PREMISES LIABILITY

Written by: DOUGLAS D. FLETCHER RICHARD A. HARWELL Fletcher, Farley, Shipman & Salinas, L.L.P. 8750 North Central Expressway 16th Floor Dallas, Texas 75231 214-987-9600 www.fletcherfarley.com Presented by: Douglas D. Fletcher & James Mitchell, Dallas Payne Mitchell Law Group

State Bar of Texas 26TH ANNUAL ADVANCED PERSONAL INJURY LAW COURSE Dallas July 14 - 16, 2010 San Antonio August 4 - 6, 2010 Houston September 1 - 3, 2010 CHAPTER 10

DOUGLAS D. FLETCHERPRACTICE EMPHASIS:

FOUNDING AND SENIOR PARTNER

Complex litigation, including personal injury; premises liability; products liability; corporate negotiations EDUCATION: St. Marks School of Texas, 1971 B.S., (International Affairs), George Washington University, 1975 J.D., Southern Methodist University, 1978 ADMITTED: State Bar of Texas COURT ADMISSIONS: U.S. District Court, Northern, Southern, Eastern and Western Districts of Texas All courts of the State of Texas U.S. Court of Appeals, Fifth Circuit PROFILE: Doug Fletcher began his career as an Assistant District Attorney for Dallas County, Texas and successfully prosecuted over 300 jury trials. Beginning his career in civil litigation in 1981, he has brought the same prosecutorial focus to the successful defense of corporations throughout the state of Texas. Over the past 20 years, Doug has successfully litigated over 145 trials to verdict in matters ranging from complex personal injury, transportation, products liability, premises liability, Dram Shop liability and many other matters involving serious exposure to the firms corporate clients. His practice has evolved from classic trial representation to more expanded conflict resolution. Doug is commonly involved in pre-litigation investigations and negotiations on behalf of our clients. His involvement has successfully avoided litigation in numerous matters and has achieved early conflict resolution. PROFESSIONAL RECOGNITION: AV Peer Review Rating, Martindale-Hubbell Law Directory Associate, American Board of Trial Advocates Pro Bono College, State Bar of Texas Life Fellow, Texas Bar Foundation AFFILIATIONS: State Bar of Texas Dallas Bar Association Dallas Association of Defense Counsel Texas Association of Defense Counsel Trucking Industry Defense Association Defense Research Institute, Trucking Law Sub-Committee Regional Editor for Trucking Magazine Transportation Lawyers Association Phone: 214.987.9600 Fax: 214.987.9866 doug.fletcher@fletcherfarley.com

DOUGLAS D. FLETCHERPRESENTATIONS: Recent Cases: Impact on the Insured, Texas Law Update 2002 Trial of a Dram Shop Case, Texas Law Update 2002 When Accidents Become Crimes, Texas Law Update 2003 Adjusting the Serious Claim Case, Texas Law Update 2004 Did Litigation Survive House Bill 4?, Texas Law Update 2004 Adjusting the False Arrest/Malicious Prosecution Case, Texas Law Update 2005 Adjusting the Serious Product Liability Claim, Texas Law Update 2006 Adjusting the Employer Liability Death Claim, Texas Law Update 2007 Interpreting Medical Records and Emergency Reports, Texas Law Update 2008

FOUNDING AND SENIOR PARTNER

RICHARD A. HARWELLPRACTICE EMPHASIS:

SENIOR ASSOCIATE

Appellate practice; motion practice; insurance defense and coverage EDUCATION: J.D., Southern Methodist University School of Law, 1998 Phi Delta Phi Honor Society B.A., The University of North Texas, 1991 ADMITTED: State Bar of Texas COURT ADMISSIONS: U.S. District Court, Northern and Eastern Districts of Texas PROFILE: Richard Harwell concentrates on appellate practice and insurance defense and coverage. He has a wide variety of litigation experience, including general insurance defense, insurance coverage, intellectual property, professional malpractice, commercial, trucking, and construction litigation. Richard has handled appeals at the state courts of appeals and the Fifth Circuit Court of Appeals. AFFILIATIONS: State Bar of Texas Dallas Bar Association Dallas Association of Young Lawyers PUBLISHED CASES: Liberty Mut. Ins. Co. v. Graham, 473 F.3d 596 (5th Cir. 2006) Phone: 214.987.9600 Fax: 214.987.9866 richard.harwell@fletcherfarley.com

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TABLE OF CONTENTSI. INTRODUCTION ................................................................................................................................................... 1 A. General Principles of Premises Liability ......................................................................................................... 1 B. Duty Depends on the Plaintiffs Status ........................................................................................................... 1 1. Invitee ...................................................................................................................................................... 1 2. Licensee ................................................................................................................................................... 2 3. Trespasser ................................................................................................................................................ 2 4. Changing Status ....................................................................................................................................... 2 C. Elements That Must be Established ................................................................................................................ 2 1. Actual Knowledge ................................................................................................................................... 3 2. Constructive Knowledge ......................................................................................................................... 3 3 Unreasonable Risk of Harm .................................................................................................................... 4 4. Reasonable Care in Reducing the Risk.................................................................................................... 5 5. Proximate Cause ...................................................................................................................................... 5 D. A Question of Control ..................................................................................................................................... 6 E. Attractive Nuisance Exception ........................................................................................................................ 7 F. Independent Contractors.................................................................................................................................. 7 CRIMINAL CONDUCT AND PREMISES LIABILITY ...................................................................................... 8 A. Standard for Establishing a Duty in Cases Involving the Criminal Acts of Third Parties .............................. 8 1. Proximity ................................................................................................................................................. 9 2. Recency ................................................................................................................................................... 9 3. Frequency ................................................................................................................................................ 9 4. Similarity ................................................................................................................................................. 9 5. Publicity ................................................................................................................................................. 10 B. Are the Timberwalk Factors Limited by Del Lago? ...................................................................................... 10 C. Inadequate Security As a Factor .................................................................................................................... 11

II.

III. CONSTRUCTION SITES AND PREMISES LIABILITY .................................................................................. 11 A. CPRC Chapter 95The Property Owners Shield ...................................................................................... 11 B. Elements of the Statute .................................................................................................................................. 11 1. Control ................................................................................................................................................... 11 2. Actual Knowledge ................................................................................................................................. 12 C. Parties and Situations to Which the Statute Applies .................................................................................... 12 IV. CONCLUSION ..................................................................................................................................................... 12

