Employer's/Landowner Duty To Employee & Invitee

Jul 12, 2015 — by Jeff Mundy
Tags: Premise Liability

an employer has the same premises-liability duty to its employees as other landowners have to invitees on their premises. An invitee is "one who enters the property of another 'with the owner's knowledge and for the mutual benefit of both.'" Motel 6 G.P., Inc. v. Lopez929 S.W.2d 1, 3 (Tex. 1996) (quoting Rosas v. Buddies Food Store518 S.W.2d 534, 536 (Tex. 1975)). Employees working at their employers' premises fit this description, and this Court has stated that an employer's duty to make its premises reasonably safe for employees is "in all material respects . . . identical" to a landowner's duty to make its premises reasonably safe for invitees. Robinson, 280 S.W.2d at 240; see also Hernandez v. Heldenfels374 S.W.2d 196, 197 (Tex. 1963) (holding that employee was invitee, rather than licensee, while working at his employer's premises). As mentioned, the Court abolished the no-duty rule only for employer-employee cases in Robinson, 280 S.W.2d at 240, but later did the same for all other premises-liability cases in Parker, 565 S.W.2d at 512. Other than that brief rift, the Court has treated employers as having the same premises-liability duties as all other landowners, and we confirm that approach today.

At different times, this Court has described a landowner's premises-liability duty to invitees as a duty to make reasonably safe,*fn9 a duty to warn,*fn10 or a duty to make safe or warn.*fn11 While potentially confusing, these descriptions are not at odds with each other. A landowner has a duty to exercise reasonable care to make the premises safe for invitees. Obviously, the landowner can satisfy this duty by eliminating the dangerous condition or by mitigating the condition so that it is no longer unreasonably dangerous. See State v. Williams940 S.W.2d 583, 584 (Tex. 1996). But the Court has repeatedly recognized that, in most cases, the landowner can also satisfy its duty by providing an adequate warning of the danger. See, e.g., Escoto, 288 S.W.3d at 412; Goss, 262 S.W.3d at 794; Gen. Elec. Co. v. Moritz257 S.W.3d 211, 216 (Tex. 2008); Cent. Ready Mix Concrete Co. v. Islas228 S.W.3d 649, 651 (Tex. 2007); Shell Oil Co. v. Khan138 S.W.3d 288, 295 (Tex. 2004)

a. The General Rule

Applying the general rule, the Court has repeatedly described a landowner's duty as a duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not. See, e.g., Escoto, 288 S.W.3d at 412; Goss, 262 S.W.3d at 794; Moritz, 257 S.W.3d at 216; Islas, 228 S.W.3d at 651; Khan, 138 S.W.3d at 295. Ordinarily, the landowner need not do both, and can satisfy its duty by providing an adequate warning even if the unreasonably dangerous condition remains. See Williams, 940 S.W.2d at 584 (holding that landowner "had a duty to warn or make safe, but not both"); see also TXI Operations, L.P. v. Perry278 S.W.3d 763, 765 (Tex. 2009) (observing that defendant could have satisfied its duty by either repairing pothole or providing adequate warning sign). This general rule is consistent with the reasons for imposing a duty on landowners in the first place. The landowner is typically in a better position than the invitee to be aware of hidden hazards on the premises, so the law mandates that the landowner take precautions to protect invitees against such hazards, to the extent the landowner is or should be aware of them. See Shell Chem. Co. v. Lamb493 S.W.2d 742, 747 (Tex. 1973) (discussing landowner's "superior position to know of or discover hidden dangerous conditions on his premises"); see alsoRestatement (Third) of Torts: Liab. For Physical & Emotional Harm § 51 cmt. t (2012) (addressing landowner's "superior knowledge of the dangerous condition").

When the condition is open and obvious or known to the invitee, however, 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, which may include a decision not to accept the invitation to enter onto the landowner's premises. See, e.g.Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 51 cmt. a (2012) (observing that reasonable care "only requires attending to the foreseeable risks in light of the then-extant environment, including foreseeable precautions by others"); Restatement (Second) of Torts § 343 cmt. b (1965) (observing that landowner must "give such warning that the [invitee] may decide intelligently whether or not to accept the invitation, or may protect himself against the danger if he does accept it"). This is why the Court has typically characterized the landowner's duty as a duty to make safe or warn of unreasonably dangerous conditions that are not open and obvious or otherwise known to the invitee. See, e.g., Escoto, 288 S.W.3d at 412; Goss, 262 S.W.3d at 794; Moritz, 257 S.W.3d at 216; Islas, 228 S.W.3d at 651; Khan, 138 S.W.3d at 295.

