Wednesday, June 17, 2015

I Know I Knew, But...The Texas Supreme Court Clarifies Duty Owed by Landowners to Knowledgeable Invitees (Steven Moses)

By Steven Moses

For many years, landowners have been frustrated by the nonsensical argument asserted by injured patrons that the patron’s own admitted knowledge of an unreasonably dangerous condition was not a bar to recovery and, instead, could only be used as evidence of comparative fault.

On June 12, 2015, the Texas Supreme Court issued its opinion in Austin v. Kroger Texas, L.P., No. 14-0216 (Tex., June 12, 2015) and finally clarified some uncertainty and confusion with regard to the question: does a landowner have a duty to warn an invitee of a danger that is open and obvious or of which an invitee has knowledge? In short, the Texas Supreme Court has answered, no. Therefore, under Texas law a landowner does not have a duty to warn or make safe an unreasonably dangerous condition that is open and obvious or of which an invitee has knowledge.

In this case, Austin, an employee of Kroger, a non-subscriber to the Texas workers' compensation scheme, was injured while cleaning up a spill as part of his duties. Austin admitted he knew of the spill and acknowledged his appreciation of the dangers presented by the spill by placing a wet floor sign near it. Despite his carefulness, Austin was injured while tiptoeing through the spill.
Austin sued Kroger asserting claims of negligence, gross negligence and premises liability. Kroger argued that its duty to warn or make safe was eliminated since Austin had knowledge of the spill and, thus, Kroger owed no duty. Austin argued that Texas courts had rejected the “no-duty” doctrine under which an invitee’s recovery was barred by his knowledge of the alleged unreasonably dangerous condition and, thus, his knowledge could only be used as evidence of his proportionate responsibility.  Austin also argued that this theory should be applied equally to the employer-employee relationship since employees are treated as invitees in premises liability claims.

The Supreme Court disagreed with Austin and provided clarification to the seemingly conflicting and misapplied notion that a plaintiff is required to establish his lack of knowledge of a condition in order to make a prima facie case. Instead, although the Texas Supreme Court held that neither the obviousness of a danger nor an employee's awareness of the danger eliminates an employer's duty to provide a safe workplace, the Court did hold that, with two notable exceptions, an employer's premises liability duty to its employees includes only the duty to protect or warn against concealed hazards of which the employer is aware, or reasonably should have been aware, but the employee is not. More simply, if the employee is aware of the condition, the employer has no duty to warn or make safe, even in a non-subscriber situation.

More importantly, the Texas Supreme Court further held that a landowner owes no duty to protect an invitee against a dangerous condition that is open and obvious or known to the invitee. This opinion represents a major change in Texas premises liability law. Now, evidence that the invitee was aware of the condition will permit the premises owner to seek summary judgment dismissal on the grounds that the invitee’s knowledge of the condition eliminated any duty to warn or make safe.

While the opinion is a major shift in premises liability law, the Texas Supreme Court recognized two exceptions under which the landowner still has a duty to warn despite the invitee’s awareness of the risk.  First, the criminal-activity exception, arises in cases involving dangerous conditions that are caused by or result from the foreseeable criminal activity of third parties.  There a premises owner still owes a duty to warn an invitee even when that condition is obvious or known to the invitee. The second exception, the necessary use exception, arises where the facts demonstrate that it is necessary for the invitee to use the unreasonably dangerous premises and the landowner should have anticipated that the invitee was unable to avoid the unreasonable dangers despite the invitee's awareness of the risk. For this exception, too, the landowner will still owe a duty to warn or make safe.

Although the Supreme Court’s opinion provides premises owners with a new duty argument that may be made at the summary judgment stage, the Court also recognized the existence of a necessary instrumentalities claim that may be brought against employers. Under this rule, an employer may be liable for failure to furnish necessities in the performance of a job, including necessary equipment, training or supervision. The Court distinguished this type of claim from general premises-liability or negligent activity claims since this type of claim typically involves nonfeasance or misfeasance on the part of the employer.

Although this case does not completely dispose of all premises liability claims, it certainly gives landowner-defendants a new and, perhaps, very powerful argument in cases involving invitees who have knowledge of a dangerous condition.

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