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PREMISES LIABILITYI. INTRODUCTION Whether a premises liability theory is the appropriate theory of recovery and what elements must be met depend on a number of issues: the duty of the owner of the premises; the classification of the plaintiff; whether the claim is based upon a negligent activity or premises condition; and whether the condition stems from wrongful acts which occur on the premises. The purpose of this paper is to provide a background of the law relating to premises liability claims and to educate and update with regard to general premises liability, security issues, and limitations on a property owners liability pursuant to Civil Practice and Remedies Code 95. A. General Principles of Premises Liability Premises liability is a special form of negligence. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). When the alleged injury is the result of the premises condition, the injured party can only recover under a premises defect theory. Keetch v. Kroger, 845 S.W.2d 262, 264 (Tex. 1992). In other words, a claim based on the condition of the premises, whether caused by a spill, a fixture, or some other condition, will sound in premises liability rather than traditional negligence. The elements for establishing a premises liability claim are different than those of a traditional negligence claim. Because a premises liability claim is different than a typical negligence claim, the first step is to determine whether the injury is a result of a condition of the premises or a negligent activity. If the injury is a result of the condition of the premises, then premises liability will apply. However, if the injury is a result of an activity itself, then the injury will be considered the result of a negligent activity and traditional negligence principles will apply. In Keetch v. Kroger, the Texas Supreme Court stated that [r]ecovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity. 845 S.W.2d at 264. The Court further noted that [a]t some point, almost every artificial condition can be said to have been created by an activity. Id. The key element is time. In Keetch, the plaintiff slipped and fell on a slick spot in a Kroger grocery store. Id. at 263-64. The spot had been created by Kroger personnel while spraying plants. Although the plaintiff pleaded both negligent activity and premises defect causes of action, the trial court only allowed the premises defect question to be submitted. Id. at 264. On appeal, the Supreme Court of1

Texas upheld this decision. Id. The Court noted the important distinction between defects and activities, stating that Keetch may have been injured by a condition created by the spraying but she was not injured by the activity of spraying. Id. (emphasis added). The Court noted that the activity of spraying had ceased at least half an hour before the incident. Id. Therefore, the plaintiff had not been injured by the activity of spraying, but rather by the condition of the premises created by the spraying (a wet and slippery floor) and was limited to a premises liability theory of recovery. Thus, if a person is not injured by or as a contemporaneous result of the activity itself but instead by a condition created by the activity, then it is a premises liability case. For the claim to result from a negligent activity, the plaintiff's injuries must be directly related to an ongoing activity and existing, occurring, or originating during the same time. Stanley Stores, Inc. v. Veazey, 838 S.W.2d 884, 886 (Tex. App.Beaumont 1992, writ denied); see also Wal-Mart Stores, Inc. v. Garza, 27 S.W.3d 64, 67 (Tex. App.San Antonio 2000, pet. denied) (plaintiffs injury was the result of a negligent activity when box containing a television was dropped on her head while being removed from a shelf); Sibai v. WalMart Stores, Inc., 986 S.W.2d 702, 707 (Tex. App. Dallas 1999, no pet.) (plaintiff injured while employee was moving merchandise from one cart to another had a cause of action for negligent activity). The key is determining whether the plaintiffs injury occurred at the same time as the activity or conduct which created the condition. If it did, then it is a negligent activity case. If the injury did not occur at the same time as the activity, then it should be a premises liability claim. In such a case, the elements of premises liability will apply. Duty Depends on the Plaintiffs Status As with any theory of negligence, duty is a threshold inquiry. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Urena, 162 S.W.3d at 550. The duty owed depends on the plaintiffs status as an invitee, a licensee, or a trespasser. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). The plaintiffs status depends on his or her purpose in coming onto the property. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). There are three classes of plaintiffs in a premises liability case: invitees, licensees, and trespassers. The duty owed varies with each class. 1. Invitee An invitee is someone who enters the premises with the owners knowledge and for the mutual benefit of both. Rosas v. Buddies Food Store, 518 B.

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S.W.2d 534, 536 (Tex. 1975). The owner or occupier owes an invitee the duty to keep the property safe and must use reasonable care to protect the invitee from reasonably foreseeable injuries. Id. at 537. An invitee is under a duty to exercise reasonable care for his own self-protection against dangers of which he knows or ought to know. M.D. Anderson Hosp. & Tumor Inst. v. Felter, 837 S.W.2d 245, 248-49 (Tex. App.Houston [1st Dist.] 1992, no writ). Most premises liability cases will involve invitees. Examples of invitees are store patrons, patients in a doctors office, deliverymen, club members, apartment tenants, and hotel guests. The duty owed to an invitee is discussed in detail below. Licensee A licensee is a person who goes on the premises of another merely by permission, express or implied, and not by any express or implied invitation. Smith v. Andrews, 832 S.W.2d 395, 397 (Tex. App.Fort Worth 1992, writ denied). A licensees presence on the premises is for his or her own convenience or on business for someone other than the owner. Id. Examples of licensees include social guests, uninvited salesmen, volunteer rescuers, or persons soliciting for charity. However, a social guest of a tenant is considered an invitee. This is because a landlords duty to its tenant is that owed to an invitee and the duty is extended to the guest of the tenant. See Dickinson Arms-REO, LP v. Campbell, 4 S.W.3d 333, 336 (Tex. App.Houston [1st Dist.] 1999, pet. denied). A lower standard of care is owed to a licensee than that owed to an invitee. The duty a property owner owes a licensee is the duty not to injure the licensee through willful, wanton, or grossly negligent conduct. State Dept of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). Additionally, where a licensor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). In other words, if the condition is known to the licensee, then there is no duty. A landowner or occupier is liable to a licensee only if the owner or occupier has actual knowledge of the condition that injured the plaintiff. City of El Paso v. Zarate, 917 S.W.2d 326, 331 (Tex. App.El Paso 1996, no writ). Trespasser A trespasser is someone who enters the property without lawful right or the consent of the possessor, merely for the trespassers own purposes. Weaver v. KFC Mgmt., Inc., 750 S.W.2d 24, 27 (Tex. App. Dallas 1988, writ denied). A landowner or premises occupier only owes a trespasser the duty not to injure2

him willfully, wantonly, or through gross negligence. Weaver v. KFC Management, Inc., 750 S.W.2d 24, 26 (Tex. App.Dallas 1988, writ denied). 4. Changing Status The status of the plaintiff may change while the plaintiff is on the premises. The status of the plaintiff when he or she is injured controls, not the status when first entering the property. Wong v. Tenet Hosp. Ltd., 181 S.W.3d 532, 537 (Tex. App.El Paso 2005, no pet.). A person can enter the property as an invitee or licensee and become a trespasser as to another part of the property. Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 161 (Tex. App.Waco 1995, no writ). The status of an invitee or licensee, who has permission to be on part of the premises, decreases to that of a trespasser when he or she makes an unforeseen departure to another part of the premises uninvited. Id. However, an invitee or licensee does not become a trespasser if the owner can reasonably foresee that the invitee or licensee will use part of the premises without permission or for a purpose other than the one permitted. Id. (citing Fisher Constr. Co. v. Riggs, 320 S.W.2d 200, 205-06 (Tex. Civ. App. Houston 1959) (general contractor should reasonably anticipate that employees of its subcontractors might take a shortcut through store space), revd on other grounds, 160 Tex. 23, 325 S.W.2d 126 (1959)). C. Elements That Must be Established The basic elements a plaintiff must prove to maintain a premises liability claim are different than those in a traditional negligence case. The elements an invitee must prove 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 (4) that the owner/operators failure to use such care proximately caused the plaintiffs injuries. Keetch v. Kroger, 845 S.W.2d at 264; Natl Convenience Stores, Inc. v. Erevia, 73 S.W.3d 518, 521 (Tex. App.Houston [1st Dist.] 2002, pet. denied). The differences between elements a licensee must establish and those an invitee must establish are: (1) an invitee need only show that the landowner reasonably should have known of the defect, while a licensee must show the landowners actual knowledge, and (2) an invitees knowledge of the defect is immaterial, while a landowner owes no duty to a licensee who also knows of the defect. Texas Southern Univ. v. Gilford, 277 S.W.3d 65, 70 (Tex. App. Houston [1st Dist.] 2009, no pet.). Because a trespasser is owed nothing more than the duty not to injure him willfully, wantonly, or through gross negligence, the