This general rule is also consistent with the Court's recognition that a landowner's duty to invitees is not absolute. A landowner "is not an insurer of [a] visitor's safety." Del Lago Partners, Inc. v. Smith307 S.W.3d 762, 769 (Tex. 2010) (quoting Restatement (Second) of Torts § 344 cmt. f). Instead, a landowner's premises-liability duties, like its negligence duties, are limited to a duty to exercise ordinary, reasonable care. Elwood, 197 S.W.3d at 794 ("An employer has a duty to use ordinary care in providing a safe workplace. . . . However, an employer is not an insurer of its employees' safety.").*fn12 Thus, a defendant has "no duty" to take safety measures beyond those that an ordinary, reasonable landowner would take. What a reasonable landowner would do is often a jury question, but sometimes it is not. The Court has recognized that, in most circumstances, a landowner who provides an adequate warning acts reasonably as a matter of law, and since there is no need to warn against obvious or known dangers, a landowner generally has no duty to warn of hazards that are open and obvious or known to the invitee. See, e.g., Goss, 262 S.W.3d at 795; Moritz, 257 S.W.3d at 218; Islas, 228 S.W.3d at 651; Skiles, 221 S.W.3d at 568-69; Elwood, 197 S.W.3d at 795; Khan, 138 S.W.3d at 295; Coastal Marine Serv. of Tex., Inc. v. Lawrence988 S.W.2d 223, 225 (Tex. 1999).

b. Exceptions to the General Rule

We use the qualifiers "generally," "ordinarily," and "in most cases" while discussing the general rule because the Court has struggled at times with cases in which it concluded that the provision of a warning or the obvious nature of the danger was not sufficient to make the premises reasonably safe as a matter of law. See, e.g., Del Lago, 307 S.W.3d at 774 (stating that "[i]n some circumstances, no warning can suffice as reasonably prudent action to reduce or remove an unreasonable risk"). Thus, in some cases, the Court held that an otherwise "adequate" warning or an invitee's knowledge of the danger was not sufficient to discharge the landowner's duty. See Parker, 565 S.W.2d at 512; Robinson, 280 S.W.2d at 240. But in most cases, the Court has continued to apply the general rule. See Goss, 262 S.W.3d at 795; Skiles, 221 S.W.3d at 568-69; Elwood, 197 S.W.3d at 795. This has resulted in the "arguable conflict in Texas law" that led the Fifth Circuit to certify its question to us in this case. 746 F.3d at 204.

Today we reaffirm the general rule while clarifying and confirming the existence of two exceptions that the Court has recognized when the landowner's provision of an otherwise adequate warning is legally insufficient to make the premises reasonably safe. The first exception may arise when a dangerous condition results from the foreseeable criminal activity of third parties. We will refer to this as the criminal-activity exception. The second exception may arise when the invitee necessarily must use the unreasonably dangerous premises, and despite the invitee's awareness and appreciation of the dangers, the invitee is incapable of taking precautions that will adequately reduce the risk. We will refer to this as the necessary-use exception. In cases involving these exceptions, we have held that the obviousness of the danger and the invitee's appreciation of it may be relevant to a landowner's defense based on the invitee's proportionate responsibility, but they do not relieve the landowner of its duty to make the premises reasonably safe.

(1) The Criminal-Activity Exception

The seminal case in which this Court defined a landowner's duty with regard to protecting invitees against third parties' criminal activities is Timberwalk Apartments, Partners, Inc. v. Cain972 S.W.2d 749 (Tex. 1998). In that case, a tenant sued her apartment complex after she was sexually assaulted in her apartment, asserting that the complex's inadequate security was a proximate cause of her assault. Id. at 751. After holding that the claims sounded in premises liability rather than negligent activity, id. at 753, the Court described the contours of the specific duty a landowner owes with respect to third-party criminal acts:

As a rule, "a person has no legal duty to protect another from the criminal acts of a third person." An exception is that "[o]ne who controls . . . premises does have a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee." . . .. . . .. . . A duty exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable.

