law-premises-liability | premises liability cases | Tort Claims Act cases | special defect | duty to warn | forseeability | actual
knowledge
PREMISES LIABILITY
In a premises-liability case, a landowner is liable to employees of an independent contractor only for claims arising from a
concealed, pre-existing defect rather than from the contractor's work. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex. 2008).
“With respect to existing defects, an owner or occupier has a duty to inspect the premises and warn of concealed hazards the
owner knows or should have known about.” Id. (quoting Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004)).
The Texas Legislature has waived sovereign immunity for personal injury claims arising from a premise defect. Tex. Civ. Prac.
& Rem. Code § 101.021. Former section 101.022 of the Texas Civil Practices and Remedies Code[2] applied different duties of
care to a suit depending on whether the condition was a premise defect or a special defect:
(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes
to a licensee on private property, unless the claimant pays for the use of the premises.
(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions
on highways, roads, or streets or to the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning
devices as is required by Section 101.060.
Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3242, 3303 (amended 2005) (current version at Tex. Civ.
Prac. & Rem. Code § 101.022) (hereinafter § 101.022). If a claim involves a premise defect under section (a), a licensee
standard applies. Tex. Civ Prac. & Rem. Code § 101.022(a); see also State Dep’t of Highways & Public Transp. v. Payne, 838 S.
W.2d 235, 237 (Tex. 1992). Under a licensee standard, a plaintiff must prove the governmental unit had actual knowledge of a
condition that created an unreasonable risk of harm, and also that the licensee did not have actual knowledge of that same
condition. Payne, 838 S.W.2d at 237. But if a claim involves a special defect under section (b), a more lenient invitee standard
applies. Tex. Civ. Prac. & Rem. Code § 101.022(b). Under an invitee standard, the plaintiff need only prove that the
governmental unit should have known of a condition that created an unreasonable risk of harm. Payne, 838 S.W.2d at 237; see
also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam) (“Absent a finding that the
State knew of the dangerous condition prior to the accident, it is not liable to plaintiffs unless the condition was a special
defect.”). Whether a condition is a premise defect or special defect is a question of law, which we review de novo. Payne, 838 S.
W.2d at 238.
The Civil Practices and Remedies Code does not define “special defect,” but does give guidance by likening special defects to
“excavations or obstructions.” See Tex. Civ. Prac. & Rem. Code § 101.022(b).
DECISIONS FROM THE TEXAS SUPREME COURT
IN PREMISES LIABILITY CASES
Denton County v. Beynon, No. 08-0016 (Tex. May 1, 2009)(Willett)
(Texas Tort Claims Act TTCA governmental immunity waiver, special defect hazardous road conditions)
(mispositioned flood gate pole that impaled car and caused severe injury in accident does not qualify as
special defect to permit suit against county under the TTCA)
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.
(would hold that flood gate pole on side of road that pointed toward oncoming traffic and impaled swerving
driver's car and injured passenger was special defect under TTCA)
In this premise-liability case, we decide whether a seventeen-foot floodgate arm located approximately
three feet off a two-lane rural roadway is a “special defect” under the Texas Tort Claims Act (TTCA). We hold
the floodgate arm does not meet the TTCA’s narrow definition of a special defect. Accordingly, we reverse
the court of appeals’ judgment and dismiss the case.
The TTCA does not define “special defect” but likens it to “excavations or obstructions” that exist “on” the
roadway surface.[5] The existence of a special defect is a question of law that we review de novo.[6] Where a
special defect exists, the State owes the same duty to warn as a private landowner owes to an invitee,[7] one
that requires the State “to use ordinary care to protect an invitee from a dangerous condition of which the
owner is or reasonably should be aware.”[8]
The floodgate arm that injured Rhiannon Beynon is not of the same kind or class as an excavation or
obstruction, nor did it pose a threat to “ordinary users” in the manner that an excavation or obstruction
blocking the road does. It thus falls outside the TTCA’s narrow special-defect class as a matter of law.
Fort Brown Villas II Cond Ass'n. v. Gillenwater, No. 07-1028 (Tex. Apr. 17, 2009)(premises liability suit,
exclusion of evidence not produced in discovery, witness exclusion, undesignated witness, mandatory
exclusion at trial vs. in relation to summary judgment)
As an invitee, Gillenwater must prove, under his premises liability claim, that (1) a condition of the premises
created an unreasonable risk of harm to the invitee; (2) the owner knew or reasonably should have
known of the condition; (3) the owner failed to exercise ordinary care to protect the invitee from danger;
and (4) the owner’s failure was a proximate cause of injury to the invitee. State Dep’t of Highways &
Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). Fort Brown argues there is no evidence that Fort
Brown had actual or constructive knowledge of the chair’s condition. We agree. * * *
Here, no evidence was presented that Fort Brown actually knew the chair had become dangerous or that Fort
Brown failed to reasonably inspect the chairs. The record demonstrates that Fort Brown inspected and
washed the chairs six days a week out of concern for the corrosive effect of the pool chlorine and salt water in
the air. Gillenwater also offered no evidence that the broken welds existed on the chair for any length of time
prior to the accident.