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elements a trespasser must prove are the same as those required to establish gross negligence. See Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 163 (Tex. App.Waco 1995, no writ). The existence of actual or constructive notice of a premises defect is the threshold requirement for a premises liability claim. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). A plaintiff in a slip and fall case satisfies the actual or constructive notice requirement by establishing that: (1) the defendant placed the substance on the floor; (2) the defendant actually knew that the substance was on the floor; or (3) it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). 1. Actual Knowledge As a general rule, actual knowledge is the most difficult element to establish. A plaintiff may establish actual knowledge through circumstantial evidence. One method is through prior incidents. Although there is no one test for determining actual knowledge that a condition presents an unreasonable risk of harm, courts generally consider whether the premises owner has received reports of prior injuries or reports of the potential danger presented by the condition. Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008) (per curiam). When there is no prior report of a similar incident, courts will find there was no actual knowledge on the part of the defendant that the condition was unreasonably dangerous unless there is some other proof the defendant was actually aware the condition was dangerous or that the defendant created the dangerous condition. See Id. at 514 (in light of testimony that no one had tripped on hose in preceding five years, no evidence established defendant had actual knowledge that hoses placed across sidewalk created unreasonable risk of harm); see also Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007) (per curiam) (concluding ramp at car dealership was not unreasonably dangerous condition where it met applicable safety standards, was outlined in yellow striping, and no one other than plaintiff was injured falling off the ramp or had complained about its safety); Rice Food Market, Inc. v. Hicks, 111 S.W.3d 610, 613 (Tex. App.Houston [1st Dist.] 2003, pet. denied) (noting the alleged dangerous sign had never fallen before and there had been no similar incidents). The fact that the defendant created the condition merely creates an inference of knowledge. Keetch, 845 S.W.2d at 265. Even with an inference of actual knowledge established by the fact that a defendant created the condition, the jury must still find that the defendant knew or should have known of the3

dangerous condition. Id.; see also Rice Food Market, 11 S.W.3d at 613 (no evidence the sign posed an unreasonably dangerous condition from the moment it was installed). Further, even if the owner knew of a safer alternative, that is not evidence of actual knowledge that the condition was dangerous. Id. If a licensee cannot establish actual knowledge, then the licensees claim will fail. An invitee, however, may also establish liability by constructive knowledge. 2. Constructive Knowledge A plaintiff invitee may establish the constructive knowledge element by showing that the condition existed long enough that the defendant should have known of the alleged dangerous condition. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). This time-notice rule is based on the theory that temporal evidence best indicates whether the owner had a reasonable opportunity to discover and remedy a dangerous condition. Reece, 81 S.W.3d at 816. There must be some proof of how long the hazard was there before liability can be imposed on the premises owner for failing to discover and rectify, or warn of, the dangerous condition. Id. Further, an employees proximity to the spill does not impute knowledge to the owner. Id. Typically, thirty minutes or less has been held to be legally insufficient evidence to show constructive knowledge. Brookshire Food Stores, L.L.C. v. Allen, 93 S.W.3d 897, 901 (Tex. App.Texarkana, 2002, pet. denied). In Brookshire, the Texarkana Court of Appeals determined that there was legally insufficient evidence to show that a grocery store had constructive knowledge of a dangerous condition regarding grapes on the floor. Id. The evidence indicated that the grapes were not on the floor longer than 15 minutes, and no one saw grapes on the floor before the customer fell. Id.; see also Wal-Mart Stores, Inc. v. Lopez, 2000 Tex. App. LEXIS 207 (Tex. App.San Antonio, no pet.) (the fact that the substance was on the floor for twenty minutes was legally insufficient to show constructive knowledge); Kimbell, Inc. v. Roberson, 570 S.W.2d 587, 590 (Tex. Civ. App.Tyler 1978, no writ) (WalMarts manager testified that the aisle was inspected for potential hazards no more than thirty minutes before plaintiff fell; therefore, the plaintiff could not prove constructive knowledge). In the Reece case, the plaintiff had purchased a chili dog at the stores snack bar. She then slipped in a large puddle of clear liquid to the side of the snack bar. An employee of the defendants was present at the time, having just purchased a drink from the snack bar. However, the employee had not noticed the puddle until the plaintiff slipped. Reece, 81 S.W.3d at 813-14. The store manager had even acknowledged that the

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drink and ice machines increased the risk of spills in the area. Id. at 814. The Supreme Court ruled that this was not enough to establish constructive knowledge. It was the plaintiffs duty to establish that it was more likely than not that the store was aware of the spill because it existed long enough to give the store a reasonable opportunity to discover and rectify it, or to warn about it. The plaintiff failed to meet that burden and a take nothing judgment was proper. Id. at 817. Even if it appears the substance had been on the floor for a lengthy time, the plaintiff cannot establish constructive knowledge absent actual proof of the length of time. In the Gonzalez case, the plaintiff had slipped on macaroni salad that had spilled on the floor. The macaroni had shopping cart tracks through it, had foot prints in it, and was dirty. It seemed like it had been there awhile. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). The Supreme Court ruled this testimony was merely speculative, subjective opinion of no evidentiary value. Id. at 937-38. The plaintiff and witnesses had no personal knowledge of the length of time the macaroni had been on the floor. Id. at 938. Because the plaintiff could not demonstrate that it was more likely than not that the macaroni salad had been there for a long time, only that it could possibly have been there long enough to make the store responsible for noticing it, a take nothing judgment was proper. Id. The Supreme Court in Gonzalez acknowledged that the time notice rule is harsh and demanding on plaintiffs. Id. The rule is nevertheless well established and plaintiffs must always discharge the burden of proving that the dangerous condition was either known to the defendant or had existed for such a length of time that he should have known it. Id. The purpose of the rule was intended to prevent a store owner from being liable for the carelessness of another over whom it had no control or for the fortuitous act of a single customer that could instantly create a dangerous condition. Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 409 (Tex. 2007) (upholding summary judgment for the defendant where the plaintiff failed to prove how long ice had been on the floor near a drink dispenser); see also Rice Food Market, 111 S.W.3d at 613 (owners are not the insurers of the invitees, nor are they strictly liable). 3 Unreasonable Risk of Harm The plaintiff must also prove the condition complained of posed an unreasonable risk of harm. A condition presenting an unreasonable risk of harm is defined as one in which there is a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen. Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970). Therefore,4

