The owner of premises may be subjected to liability in two situations: (1) those arising from a premises defect; and (2) those arising from an activity or instrumentality on the premises. Koch Refining Co. v. Chapa, 11 S.W.3d 153 (Tex. 1999). A person injured on another’s property has two potential causes of action against the owner of the property: (1) a negligence claim for negligent activity on the premises, and (2) a premises liability claim for an unreasonably dangerous condition on the premises. E.I. DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48 (Tex. App. Houston [14th Dist.] 2014). These distinct theories of recovery require different elements of proof. Taylor v. Louis, 349 S.W.3d 728 (Tex. App.–Houston [14th Dist.] 2011, writ denied).
Premises liability is a branch of negligence law, with different elements that define a property owner’s duty with respect to those who enter the property. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Under premises-liability principles, a property owner generally owes those invited onto the property a duty to make the premises safe or to warn of dangerous conditions as reasonably prudent under the circumstances. Austin v. Kroger Texas, LP, 465 S.W.3d 193, 202 (Tex. 2015); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983); Smith v. Henger, 226 S.W.2d 425, 431 (Tex. 1950).
In Austin v. Kroger Texas, LP, 465 S.W.3d 193, 201 (Tex. 2015), an employee fell while mopping a restroom floor. An oily liquid had leaked onto the floor, and the employee was the “floor clean up person.” The employee recognized the danger that the slippery liquid presented and placed “wet floor” signs around the area. He did not follow Kroger’s safety handbook as it pertained to cleaning up spills on the floor, and while he was cleaning the spill, he slipped and fell. Kroger argued that because the risk of slipping and falling on a wet floor is commonly known, and the employee admitted that he was aware of the wet floor and appreciated the risk, it had no duty to protect or warn the employee against that risk.
The Austin court opined that “when the condition is open and obvious or known to the invitee, the landowner is not in a better position to discover it. When invitees are aware of dangerous premises conditions, whether because the danger is obvious or because the landowner provided an adequate warning, the condition will, in most cases, no longer pose an unreasonable risk because the law presumes that invitees will take reasonable measures to protect themselves against known risks.”
In Austin v. Kroger Texas, LP, the Court clarified that an invitee’s awareness of a dangerous premises condition does not bear on the issue of contributory negligence, but instead relieves the landowner of a legal duty to warn the invitee of the condition. This holding effectively reinstates the “no duty” doctrine in Texas, which had previously been abolished.
Duty is the only portion of the negligence case left exclusively in the hands of the trial judge. Nabors Drilling, USA, Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (emphasis added). It is not a finding of fact made by the jury. Typically, where a defendant challenges the existence of a duty of care, he or she asks the trial court to exercise its role and declare as a matter of law that no duty exists either by way of a proper motion for summary judgment or upon the completion of the plaintiff’s proof at trial. While the question is one of law, it is informed by the facts, and the court should consider the facts in the light most favorable to the plaintiff and then should determine whether the matter should proceed or be dismissed based upon the law. Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991).
In order to satisfy the open and obvious requirement, the dangerous condition must be open and obvious at the time of the injury, not when looking back at the condition at some time following the injury. For example, if a person dove into a murky lake that happened to only be a few feet deep, and at the time, the person was unaware that the lake was only a few feet deep (and the person was injured after diving into the lake), it cannot be argued that the dangerous condition, a shallow lake, was open and obvious.
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