Id. at 756 (quoting Walker v. Harris924 S.W.2d 375, 377 (Tex. 1996)). In addressing this duty, the Court did not consider or mention the obviousness or the plaintiff's awareness of the alleged risk, or whether the landowner could fulfill its duty by providing an adequate warning. See id. Nor did the Court do so when describing the Timberwalk duty in cases that followed it. See, e.g., W. Invs., Inc. v. Urena162 S.W.3d 547 (Tex. 2005);*fn13Mellon Mortg. Co. v. Holder5 S.W.3d 654 (Tex. 1999).*fn14


More recently, when the plaintiff in Del Lago argued that unreasonably dangerous conditions resulting from inadequate security at a bar proximately caused his injuries when a fight broke out, the Court again applied the Timberwalk duty:

Generally, a premises owner has no duty to protect invitees from criminal acts by third parties. We have recognized an exception when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable. . . .. . . .. . . We hold that Del Lago had a duty to protect Smith 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.

Del Lago, 307 S.W.3d at 767-69.


The Court rejected the resort owner's argument that it had no duty to protect the plaintiff from the risks because the danger was as obvious and known to the plaintiff as it was to the resort owner. Id. at 772. In doing so, the Court stated that the resort's position would "revive the doctrine of voluntary assumption of the risk as a complete bar to recovery" and would "revive the no-duty rule" by holding "as a matter of law that an invitee's decision not to remove himself from a known and dangerous premises condition bars any recovery against the landowner." Id. at 772-73. This language at least arguably indicates that the Court was applying a general rule when it refused to hold that the plaintiff's knowledge of the risks eliminated the landowner's duty to make the premises reasonably safe. But the Court expressly clarified that it was not announcing a general rule. Id. at 770 ("We do not announce a general rule today."). Instead, the Court made it clear that its decision was based on the fact that the plaintiff's awareness of the risk was not sufficient in that case to enable him to avoid the harm. Specifically, in response to the dissent's reliance on section 343A(1) of the Restatement (Second) of Torts, which posits that a landowner cannot be liable for harm resulting from "known or obvious" conditions, the Court pointed out section 343A concludes by saying "unless the [landowner] should anticipate the harm despite such knowledge or obviousness." Id. at 774. Finding that this language "anticipate[s] today's uncommon facts," the Court concluded that the resort "may still be liable" because it "had reason to expect harm notwithstanding [the plaintiff's] awareness of the risk." Id.The Court thus expressly confirmed that its "narrow and fact-specific" holding applied only when the landowner "should anticipate the harm despite such knowledge or obviousness," and that it was "not hold[ing] today that a landowner can never avoid liability as a matter of law in cases of open and obvious dangers." Id.

Clarifying the arguable conflict in the Court's precedents, we hold that Del Lago represents an exception to the general rule that a landowner has no duty to warn an invitee of unreasonably dangerous conditions that are obvious or known to the invitee, which exception applies in cases involving dangers resulting from a third party's criminal conduct in which the landowner should have anticipated that the harm would occur despite the invitee's knowledge of the risks. In such cases, the invitee's appreciation of the danger remains relevant to the landowner's proportionate-responsibility defenses, see Del Lago, 307 S.W.3d at 772-73, but it does not relieve the landowner of its duty to take reasonable steps to make the premises safe. See Eagle Trucking Co. v. Tex. Bitulithic Co.612 S.W.2d 503, 507 (Tex. 1981).

(2) The Necessary-Use Exception

A second exception to the general rule arises from the Court's decision in Parker, which predates the Court's later decisions restating and applying the general rule. In Parker, the plaintiff fell while descending an improperly lighted staircase in a common area that she had to use to exit her sister's apartment. 565 S.W.2d at 513. Because the plaintiff was aware of the darkness and the dangers it presented, she took measures to mitigate the risks by having her sister hold a flashlight to illuminate the stairs and by taking careful steps while holding on to the handrail. Id. at 514. Nevertheless, because the stairs included narrow, unevenly distributed steps and turned such that the flashlight could not illuminate all the way down, the measures were insufficient and the plaintiff fell. Id. The Court adopted in that case the specific and narrow duty recognized in sections 360 and 361 of the Restatement (Second) of Torts. Id. at 515-16. Under section 361,

[a] possessor of land who leases a part thereof and retains in his own control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care (a) could have discovered the condition and the risk involved, and (b) could have made the condition safe.