whether a condition constitutes an unreasonable risk of harm is, by definition, a function of reasonableness: That is, if the ordinarily prudent man could foresee that harm was a likely result of a condition, then it is a danger. Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex. 1975). It follows that an owner or occupier of land can be charged with knowledge and appreciation of a dangerous condition on his premises only if from a reasonable inspection a reasonably prudent person should have foreseen a probability that the condition would result in injury to another. Seideneck, 451 S.W.2d at 754. As might be expected with a matter involving the reasonable man concept, there seems to be no definitive, objective test which may be applied to determine whether a condition presents an unreasonable risk of harm. Id. Thus, the question of whether a condition poses an unreasonable risk of harm is usually an inherently fact-intensive question determined from the standpoint of a reasonably prudent person. See, e.g., Hall v. Sonic Drive-In of Angelton, Inc., 177 S.W.3d 636, 645 (Tex. App.Houston [1st Dist.] 2005, pet. denied) (The determination of whether a particular condition poses an unreasonable risk of harm is generally fact specific); Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 342 (Tex. App.Austin 2000, pet. denied) (It is important to note that reasonableness determinations such as the one here are fact-intensive inquiries and, as such, are issues well-suited for a jurys determination.). Due to the fact-intensive nature of this element, summary judgments are uncommon (conversely, summary judgments are very common when the issue is actual or constructive knowledge). Under some circumstances, however, a court can determine as a matter of law that a particular condition does not pose an unreasonable risk of harm. This is particularly true if the condition was caused naturally. For example, the Supreme Court has held that an icy bridge during cold, wet weather does not pose an unreasonable risk of harm because it is not unexpected or unusual; rather, it is entirely predictable. See State Dept. of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993). Similarly, the Supreme Court held 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, not a condition posing an unreasonable risk of harm. M.O. Dental Lab. v. Rape, 139 S.W.3d 671, 675 (Tex. 2004). More recently, following its M.O. Dental Lab. opinion, the Supreme Court ruled that a landowner has no duty to correct naturally accumulating ice. In Scott & White Meml Hosp. v. Fair, 2010 Tex. LEXIS 353, 53 Tex. Sup. J. 703 (Tex. May 7, 2010), the plaintiff

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had slipped on ice on the road that separated the hospital from the parking lot. The Supreme Court ruled that naturally accumulated ice does not pose an unreasonable risk of harm. There can only be a duty to exercise reasonable care to protect against danger from a condition on the land that creates an unreasonable risk of harm of which the owner or occupier knew or by the exercise of reasonable care would discover. Id. at *3. The Court noted that invitees are at least as aware as landowners of the existence of ice that has accumulated naturally outdoors and will often be in a better position to take immediate precautions against injury. Id. at *8. In fact, the relative irregularity of icy conditions in this state may weigh against imposing liability. requiring premises owners to guard against wintery conditions would inflict a heavy burden because of the limited resources landowners likely have on hand to combat occasional ice accumulations. Id. at *10. The plaintiff argued that the hospitals use of a deicer actually made the ice more slippery and that an exception should apply. However, the Court stated that this exception only applies if the ice or snow conceals a defect that an invitee should not anticipate from his general knowledge of wintery conditions. Id. at *17. For example, the exception would arise when the accumulated snow or ice covers a normally open and obvious danger, such as a deep hole in a parking lot or an eight-inch raised concrete bumper. Id. at *18. [S]alting, shoveling, or applying deicer to a natural ice accumulation does not transform it into an unnatural one. To find otherwise would punish business owners who, as a courtesy to invitees, attempt to make their premises safe. Id. at *23. Thus, as a matter of law, a natural accumulation of ice or mud does not present an unreasonable risk of harm. Id. at *24. The Supreme Court has consistently reached this conclusion because a landowner's duty toward an invitee does not make the landowner an insurer of the invitee's safety. M.O. Dental Lab., 139 S.W.3d at 676. Some conditions posing a risk of harm do not rise to the level of an unreasonable risk of harm. A condition is not unreasonably dangerous simply because it is not foolproof. Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007) (per curiam). To hold a landowner accountable for a naturally accumulating condition would amount to strict liability for injuries resulting from an ordinary condition in its natural state. M.O. Dental Lab., 139 S.W.3d at 676. 4. Reasonable Care in Reducing the Risk If the condition is known and represents an unreasonable risk of harm, then the owner or possessor must take reasonable care to reduce or eliminate the risk. The owner or possessor must use reasonable care5

to maintain the property in a safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the potential injury, and the burden of avoiding the risk. Corbin v. Safeway Stores, Inc. 648 S.W.2d 292 (Tex. 1983). Reasonable or ordinary care has been defined to mean that the possessor failed to adequately warn the invitee of the condition or failed to make the condition reasonably safe. Ordinary care, means that degree of care which would be used by an occupier of ordinary prudence under the same or similar circumstances. Keetch v. Kroger, 845 S.W.2d 262, 267 (Tex. 1992). This is a subjective standard which will be analyzed according to the facts of each individual case. For example, in Bills Dollar Store, Inc. v. Bean, the plaintiff was at the check-out counter of a store when a child spilled cola between the store exit and the check-out counter where the plaintiff was standing. 77 S.W.3d 367, 368 (Tex. App.Houston [14th Dist.] 2002, pet. denied). The stores manager immediately began cleaning the spill with a mop and also advised the plaintiff to be careful on her way out the door. Id. at 369. Although the plaintiff acknowledged the warning, she walked over the wet area and fell, subsequently suing the store for negligence. Id. The appellate court determined that the store owner did not breach a duty to the plaintiff because the store manager immediately began to clean the spill and even warned the plaintiff to watch her step as she left the store. The warning was adequate as a matter of law. Id. at 370. However, in Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21 (Tex. App.Tyler 2003, pet. denied), a stack of mirrors fell on a customer and his child while they were shopping in a store. The jury returned a verdict for the plaintiffs and the appellate court affirmed. The court noted the store had bins for the mirrors but did not use them. Id. at 31. In addition, there were no notices that customers should obtain the assistance of an employee while looking at the mirrors. Because the mirror display was unreasonably dangerous and the store made no effort to reduce or eliminate the risk, the court concluded the store failed to exercise reasonable care. Id. at 32. Proximate Cause The standard for proximate cause is the same as with negligence. There are two factors: (1) cause-infact; and (2) foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). The test for cause-in-fact is whether the negligent act or omission was a substantial factor in bringing about the injury and without which the injury would not have occurred. Id. Cause-in-fact must be proved by evidence of probative force and not by mere conjecture, guess, or speculation. See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996). The 5.