The fact that Gillenwater’s fingertip was severed and that the chair broke is evidence that a dangerous
condition existed, but it offers no evidence as to how long it existed. The only possible evidence that a
broken weld existed in the chair for any length of time is Collins’ testimony that he repaired other chairs with
hairline cracks after the accident. But not only does a hairline crack not present the same degree of danger
as a broken weld, this argument addresses knowledge of other chairs, not the one that actually broke.
Therefore, we reverse the court of appeals’ judgment and render a take-nothing judgment in favor of Fort
Brown.
TXI Operations, LP v. Perry, No. 05-0030 (Tex. Feb. 27, 2009)(Green)(premises liability, duty of warn of
danger, private road defect, pot holes, sufficiency of speed limit warning sign) Dissent by Hecht
TxDoT v. York, No. 07-0743 (Tex. Dec. 5, 2008)(per curiam)
(TTCA, dangerous road conditions, special defect) (TTCA, Texas Tort Claims Act suit, exception to sovereign
immunity, dangerous road conditions, loose gravel, special defect, premises defect)
Trammell Crow Central Texas, Ltd v. Gutierrez, No. 07-0091 (Tex. Aug. 29, 2008)(Willett)
(premises liability, owner liability for crime on property, forseeability, no duty)
Chief Justice Jefferson delivered a concurring opinion, in which Justice Hecht, Justice Brister, and Justice
Johnson joined.
G.E. v. Moritz, No. 04-0871 (Tex. June 13, 2008)(Brister) (premises liability, independent contractor, no
duty)
Justice Scott Brister delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice
Medina, and Justice Willett joined.
Justice Green delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Johnson joined.
(Justice O'Neill not sitting)
City of Dallas v. Reed, No. 07-0469 (Tex. May 16, 2008)(per curiam) (TTCA, premises liability, unsafe road
condition, plea to the jurisdiction)
UT-PAN AM v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (Texas Tort Claims Act,
TTCA, premises liability, dangerous condition, ostrich defense) .
City of Corsicana v. Stewart, No. 07-0058 (Tex. Mar. 28, 2008)(per curiam) (TTCA, premises liability,
dangerous condition, drowning)
PETITIONS FOR REVIEW DENIED IN THE FOLLOWING COURT OF APPEALS
CASES
09-0664
XIAO YU ZHONG AND YING CHUN MA, INDIVIDUALLY AND AS NEXT FRIEND OF HONG YA ZHONG AND
DAONAN HE, MINOR CHILDREN v. SUNBLOSSOM GARDENS, L.L.C. D/B/A SUNBLOSSOM GARDENS; from
Harris County; 1st district (01-08-00470-CV, ___ SW3d ___, 04-30-09, pet. denied Sep. 2009)(premises
liability, crime on apartment premises)
When the claimant's injury is not sufficiently foreseeable to establish a duty in the premises owner, the owner
necessarily lacks the requisite knowledge of the likelihood that the claimant would be injured. Sunblossom
moved for no-evidence summary judgment in part on that basis, and appellants did not meet their burden to
present competent evidence of any issue of material fact to establish knowledge. Because appellants did not
meet their summary-judgment on the knowledge element, we need not address whether their proof raised a
fact issue on the remaining elements of their claim. See Joe, 145 S.W.3d at 157. We hold that Sunblossom
established its right to prevail as a matter of law on appellants' claims, and the trial court properly rendered
summary judgment in Sunblossom's favor pursuant to rule 166a(i).
09‑0272
GOODSON PONTIAC GMC, L.L.C., GOODSON NORTH, L.L.C., GOODSON HONDA, INC., AUTOMOTIVE
GROUP REALTY, L.L.C., UNITED AUTO GROUP, INC. AND MOTORS INSURANCE COMPANY v.
AUTONATION USA CORPORATION N/K/A AN DEALERSHIP HOLDING CORP., AUTONATION, INC. AND
TURNER, COLLIE & BRADEN, INC.; from Harris County; 1st district (01-07-00104-CV, ___ SW3d ___,
01‑08‑09)(appeal from summary judgment orders denying negligence and premises liability claims for
damages to cars on a parking lot that flooded after heavy rain.)
09‑0308
JOSE ANTONIO HERRERA v. AMD PROPERTY MANAGEMENT, INC.; from Harris County; 1st district (01-08-
00437-CV, ___ SW3d ___, 02‑26‑09)(premises liability, crime, negligence, and gross negligence).
08-0350
STEPHANIE DUKES, ET AL. v. PHILIP JOHNSON/ALAN RITCHIE ARCHITECTS, P.C., ET AL.; from Tarrant
County; 2nd district (02-07-00095-CV, ___ SW3d ___, 03-27-08, pet. denied Jun 2008)(probate, issue of
duty, voluntary undertaking, professional code of ethics, summary judgment, premises liability)
07-0978
SHEILA MIGUEZ v. SHIRLEY BROWN, PERSONAL REPRESENTATIVE OF THE ESTATE OF GENEVIEVE
CIONEK, DECEASED; from Hardin County; 9th district (09-06-00256-CV, ___ SW3d ___, 10-04-07,
pet. denied March 2008)(premises defect judgment reversed, slippery ramp)
Miguez sued Genevieve Cionek for an injury Miguez sustained on Cionek's premises. The jury found in favor
of Miguez and awarded her damages. The trial court signed a judgment based on the jury verdict. Because
there is no evidence of an unreasonably dangerous premises condition, we reverse the trial court's
judgment and render judgment that Miguez take nothing from appellant.