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.

A plaintiff is a licensee if the plaintiff 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. In Texas, a social guest is considered a licensee.

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.

A plaintiff’s status can change from one to the other of these categories depending on the circumstances. For example, the status of a plaintiff may change from invitee to licensee or even a trespasser if the plaintiff makes an unforeseen departure into a portion of the premises where he was not invited.

The six required elements of a premises liability cause of action in claims brought by invitees are:

1. The plaintiff meets the definition of invitee;
2. The defendant was an owner or possessor of the premises;
3. A condition on the premises posed an unreasonable risk of harm;
4. The defendant knew or reasonably should have known of the danger;
5. The defendant breached its duty of ordinary care to protect the plaintiff from danger by failing to adequately warn Plaintiff of the condition or failing to make the condition reasonably safe; and 6. The defendant’s breach proximately caused Plaintiff’s injury.

These elements are virtually the same for licensees except liability with respect to a licensee depends on whether the defendant had actual knowledge of the danger and the plaintiff did not have actual knowledge of the danger. Liability to a trespasser depends on whether there was a condition on the premises that posed an unreasonable risk of harm and the defendant breached its duty of care by acting willfully, wantonly, or with gross negligence.

In a slip and fall case it is important to make a distinction as to whether the plaintiff’s injury was caused by a defect on the premises or was caused by a negligent activity on the premises. Negligent activity encompasses malfeasance based on affirmative contemporaneous conduct by the defendant. Premises liability encompasses nonfeasance based on the defendant’s failure to make the premises safe. This distinction was discussed in Ketch v. Kroger Co., 845 S.W.2d. 262 (Tex. 1992). In Ketch the plaintiff slipped on a substance that may have been applied to nearby plants about 30 minutes before the accident. The court stated that to recover for a negligent activity, the plaintiff would have to prove that he was injured by the activity on the premises and not by a condition on the premises created by that activity and because there was no “ongoing activity” at the time the plaintiff was injured the claim was for premises liability only. The court reasoned that even though the plaintiff was injured by a condition created by the spraying, the plaintiff was not injured by the spraying itself. Thus, in order to recover for a negligent activity the plaintiff must be injured by an ongoing activity of the defendant on the premises.

The standard of care in a negligent activity case is the same for ordinary negligence and the plaintiff’s status as an invitee, licensee or trespasser is irrelevant. When it is unclear whether the plaintiff’s injury was caused by a negligent activity or a premises defect, the plaintiff should plead and prove both theories. If the plaintiff submits only a negligent activity theory and an appellate court decides the case should have been tried as a premises case, the court can reverse and render against the plaintiff.

At the Law Office of Stephen O’Rear we help people who are injured by premises defects.