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evidence must be sufficient for the jury to determine within a reasonable probability that the plaintiffs injury would not have occurred without the defendants negligence. See Lenger v. Physicians Gen., Inc., 455 S.W.2d 703, 706 (Tex. 1970). Cause-in-fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, harm would not have occurred. Western Invs. V. Urena, 162 S.W.3d 547, 551 (Tex. 2005). If the defendant's actions merely furnished a condition that made the injuries possible, there can be no cause-infact. Id. To prove foreseeability, the plaintiff must establish that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549-50 (Tex. 1985). Foreseeability does not require a person to foresee the particular accident or injury that, in fact, occurs. See Travis, 830 S.W.2d at 98. Forseeability requires only that: (1) the injury be of such a general character as might reasonably have been anticipated; and (2) the injured party be so similarly situated in relation to the wrongful act that the injury to him or to someone similarly situated might reasonably have been foreseen. See Nixon, 690 S.W.2d at 551. The question of foreseeability involves a practical inquiry based on common experience applied to human conduct. City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987). It asks whether the injury might reasonably have been anticipated as a result of the defendants conduct. Id. The mere fact that an accident occurred is no proof of causation. See Smith v. Central Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.Houston [14th Dist.] 1989, writ denied). In Plainview Motels, Inc., the court determined that it was reasonable to anticipate that a customer may move the mirrors around to get to one that was deep within the stack of mirrors. Plainview Motels, Inc., 127 S.W.3d at 33. It was also reasonable to anticipate that the display could collapse. The displays potential for collapse was apparent from the lack of safety features, the lack of warnings, and the method in which the mirrors were displayed. Id. Therefore, the jury could reasonably determine that the stores breach proximately caused the plaintiffs injuries. Id. D. A Question of Control A plaintiff must prove that the defendant had control over and responsibility for the premises before a duty can be imposed on the defendant. Dukes v. Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586, 592 (Tex. App.Fort Worth 2008, pet. denied). The control that the defendant had over the premises must relate to the condition or activity that caused the injury. Id.; see also Lloyd v. ECO6

Resources, 956 S.W.2d 110, 130 (Tex. App.Houston [14th Dist.] 1997, no pet.) (the right of control is often the deciding factor in determining whether a duty exists); Barefield v. City of Houston, 846 S.W.2d 399, 403 (Tex. App.Houston [14th Dist.] 1992, writ denied) (a defendants duty does not extend beyond the limits of the defendants control). Whether a defendant actually has control over the premises is usually not an issue. However, there are certain circumstances when control becomes an issue. If the defendant does not control the area where the defect exists, then the defendant will not be liable for any damage caused by the defective condition. The issue of control typically arises in situations involving leased premises when the plaintiff attempts to hold the lessee liable in addition to or instead of the lessor/premises owner. In Howe v. Kroger Co., 598 S.W.2d 929 (Tex. App.Dallas 1980, no writ), the plaintiff had fallen when she slipped on ice and snow on the sidewalk outside a Kroger store. Kroger had a lease agreement which provided that [a]ll that portion of tract of land not covered by buildings is to be Common Area for the joint use of all tenants, customers, invitees, and employees . . . Landlord agrees . . . to maintain all Common Area in good repair . . . . Id. at 931. The court noted that the sidewalk was part of the Common Area and was not covered by buildings. Pursuant to the lease, Kroger had no control over the sidewalks outside their doors and thus no responsibility to repair or warn. Id. (If this case were considered today, Kroger would also not be liable due to the fact that the snow and ice were naturally occurring conditions and a defendant has no duty to an invitee to cure or warn of the defect because naturally accumulated ice does not pose an unreasonable risk of harm. See Scott & White Meml Hosp. v. Fair, 2010 Tex. LEXIS 353, 53 Tex. Sup. J. 703 (Tex. May 7, 2010), supra). In Johnson v. Thumb Stores, Inc., 771 S.W.2d 582 (Tex. App.Dallas 1989, writ denied), the plaintiff had fallen in front of the store area leased by Tom Thumb. She tripped over a light embedded in the sidewalk and broke her hip. Tom Thumb had actual knowledge of the dangerous condition prior to her fall. An assistant manager testified that he himself had slipped and fallen on a similar embedded light in the sidewalk. Id. at 583. Tom Thumbs lease agreement provided that the responsibility for maintaining the common areas fell upon the lessor. Id. The Dallas Court of Appeals ruled that Tom Thumb had no duty to maintain the area outside its leased premises and had no duty to warn of the dangerous condition, despite the prior actual knowledge Tom Thumb had of the condition. Id.; see also University of Houston v. Sterling Bank, 963 S.W.2d 93 (Tex. App.Houston [14th Dist.] 1998, pet. denied) (bank was not liable to

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bank employee who slipped on some water that had leaked from the ceiling in front of the bank as she returned from the restroom located within the common area of the University Center). E. Attractive Nuisance Exception As noted before, as to trespassers, a premises owner or occupier owes only the duty not to injure the trespasser willfully, wantonly, or through gross negligence. Texas Utilities Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997). However, one important exception to this rule concerns children who trespass and to whom the attractive nuisance doctrine applies. Over fifty years ago, the Texas Supreme Court adopted the attractive nuisance doctrine which holds a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if: (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass; (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children; (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it; (d) the danger is hidden, concealed, or latent and not when it is patent or obvious in order; (e) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved; and (f) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. See Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 847 (1948); RESTATEMENT (SECOND) OF TORTS 339 (1965). When the attractive nuisance doctrine applies, the owner or occupier of premises owes a trespassing child the same duty as an invitee. Timmons, 947 S.W.2d at 193. There is no specific age limit on beneficiaries of the attractive nuisance doctrine. The test is whether the child is still too young to appreciate the danger. Id. (quoting RESTATEMENT (SECOND) OF TORTS 339, cmt. c (1965) (citations omitted)); see also Entergy Gulf States, Inc. v. Isom, 143 S.W.3d 486 (Tex. App. Beaumont 2004, pet. denied). However, the attractive7

nuisance doctrine ordinarily does not apply to normal fourteen-year-olds. Timmons, 947 S.W.2d at 196. The great majority of cases applying the doctrine did so when the child involved was not more than twelve years old. Id. (citing RESTATEMENT (SECOND) OF TORTS 339, cmt. c (1965)). In Timmons, a fourteen-year-old boy, Billy, after spending the evening drinking beer at a friends house, was electrocuted by an arc of electricity while climbing an electric transmission tower. Id. at 192-93. The utility company had erected a barricade around the tower to prevent unauthorized persons from scaling the tower and coming near the power lines and had also posted a warning sign on one corner of the tower. The sign, however, did not specifically warn of the danger of arcing. Id. at 192. The Timmons Court concluded that [e]ven without such express warnings, anyone as old as Billy is charged with the knowledge that electric wires are ordinarily dangerous; that they should be avoided wherever possible . . . and that it is dangerous to come in close proximity to them. Id. at 194. The doctrine requires only that the child realize the risk in coming within the area made dangerous by the condition. Timmons, 947 S.W.2d at 195. F. Independent Contractors An owner may have a duty to employees of independent contractors that come onto the premises to perform work. However, that duty is limited. In the construction context, the duty is limited by statute (discussed in Section III below). In other situations, the duty is limited by the Supreme Courts decision in General Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008). In Moritz, the plaintiff was an employee of an independent contractor who delivered General Electric parts to customers after picking them up at a GE warehouse. He had been loading his truck at the site of the incident for more than a year. On the day of the incident, the loading doors were blocked by GE parts. The plaintiff attempted to load his truck further down the loading ramp. He fell from the loading ramp while securing his load and sued the warehouse owner, property manager, and General Electric alleging both negligent activity and failure to warn. He claimed that, as owners or occupiers of the premises, the defendants were liable for negligence regarding the activities at the loading dock. The trial court granted summary judgment to all defendants. Id. at 213-14. The Supreme Court first addressed the negligent activity theory (in this case, unlike in Keetch, the Court did not rule the plaintiff was limited to a premises liability theory only, possibly because his claims failed under either theory of recovery). Generally, an owner or occupier does not have a duty to ensure that independent contractors perform their work in a safe