Id. at 515 (quoting Restatement (Second) of Torts § 361).


In addition, however, the Court abolished the "no-duty rule" in all landowner-invitee cases, using language that is difficult to construe as anything other than the adoption of a new general rule. Id. at 517 ("We now expressly abolish the so-called no-duty concept in this case and . . . 'henceforth in the trial of all actions based on negligence . . . .'") (quoting Farley v. M M Cattle Co.529 S.W.2d 751, 758 (Tex. 1975)). The Court enumerated its reasons for doing so, including its observations that (1) the no-duty rule "has contributed confusion which has defied the efforts of our best scholars at explanation and application"; (2) the Court, "based on logic, has already undermined the no-duty rule" due to "[t]he inextricable mixing" of a defendant's duty and "a plaintiff's burden to negate his own knowledge and appreciation" with "voluntary assumption of risk"; (3) "[t]he legislature by its adoption in 1973 of the comparative negligence statute evidenced a clear policy purpose to apportion negligence according to the fault of the actors"; and (4) "[t]he no-duty doctrine is so elusive that precedent is non-predictive and unhelpful." Id. at 517-18. The Court thus concluded that "[a] plaintiff's knowledge, whether it is derived from a warning or from the facts, even if the facts display the danger openly and obviously, is a matter that bears upon his own negligence; it should not affect the defendant's duty." Id. at 521.

As we have mentioned, despite this rather clear language, the Court has since repeatedly restated and applied the general no-duty rule in the landowner-invitee context, without overruling the decision in Parker. See, e.g., Escoto, 288 S.W.3d at 412; Goss, 262 S.W.3d at 794; Moritz, 257 S.W.3d at 216; Islas, 228 S.W.3d at 651; Khan, 138 S.W.3d at 295. To the extent that these decisions conflict with Parker, we think the better approach is to follow our more recent precedent and recognize the Parker rule as an exception that applies when the facts demonstrate that (1) it was necessary that the invitee use the unreasonably dangerous premises and (2) the landowner should have anticipated that the invitee was unable to avoid the unreasonable risks despite the invitee's awareness of them. As the Court observed in Parker:

One's conduct after he is possessed of full knowledge, under the circumstances may be justified or deemed negligent depending upon such things as the plaintiff's status, the nature of the structure, the urgency or lack of it for attempting to reach a destination, the availability of an alternative, one's familiarity or lack of it with the way, the degree and seriousness of the danger, the availability of aid from others, the nature and degree of the darkness, the kind and extent of a warning, and the precautions taken under the circumstances by a plaintiff in walking down the passageway.

565 S.W.2d at 520. Although the Parker Court concluded that these "are matters which bear upon 'the reasonableness of an actor's conduct in confronting a risk . . . under principles of contributory negligence,'" id. (quoting Farley, 529 S.W.2d at 758), the Court's subsequent decisions have repeatedly recognized that, despite Parker, a landowner generally has no duty to protect or warn an invitee against unreasonable dangers that are open and obvious or otherwise known to the invitee.


Resolving the Court's "arguably conflicting . . . precedent," 746 F.3d at 197, we hold that Parker represents a second exception to the general rule. Although, as the Parker Court noted, "not every 'open and obvious' condition of danger . . . precludes recovery," 565 S.W.2d at 520, the Court's more recent decisions confirm that some do, as a matter of law. Although "[d]anger is relative, and a person of ordinary care may incur some hazards," id., the Court's more-recently reaffirmed general rule confirms that landowners have no duty to protect or warn such persons when they are aware of the risks and could have avoided them. We thus reaffirm the general rule, but retain Parker as an example of an exception that recognizes a landowner's duty to make its premises safe when, despite an awareness of the risks, it is necessary that the invitee use the dangerous premises and the landowner should have anticipated that the invitee is unable to take measures to avoid the risk. When this necessary-use exception applies, like the criminal-activity exception, the plaintiff's awareness of the risk does not relieve the landowner's duty to make the premises safe, but it remains relevant to the issue of proportionate responsibility unless that defense is legally unavailable. Id. at 520-21.


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