A Premises Liability Primer

July 30th, 2018 By Eric S. Peabody

A person injured on another’s property may have either a negligence claim or a premises-liability claim against the property owner or occupier. When the injury is the result of a contemporaneous, negligent activity on the property, ordinary negligence principles apply; when the injury is the result of the property’s condition rather than an activity, premises liability principles apply. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016).  Although they are related, the theories are not interchangeable, and “a general-negligence submission cannot support the plaintiff’s recovery in a premises liability case.” United Scaffolding, Inc. v. Levine, 573 S.W.3d 463 (Tex.  2017), reh’g denied (Jan. 26, 2018). In a negligent-activity case, a property owner or occupier must “do what a person of ordinary prudence in the same or similar circumstances” would have done, while in a premises liability case the owner must “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier . . . knows about or in the exercise of ordinary care should know about.” Id.  at *4 (quoting Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998)). A primary distinction between these claims is that “negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe.” Id. (emphasis added and internal citation omitted).  Therefore, if a negligent activity creates an unsafe condition, the cause of action is for premises defect, not negligent activity. Id. at *5.  Although the Texas Supreme Court has acknowledged that “at some point, almost every ‘artificial condition upon which a premises liability claim is based may be created by an activity,’” the court continues to recognize that “slip/trip-and-fall cases have consistently been treated as premises defect causes of action” despite attempts by plaintiffs to characterize them as simple negligence. Id.  (internal citations omitted).

To establish a cause of action for premises defect, the plaintiff must prove that: (1) the defendant had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm to the plaintiff; (3) the defendant did not exercise reasonable care to reduce or to eliminate the risk; and (4) the defendant’s failure to use such care proximately caused the plaintiff’s injuries. Id. (quoting Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983)). Submitting a simple negligence question without the accompanying Corbin elements as instructions and definitions will not support recovery in a premises defect case. Id.

In this regard, premises defect represents a theory of recovery that is distinct and independent from simple negligence.  If the plaintiff fails to request and secure findings on premises defect so that “the wrong theory of recovery was submitted and the correct theory of recovery was omitted entirely, the defendant has no obligation to object.”  Id. at *12.  A defendant may not, however, invite error by persuading a trial court to adopt a jury charge that the defendant later challenges as submitting an improper theory of recovery.  Id.

Takeaway:  Although premises liability and negligence are related, a plaintiff’s burden of proof is more onerous in the case of a premises defect, which requires instructions and definitions in the jury charge that are protective of the defendant. The Texas Supreme Court has clarified that the plaintiff must submit the proper theory—or risk losing any judgment on appeal.