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manner. Id. at 214. But one who maintains the right to control the work may be liable for negligence in exercising that right. Id. There was some evidence the defendants controlled where the plaintiff loaded his truck. However, there was no evidence the defendants controlled how or where the plaintiff secured his load. Id. It is not enough to control one aspect of the plaintiffs activities if his injury arose from another. Id. at 215. The Court noted that as an independent contractor, the plaintiff was free to choose whatever vehicle he wanted for deliveries, and when, where, and how he would secure his load. Id. Thus, none of the defendants had contractual or actual control of how the plaintiff secured his load and summary judgment was proper as to the negligent activity theory. Id. The plaintiff also alleged a premises condition theory. Generally, 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. Id. 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. (emphasis in original). The plaintiffs claimed defectthe absence of rails on the loading rampwas obviously a preexisting condition and obviously not a concealed hazard. Id. The Supreme Court further held it was the duty of the independent contractor to provide a safe place to work, not the premises owner. The Court stated that an independent contractor owes its own employees a nondelegable duty to provide them a safe place to work, safe equipment to work with, and warn them of potential hazards; it also controls the details and methods of its own work, including the labor and equipment employed. Id. at 215. Thus, one 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, and whether its workers need any warnings. Id. at 215-16. The defendants only had a duty to warn of concealed defects to the employee of an independent contractor. Because the alleged defect was not concealed, the owners and occupiers had no duty to warn the independent contractor of open and obvious defects, specifically that the loading ramp that the plaintiff had previously used had no handrails. Id. at 216. Therefore, the Supreme Court affirmed the summary judgment granted in favor of the defendants. See also Wilhelm v. Flores, 195 S.W.3d 96, 98 (Tex. 2006)(defendant as occupier of the premises where bees were kept had no duty to warn another partys8

employees of the open and obvious danger of bee stings). The Moritz case is applicable to situations in which the employee of an independent contractor comes onto the premises to perform work that does not involve construction. However, in construction scenarios (i.e., remodeling, renovating, repairing, or constructing an improvement), Civil Practice and Remedies Code 95 applies. Chapter 95 is discussed in Section III below. II. CRIMINAL CONDUCT AND PREMISES LIABILITY A. Standard for Establishing a Duty in Cases Involving the Criminal Acts of Third Parties In Texas, the law generally does not impose a duty upon landowners to protect other persons from the criminal acts of third parties. Butcher v. Scott, 906 S.W.2d 14, 15 (Tex. 1995). However, this rule is not absolute. A person who occupies or controls the premises owes a duty of care to protect a person from the criminal acts of third parties if he or she knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee. Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d 9, 12 (Tex. 2008); Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999). The Supreme Courts decision in Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998) is the seminal case on liability for the criminal acts of third parties. In Timberwalk, a tenant was sexually assaulted in her apartment and sued the landlord and management company for failing to provide adequate security, including failing to provide guards, proper lighting, and pin locks or security bars for sliding glass doors. Timberwalk, 972 S.W.2d at 751. Evidence showed that there had been no prior assaults at the complex and the assaults within the surrounding area were astonishingly low. Id. at 752. The Supreme Court stated that [f]oreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Id. at 756. When the general danger is the risk of injury from criminal activity, the evidence must reveal specific previous crimes on or near the premises in order to establish foreseeability. Id.; see also Trammell Crow, 267 S.W.3d at 12. Once foreseeability is established, the parameters of the duty must still be determined. Foreseeability is the beginning, not the end, of the analysis in determining the extent of the duty to protect against criminal acts of third parties. Timberwalk, 927 S.W.2d at 756 (citing Lefmark Management Co. v. Old, 946 S.W.2d 52, 59 (Tex. 1997)); Because crime is random and could occur anywhere, especially in a large city, the Supreme Court

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refused to require owners to protect people from criminal conduct whenever a crime might occur. Id. The Supreme Court set forth several factors the courts should consider in determining whether the criminal conduct was foreseeable. The factors to be considered are: whether any criminal conduct previously occurred on or near the property; how recently it occurred; how often it occurred; how similar the conduct was to the conduct on the property; and what publicity was given the occurrences to indicate that the owner knew or should have known about them. Id. at 757. Restated, the factors are: (1) proximity; (2) recency; (3) frequency; (4) similarity; and (5) publicity. Id. at 759. Because no violent crimes had occurred at the Timberwalk Apartments for ten years preceding the sexual assault, only one sexual assault had occurred within a one-mile radius in the prior year, and six assaults had been reported in neighboring complexes which were not reported to the media, Timberwalk had no duty to provide additional security due to lack of foreseeability. Id. The factors tend to overlap when examined. 1. Proximity Evidence of previous criminal conduct on or near the possessors property must show that the risk of criminal conduct on the landowners property has reached a level as to make crime likely. Timberwalk, 972 S.W.2d at 757. In Texas Real Estate Holdings, Inc. v. Quach, the Quachs were victims of a violent car-jacking in the parking lot of their apartment complex. Texas Real Estate Holdings, Inc. v. Quach, 95 S.W.3d 395 (Tex. App.Houston [1st] 2003, pet. denied). The Quachs sued their apartment landlords alleging the landlords provided negligent security because they failed to protect the plaintiffs from the criminals that attacked them. Id. at 395. The court ruled that for a landowner to foresee criminal conduct on its property, there must be evidence that other crimes have occurred on the property or in its immediate vicinity. Id. at 397. In that case, the parties disputed what was meant by the immediate vicinity of the apartment complex, and the court held that it is necessary to examine criminal activity in narrow geographic areas in analyzing the foreseeability of criminal conduct. Id. at 399. Further, the court stated that evidence of the police departments statistical report that covered nine square miles was not a narrow geographic area, and as such, it did not, in and of itself, make the possibility of violent crime at the apartment complex foreseeable. Id. Recency The occurrence of a significant number of crimes within a short time period strengthens the claim that the particular crime at issue was foreseeable, and the9

