remedy for “providing” an alcoholic

beverage, the Dram Shop Act did not bar Love’s common law claims as an independent

contractor against her employer. 164 Generally, an employer may breach a duty to its

independent contractor by failing to exercise its retained control over the contractor with

reasonable care. 165

         According to the record, the Treasures employee manual encouraged waitresses to

get an exotic dancer for their tables because customers will buy them drinks, increasing

sales. Waitresses are instructed to ask customers if “the lady” (dancer) would like a

drink, to increase alcohol sales. Love testified that waitresses report to management

when dancers don’t drink because it hurts alcohol sales. Dancers were pressured by

management to drink, and if dancers didn’t drink, they would lose their job. On the night

of the accident, Love performed approximately 25 table dances. Love never asked for a

drink; she only drank drinks that were given to her. 166   Love’s decision to drink was not

completely voluntary, making her case different than most Dram Shop cases because of

162
    Id.
163
    Id. at 452-53.
164
    Id. at 454.
165
    Id.
166
    Id. at 455.


                                           XI-35
facts indicating Love was required to drink by her employer. 167 The Texas Supreme

Court refused as a matter of law to hold that Love was solely responsible for her actions.

The Supreme Court affirmed the Court of Appeals decision, holding Treasures was not

entitled to summary judgment. 168

        5.       Dram Shop Safe Harbor Provision.                The Texas Dram Shop Act, while

imposing liability on alcoholic beverage providers who serve alcohol to obviously

intoxicated persons, contains a safe harbor provision in Section 106.14(a) that eliminates

liability if certain requirements are met. Essentially, Section 106.14(a) allows for an

avoidance of liability if a provider requires its employees to attend approved training

programs, the employees actually attend such training, and the provider does not

encourage the employee to violate the dram shop laws. 169 This liability avoidance is

unique to Texas’ Act; similar safe harbor provisions are not found in the dram shop

statutes of other states.170 The Texas Supreme Court recently decided a case of first

impression concerning the safe harbor provision of the Dram Shop Act.

                 a.       20801, Inc. v. Parker.          In 20801, Inc. v. Parker 171 a customer

brought premises liability and Dram Shop Act claims against a pool hall operator after

the customer was assaulted and injured by an allegedly intoxicated customer in the

parking lot on the pool hall’s premises. The Texas Supreme Court held that when the

Dram Shop Act’s safe harbor provision is asserted as a defense, the provider bears the

burden of proving it required its employees to attend the requisite training classes and

that the employees actually attended said classes, but that once the provider met its

167
    Id. at 456.
168
    Id.
169
    See TEX. ALCO. BEV. CODE §106.14(a) (Vernon 2005).
170
    20801, Inc. v. Parker, 249 S.W.3d 392, 395-96 (Tex. 2008).
171
    249 S.W.3d 392 (Tex. 2008).


                                                 XI-36
burden of proof, the burden shifts to the plaintiff to establish that the provider encouraged

the employee to violate the law. 172 The Court also held that the plaintiff’s burden can be

met by a showing of negligence rather than an intentional encouragement of the

employee to violate the law. 173

         The Plaintiff in Parker attended the grand opening of a Slick Willie’s Family Pool

Hall and while there was served between ten and fifteen free alcoholic beverages. At

least two of these beverages were served by the pool hall’s manager. When Plaintiff

became involved in an argument with another patron, both customers were escorted

outside.    While in the pool hall’s parking lot, Plaintiff was punched by the other

customer; Plaintiff fell to the ground, striking his head on the pavement and allegedly

sustaining a fractured skull and disabling brain injuries. 174

         Plaintiff sued the pool hall under both a premises liability theory and under the

Dram Shop Act. Defendant moved for summary judgment on the grounds that Plaintiff’s

premises liability claim was precluded by Section 2.03 of the Dram Shop Act 175 and on

the grounds that Defendant satisfied the Act’s safe harbor provision. The summary

judgment was granted and Plaintiff appealed.                  The Court of Appeals affirmed that

Plaintiff’s premises liability claim was precluded by the Dram Shop Act, but found that

Defendant had not met all requirements of the safe harbor provision. The Supreme Court




172
    Id. at 392.
173
    Id.
174
    Id. at 395.
175
    Section 2.03 states: “The liability of providers under this chapter for the actions of their customers,
members, or guests who are or become intoxicated is in lieu of common law or other statutory law
warranties and duties of providers of alcoholic beverages. This chapter does not impose obligations on a
provider of alcoholic beverages other than those expressly stated in this chapter. This chapter provides the
exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older.”


                                                  XI-37
granted Defendant’s petition for review to examine the safe harbor requirements in

detail. 176

         The Court held that a provider bears the burden of establishing that it satisfied the

first two elements of Section 106.14(a) (that it required its employees to attend a

commission-approved training program and that its employees actually attended the

training), but that the plaintiff bears the burden of establishing the third element and

proving that the provider has directly or indirectly encouraged the employee to over-

serve. 177 Analogizing this burden shift to that seen in cases involving the theory of

respondeat superior, the Court noted that requiring a provider to prove the third element

“would be an inefficient and uneconomical use of judicial resources” as “proving a

negative is always difficult and frequently impossible.” 178 This shift will not occur and

the safe harbor protection will be lost if the provider fails to first meet its evidentiary

burden: “If, however, a provider fails to prove that it requires its employees to attend

these training classes and that the employee in question actually attended, the actions of

that employee will be attributed to the provider even if the plaintiff does not meet its

burden.” 179

         Addressing the pool hall’s argument that the Act requires a plaintiff to prove that

the provider knowingly encouraged its employee to violate the law, the Court held that

evidence of a provider negligently encouraging its employees to do so is sufficient to pull

the provider outside of the safe harbor provision’s protection. 180 Providers are to be

judged against a reasonableness standard of what other providers of the defendant’s type

176
    Parker, 249 S.W.3d at 395.
177
    Parker, 249 S.W.3d at 397.
178
    Id.
179
    Parker, 249 S.W.3d at FN1.
180
    Id. at 398.


                                            XI-38
would have done in similar circumstances and whether the defendant engaged in behavior

that a reasonable provider would have known would constitute encouragement of its

employees to over-serve obviously intoxicated patrons. 181 The Court gave the following

non-exhaustive examples of what could constitute negligent encouragement:             “For

example, a provider might, without so intending, encourage its employees to over-serve

by himself serving obviously intoxicated persons and thus modeling inappropriate

behavior, or by failing to punish over-service, or by setting an excessively high minimum

sales quota without regard to the number of patrons.” 182

         Finally, the Court held that Section 106.14(a) does not require a provider to

formulate a formal written policy against over-service (other than requiring its employees

to attend the statutorily-mandated training), but noted that the existence of such a policy

could be relevant evidence in the provider’s favor when determining whether the provider

negligently encouraged its employees to serve obviously intoxicated persons. 183

         6.       Recommendations to Providers.      Recent Texas Supreme Court activity

in this area of the law clearly impacts the liability of providers of alcohol.         The

Proportionate Responsibility Statute is applied to the Dram Shop Act benefiting the

“providers” of alcohol because all of the surrounding circumstances and potential causes

of an incident are considered in a case where an intoxicated person caused injury to

another. The best solution for providers to guard against dram shop liability is still to

make sure that all of its employees are required to attend the TABC training classes, the

employees actually attend, and maintain an active policy in its establishment ensuring

that intoxicated persons are not served an alcoholic beverage.

181
    Id.
182
    Id.
183
    Id. at 399 and FN11.


                                          XI-39

								
To top