Articles Posted in Premises Liability

Smoke stacks.jpgA private nuisance is a nontrespassory invasion of another person’s interest in the use and enjoyment of their land. A nuisance typically involves the invasion of the plaintiff’s property by light, sound, odor or a foreign substance. The plaintiff’s interest can be invaded by any type of conduct that can form the basis of tort liability, such as negligence or intentional conduct.

To prove a cause of action for private nuisance, the plaintiff must establish that it has property rights and privileges with respect to the use and enjoyment of the land affected. To establish such property rights the plaintiff can show that it owns or occupies the land or has an easement in connection with the land.

A defendant can be liable for a private nuisance, if the plaintiff establishes that the defendant interfered with or invaded the plaintiff’s interest through negligent conduct, intentional conduct or other conduct that is abnormal and out of place to its surroundings. To prove negligent invasion, the plaintiff must establish that the defendant knew or should have known that its conduct involved an unreasonable risk of interfering with or causing an invasion of the plaintiff’s interest in the land. A defendant can be found liable for intentional invasion if the defendant acts for the purpose of causing the invasion and knew or should have known that the invasion will result or is substantially certain to result from its conduct. An example of conduct that is out of place for its surroundings is a commercial enterprise that causes or permits to escape noxious things such as smoke, soot, or odor that substantially impairs the comfort and enjoyment of those occupying neighboring property.

Child Trespassing.jpgThe Attractive Nuisance Doctrine is an exception to premises liability claims brought by trespassers. It is typically applied to young children who trespass onto property as the result of some attraction on the premises. Under the Attractive Nuisance Doctrine, the premises owner owes the trespassing child the same legal duties it would owe to a business invitee. To establish a claim under the Attractive Nuisance Doctrine, the Plaintiff must prove the following:

(1)The child Plaintiff meets the definition of trespasser;

(2) The Defendant was an owner or possessor of the premises;

Slip and Fall.jpgTexas property owners can be held liable for injuries to persons who enter upon their property. This is known as premises liability. The most common premises liability claims involve slip and falls, dog attacks, electrocution, chemical exposure, or injury caused by disrepair of the property. Basically, a premises liability claim is a specific type of negligence action brought as the result of alleged injuries caused by a condition of real property. In order to be liable for a premises defect claim, the responsible party must qualify as a possessor of the premises who was in control of the premises where the injury occurred. The responsible party 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 property in a safe condition.

Unlike some other states, Texas still maintains a legal distinction between 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.

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.

Swimmers.jpgIf you like to hunt, fish, swim or camp you might be surprised to know that Texas has passed a statue that protects private land owners who give permission to others to enter their property for such purposes. The statute is commonly known as the Texas Recreational Use Statute and can be found in Chapter 75 of the Texas Civil Practices and Remedies Code (RUS). Since its original enactment the scope of the RUS has been broadened to cover most activities associated with the enjoying of nature and the outdoors on private land.

The intent behind the RUS is to encourage landowners to allow the public to enjoy outdoor activities on their property. This intent is achieved by defining the applicable standard of care owed to recreational users of property as the duty not to injure them through gross negligence, malicious intent or bad faith. The RUS also places a limitation on the amount of damages that may be recovered from the landowner.

The elements of a cause of action under the RUS are the following:

graceshed02.jpgTexas property owners can be held liable for injuries to persons who enter upon their property, including independent contractors who are hired by the property owner to make repairs or alterations to their property. This is known as premises liability. The most common premises liability claims involve slip and falls, dog attacks, electrocution, chemical exposure, or injury caused by disrepair of the property. A premises liability claim is a specific type of negligence action brought as the result of an injury caused by a defective condition of real property. In order to be liable for a premises defect claim, the responsible party must qualify as a possessor of the premises who was in control of the premises where the injury occurred. The responsible party 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 property in a safe condition.

Unlike some other states, Texas still maintains a legal distinction between the injured person’s status as being an invitee, licensee, or trespasser. It is the determination of this status that controls the scope of the property owner’s duty to the injured person in a premises liability case. The injured person’s status is that of invitee if he enters onto the real property with the owner’s express or implied knowledge and for the parties’ mutual benefit. The injured person is a licensee if he enters onto the real property with the owner’s express or implied permission, but only for his own convenience or for the business of someone other than the owner. In Texas, a social guest is considered a licensee. The injured person is considered a trespasser if he enters the real property solely for his own purposes or out of curiosity, without a lawful right or the consent of the owner.

The property owner can be held liable to an injured person who is an invitee if:

  • The condition on the premises posed an unreasonable risk of harm;
  • The owner knew or reasonably should have known of the danger; and
  • The owner failed to protect the injured person from the danger by both failing adequately warn of the condition and failing to make the condition reasonably safe.

The property owner can be held liable to an injured person who is a licensee if:

  • A condition on the premises posed an unreasonable risk of harm;
  • The property owner had actual knowledge of the danger;
  • The injured person did not have actual knowledge of the danger; and
  • The property owner failed to protect the injured person from the danger by both failing to adequately warn of the condition and failing to make the condition reasonably safe.

The property owner can be held liable to an injured person who is considered a trespasser if:

  • A condition on the premises posed an unreasonable risk of harm; and
  • The property owner breached its duty of care to the injured person by acting willfully, wantonly, or with gross negligence.

The property owner is generally not liable for injuries to an 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. However, there are certain circumstances where the property owner can be held liable for injuries to a independent contractor and such liability is controlled by Chapter 95 of the Texas Civil Practices and Remedies Code.
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