occurrence of a few crimes over an extended period of time negates the foreseeability element. Timberwalk, 972 S.W.2d at 758. In Mellon Mortg. Co., the Supreme Court held that a rape was foreseeable when it took place in an area that had witnessed 190 violent crimes in the space of two years, or one violent crime every four days (although the Court determined the act was not foreseeable in this instance because the plaintiff was not a foreseeable victim, as she had been taken to the premises from another location). Mellon Mortg. Co., 5 S.W.3d at 657. By contrast, in Trammell Crow, a case involving a shooting, the Supreme Court noted that there had been ten violent crimes committed over a 23-month period prior to the shooting, equating to one violent crime every sixty-nine days. Trammell Crow, 267 S.W.3d at 15. 3. Frequency Frequency and recency are often examined in tandem. Id. Frequency has the same standard as recency: the occurrence of a significant number of crimes within a short time period strengthens the claim that a particular crime was foreseeable, while the complete absence of previous crimes, or the occurrence of a few crimes over an extended time period, negates the foreseeability element. Timberwalk, 972 S.W.2d at 758. Frequent property crimes in the area are not indicative of forseeability as less frequent violent crimes that take place on the owners property itself. Id. at 759. In Jai Jalaram Lodging Group, LLC v. Leribeus, 225 S.W.3d 238 (Tex. App.El Paso 2006, pe.t denied), the incident reports showed a rise in criminal activity over the previous two years. Id. at 244-45. However, there was no notable frequency, nor were the crimes the kind that could have facilitated the violent personal crime in question. Id. at 245. Similarity To place a landowner on notice of the specific danger, the previous crimes committed must be sufficiently similar to the crime in question. Timberwalk, 972 S.W.2d at 758. The prior crimes do not have to be identical. For example, a string of assaults and robberies may make the risk of murder or other violent crimes foreseeable. Id. A thief entering a dwelling to steal property may also commit personal crimes. Id. However, vandalism to automobiles in an apartment complex parking lot does not suggest the likelihood of sexual assault. Id. In Trammell Crow, a case involving a shooting, one incident was very similar, although the ultimate goal was different. Three of the remaining nine violent crimes had involved guns. However, none of the weapons were ever fired. Furthermore, in nine incidents, no one was seriously injured. In six of the 4.

2.

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nine crimes, unlike the incident in dispute wherein the criminal made no demand at all prior to shooting the victim, there was a demand for property. Three of the robberies were perpetrated on businesses, not on individuals. Trammell Crow, 267 S.W.3d at 16-17. The incidents were not sufficiently similar or frequent to give rise to a duty to prevent the attack. Id. at 17. 5. Publicity When the occurrences of criminal activity are widely publicized, a landowner can be expected to have notice of such crimes. Timberwalk, 972 S.W.2d at 758. However, if criminal activity on the premises is not reported, then this factor weighs against a finding of foreseeability. Id. In Jai Jalaram Lodging, there was no evidence that criminal activity was widely publicized in the media or otherwise known to the defendant landowner. Jai Jalaram Lodging, 225 S.W.3d at 246. It was undisputed that the defendant would have had to contact the police department and request such information at regular intervals during the preceding two years. Id. Pursuant to Timberwalk, property owners bear no duty to regularly inspect criminal records to determine the risk of crime in the area. Id. Are the Timberwalk Factors Limited by Del Lago? In theory, Timberwalk is still the law in Texas with regard to a property owners duty to protect an invitee from the criminal conduct of third persons. However, the Supreme Court recently issued an opinion which may impact Timberwalks applicability, Del Lago Partners, Inc. v. Smith, 2010 Tex. LEXIS 284, 53 Tex. Sup. J. 514 (Tex. April 2, 2010). The Supreme Court explicitly limited the Del Lago opinion to its facts. We do not announce a general rule today. Id. at *18. Nevertheless, the Del Lago opinion seemingly limits Timberwalks applicability in certain cases and may give plaintiffs another route to establish liability. In Del Lago, the plaintiff was injured in the bar at the Del Lago resort when a brawl erupted between twenty to forty very intoxicated customers, opposing members of a wedding party and a fraternity reunion. Id. at *1. The Supreme Court did not focus on the fact that there had been prior reported incidents of bar fights and numerous undocumented occasions of criminal activity, as the appellate court had. Instead, the Court noted that the premises owners employees had observed increasingly verbal and physical hostility between the two groups for over an hour and a half, yet did nothing. When the bar attempted to close, the employees forcefully escorted the two groups out through the same exit. Unsurprisingly, a fight broke B.10

out. Only then did the wait staff call the resorts security team. The Supreme Court specifically noted that: We have not held that a bar proprietor always or routinely has a duty to protect patrons from other patrons, and do not so hold today. Nor have we held that a duty to protect the clientele necessarily arises when a patron becomes inebriated, or when words are exchanged between patrons that lead to a fight, and do not so hold today. Id. at *9-10. Citing to Timberwalk, the Court stated the general rule that a premises owner has no duty to protect invitees from criminal acts by third parties. The recognized exception is when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable. Id. at *11. The Supreme Court distinguished Timberwalk, however, noting that the Timberwalk factors guide courts in situations where the premises owner has no direct knowledge that criminal conduct is imminent. The Timberwalk factors are not the only reasons that a criminal act might be deemed foreseeable. Id. The nature and character of the premises can be a factor that makes criminal activity more foreseeable. Id. at *12. Criminal misconduct is sometimes foreseeable because of immediately preceding conduct. Id at *13. In this case, Del Lago observedbut did nothing to reducean hour and a half of verbal and physical hostility in the bar. Id. at *15. Del Lago had a duty to protect [the plaintiff] because Del Lago had actual and direct knowledge that a violent brawl was imminent between drunk, belligerent patrons and had ample time and means to defuse the situation. Id. at *16. The Court ignored the fact that there had been prior incidents at the bar. Del Lagos duty arose not because of prior similar criminal conduct but because it was aware of an unreasonable risk of harm at the bar that very night. Id. Del Lago had a duty as a landowner because it had actual or constructive knowledge of a condition on the premises that posed an unreasonable risk of harm to invitees. Id. (emphasis in original). The Supreme Court attempted to limit Del Lago to its facts. It ruled that on these facts the duty of the landowner arose because of the likelihood and magnitude of the risk to patrons due to the unreasonable risk of harm. Nevertheless, despite the Supreme Courts explicit statement that it did not announce a general rule, patrons may have a new tool available to attempt to hold a property owner liable for criminal acts of third persons. Under Del Lago, if the property owner has actual knowledge of an imminent unreasonable risk of harm apparent to the owner and

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the owner had readily available opportunities to reduce it, then the owner may be held liable for the criminal acts of third persons. C. Inadequate Security As a Factor The appellate court in Del Lago focused in part on the lack of security. Because it was foreseeable that the incident could occur, the owner had a duty to take proper security measures and breached that duty by failing to have a security officer present in the bar. Del Lago Partners, Inc. v. Smith, 206 S.W.3d 146, 161 (Tex. App.Waco 2006), affd 2010 Tex. LEXIS 284 (Tex. April 2, 2010). The court noted that whether security would have prevented a crime is necessarily determined on a case-by-case basis. Id. at 162. In this case, the owners lack of security proximately caused the plaintiffs injuries. Id. at 163; see also Rivera v. South Green Ltd., 208 S.W.3d 12 (Tex. App. Houston [14th Dist.] 2006, pet. denied) (fact question as to duty and proximate cause existed when there had been fourteen violent crimes within a mile of the assault and the landowner did not warn the tenants or provide security or surveillance cameras). In other cases, lack of security may not be a foreseeable cause of a criminal act. See Jojos Restaurants, Inc. v. McFadden, 117 S.W.3d 279, 281-83 (Tex. App. Amarillo 2003, no pet.) (sudden and spontaneous assault in a parking lot after a traffic altercation was not foreseeable such that a security presence would have prevented the plaintiffs injuries, even though security presence may have prevented crime involving forethought). III. CONSTRUCTION SITES AND PREMISES LIABILITY A. CPRC Chapter 95The Property Owners Shield Property owners generally hire independent contractors to do work on their property. Virtually all construction jobs are performed with independent contractors, if for no other reason than to insulate the owner for liability in the event that one of the workers or contractors causes injury or damage to a third party. There are many cases discussing the circumstances for which a property owner can be held liable for injuries to contractors or their employees, but there is also a statute that governs this situation in the construction context. Section 95 of the Texas Civil Practice and Remedies Code was enacted in 1996 as part of a sweeping tort-reform package. Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 82 (Tex. App.Houston [1st Dist.] 2003, no pet.). The legislature recognized the fact that there are a number of property owners who do not exercise control over construction projects beyond simply hiring someone to do it . . . . Debate11

on S.B. 28 on the floor of the House of Representatives, 74th Leg., R.S. Trans. II-152 (May 3, 1995) (statement of Rep. Combs). Section 95.003 provides: A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless: (1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and (2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn. Needless to say, this statute, especially the actual knowledge requirement, gives property owners a degree of insulation from claims regarding workplace safety. When it applies, the statute is the exclusive remedy for employees of contractors against property owners. Fisher v. Lee & Chang Partnership, 16 S.W.3d 198, 201-202 (Tex. App.Houston [1st Dist.] 2000, pet. denied). B. 1. Elements of the Statute Control To recover under this statute, an injured worker must first show that the owner had control. This means actual control over the manner in which the work is performed merely having control over the facilities is insufficient. Vanderbeek v. San Jacinto Methodist Hosp., 246 S.W.3d 346, 352 (Tex. App. Houston [14th Dist.] 2008, no pet.). A party can prove right to control in two ways: first, by evidence of a contractual agreement that explicitly assigns the premises owner a right to control; and second, in the absence of a contractual agreement, by evidence that the premises owner actually exercised control over the manner in which the independent contractor's work was performed. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). To be liable, the owner must have the right to control the means, methods, or details of the independent contractor's work to the extent that the independent contractor is not entirely free to do the work his own way. Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999). [T]he right to control the work must extend to the operative detail of the contractors work. Chi Energy, Inc. v. Urias, 156

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S.W.3d 873, 880 (Tex. App.El Paso 2005, pet. denied). Having control of the facility is not enough. Dyall v. Pasadena Paper Co., 152 S.W.3d 688, 701 (Tex. App.Houston [14th Dist.] 2004, pet. denied) (en banc) (concluding that success or failure of an attempt to eliminate a hazard in a facility or placing a safety employee at the site does not demonstrate control over the manner in which the work is performed). Further, the control must relate to the injury the negligence causes. Diaz, 9 S.W.3d at 804. 2. Actual Knowledge Even if an owner had control, it still must have actual knowledge of the danger or condition that caused the injury, death or damage and have failed to adequately warn of it. Constructive knowledge is insufficient (currently). Ellwood Texas Forge Corp. v. Jones, 214 S.W.3d 693, 700 (Tex. App.Houston [14th Dist.] 2007, pet. denied). An owner may be aware of the danger, but exercise no control, or he may exercise control and have no actual knowledge of the danger; in either instance, the owner is statutorily shielded from liability. Id. Thus, the plaintiff must establish two independent elements to establish an owners liability: (1) actual knowledge; and (2) control. C. Parties and Situations to Which the Statute Applies The statute applies to property managers as well as owners. Property managers are considered agents of the owners and are therefore protected by the statute. Fisher v. Lee & Chang Partnership, 16 S.W.3d 198, 203 (Tex. App.Houston [1st Dist.] 2000, pet. denied). The statute only applies to a claim against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or subcontractor or an employee of a contractor or subcontractor, and that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement. TEX. CIV. PRAC. & REM. CODE 95.002. Thus, if the claim does not arise from the condition or use of an improvement where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement, the owner may be liable under traditional a premises liability theory. In addition, property owner is defined as a person or entity that owns real property primarily used for commercial or business purposes. TEX. CIV. PRAC. & REM. CODE 95.001(3). To constitute an improvement, there must be a joinder of personalty with realty. There can be no improvement without annexation to realty, and until personalty is annexed to realty, it by definition cannot12

be an improvement. Only upon annexation does the personally lose its characteristics as personal property and become viewed as an improvement. Hernandez v. Brinker Intl, Inc., 285 S.W.3d 152, 156-57 (Tex. App.Houston [14th Dist.] 2009, no pet.) (citing Sonnier v. Chisholm-Ryder Co., Inc., 909 S.W.2d 475, 479 (Tex. 1995)). Under this definition of improvement, many articles or fixtures have been found to constitute an improvement. See, e.g., Sonnier, 909 S.W.2d at 479-83 (acknowledging jury finding that tomato chopper was an improvement when installed in commercial cannery); Reames v. Hawthorne-Seving, Inc., 949 S.W.2d 758, 761-62 (Tex. App.Dallas 1997, pet. denied) (holding conveyor belt on wheels was an improvement although only constructively annexed to realty); Hernandez v. Koch Mach. Co., 16 S.W.3d 48, 52 (Tex. App.Houston [1st Dist.] 2000, pet. denied) (addressing statute-of-repose defense posed by manufacturer of steel-slitting machine, installed at plant, which all parties agreed was an improvement under Texas law); Citizens Natl Bank v. City of Rhome, 201 S.W.3d 254, 259-60 (Tex. App. Fort Worth 2006, no pet.) (holding fuel dispensers, attached to concrete slab at gas station premises, are improvements to realty and not subject to sale as personalty pursuant to tax warrant). As the legislative history indicates, the incident must be related in some way to the work being done by the contractor and subcontractor. If there is an incident that is not related to the work being done by the contractor and subcontractor, then this chapter does not apply to that. So if you have an explosion thats not related to anything that the contractor and subcontractor are doing for their purpose of being there, then this chapter would not apply. Debate on S.B. 28 on the floor of the House of Representatives, 74th Leg., R.S. Trans. II-157-58 (May 3, 1995)( statement of Rep. Junell). By implication, the statute would apply to injuries related to the contractors work. 16 S.W.3d at 202. Thus, the courts have applied Chapter 95 very broadly. See Hernandez, 285 S.W.3d at 157-58. IV. CONCLUSION Premises liability is a special form of negligence. Whether it is the proper theory depends on a number of factors, including the classification of the plaintiff, the duty owed, whether the injury was caused by a condition of the premises, and whether the condition was due to the wrongful acts of others which merely occur on the premises. In most cases, a premises liability claim will be difficult to prove and will likely be dismissed at the summary judgment phase if actual or constructive knowledge cannot be established. The success or failure of a premises liability claim depends in large

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part on the class to which the plaintiff belongs. Even then, the class with the lowest standard (invitee) will still have a difficult burden to prove actual or constructive knowledge on the part of the defendant and survive the summary judgment phase. Thus, in most cases, plaintiffs should review the evidence carefully with an eye toward establishing the knowledge element in any premises liability case (this is especially true in cases involving criminal activity). Likewise, for defendants, the knowledge element in most cases should be the key element in any defense. If the knowledge of the property owner cannot be established, either actual or constructive, then the case will invariably be dismissed on summary judgment.

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