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Premises Liability Lawyer

Serving clients in Beaumont, Jasper, Port Arthur, Nederland, Groves, Vidor, Orange, Winnie and other Southeast Texas cities

Lawyers refer to claims for injuries that occur on someone else’s property as a premises liability case. Whether someone slips and falls on some substance on the grocery store floor, is hit by a forklift in a mass merchandising store, trips over a loose brick on a walkway, is hit when a poorly nailed painting falls in someone’s home, or is injured in a refinery explosion, the case will always be some sort of premises liability claim. Unfortunately, the law that has developed about these claims is complex and Texas law has not followed the trend in many states to decide that all premises owners and occupiers must simply exercise reasonable care to prevent injuries to people on their property given the circumstances existing at the time. Analysis of premises liability cases is a daily activity for board certified personal injury attorneys like those at Bush Lewis, PLLC, but seem very odd or even foreign to the average person.

Cause of Injury: Activity vs. Condition

Not all injuries occurring on a property provide the potential basis for a successful premises liability claim against the owner or occupier of the premises. Whether someone is injured as a visitor in the home of a friend or as a customer in a place of business, the owner or occupier of the premises where the injury occurred is not automatically responsible for the injury. The initial determination should be whether the injury was caused by a negligent activity or by a dangerous condition on the property. When a negligent activity on a premise causes an injury, the injured person has a claim for ordinary negligence against the person or business involved in the negligent activity instead of a premises liability claim for a dangerous condition. Texas law allows a negligent activity claim against a premises occupier only if the activity is still ongoing or the injury occurred off the premises or when the activity occurred off the owner’s premises but created a dangerous condition on the owner’s premises. Once a negligent activity by a premises occupier is completed but leaves a dangerous condition, the only claim against the occupier is a premises liability claim for the dangerous condition that remained after the activity was over and not for the original negligent activity.

Control of the Premises Creates Responsibilities to Those Who Enter Premises

The person or entity responsible for the safety of the premises may be the person who owned, occupied, or controlled the premises. Usually the entity who possesses the property is the one who is responsible because that is typically the one who controls the property. The type control necessary to be legally responsible is the ability to oversee, administer, manage, direct, regulate, govern, superintend, or direct. The determination of who has this actual control of particular premises may be decided by contract or conduct. Such control might rest with the current owner, a former owner, an occupier, a tenant, or a lessee. Generally, only the person with actual legal control could ever be legally responsible for injuries to a person on the premises and only if they owed a legal duty (or level of care) to the injured person and violated that legal duty.

Status of Injured Person: Invitee, Licensee, or Trespasser

The level of care or duty a premises controller has (or owes) to a person on its premises depends on the reason the person is there (known in the law as status).
  • Invitee: An invitee is any person who enters premises with the controller’s express or implied knowledge and for the mutual benefit of the person entering and of the controller. The classic example of an invitee is a customer in a business. This person seeks to purchase something needed and the controller seeks to profit from selling to the person.
  • Licensee: The difference between a licensee and an invitee is that an invitee is on the premises for the mutual benefit of both the invitee and the controller. By contrast, a licensee is there only for the licensee’s benefit and not for any business dealings with the controller or for any other benefit of the controller. The owner or occupier either directly or impliedly allows the licensee to enter on the premises but only for the licensee’s benefit or for the business of someone other than the possessor, without benefit to the owner or occupier.
  • Trespasser: Any person who enters the premises without consent or lawful right and for their own purpose or curiosity is a trespasser. However, there are exceptions to these classifications and a person’s classification can change after the person enters the property.

Duties Owed by Possessor of Premises to Those on the Premises

Invitees

A possessor of premises has a duty to invitees to exercise ordinary care to prevent conditions on the premises that pose an unreasonable risk of harm about which the possessor knows or reasonably should have known. A possessor violates this duty when the possessor both fails to adequately warn an invitee of the danger and fails to make the condition reasonably safe. To recover against a possessor who violates this duty, an invitee must prove:
  • The injured person was actually an invitee
  • The person against whom the claim is made actually is the possessor of the premises
  • There was a condition that posed an unreasonable risk of harm
  • The possessor knew or should have known of the danger
  • The possessor failed (and so breached its duty of ordinary care) both to:
    • Adequately warn the injured person of the condition
    • To make the condition reasonably safe/li>
  • The possessor’s breach must have caused the injury
  • And the possessor’s fault must be greater than the injured person’s fault in causing the injury
This is a somewhat complicated and multi-level process that makes it much more difficult in Texas to hold a possessor responsible for an injury that occurs on the possessor’s premises than most people realize. Not only must the condition create a dangerous condition; the condition must be unreasonably dangerous and the unreasonably dangerous condition must be known about by the possessor or such a bad condition that a reasonable possessor would have known about it.

Licensees

Because an invitee is someone on the premises from whom the premises occupier is going to benefit, the difficulty of the burden of proving a premises liability claim for an invitee (such as a business customer) is the easiest premises claim. Claims for licensees and trespassers are more difficult because an occupier does not owe as high a duty of safety to those on the premises for something from which the occupier does not benefit.
A licensee (a person who had express or implied permission to enter and remain on the premises) may recover against the possessor of the premises on which the licensee was injured only if:
  • The injured person was really a licensee
  • The claim is made against the actual possessor of the premises
  • There was a condition on the premises that was unreasonably dangerous
  • The premises possessor actually knew about the danger (unlike the situation with invitees, what the possessor should have known is irrelevant)
  • The injured licensee did not have actual knowledge of the danger
  • The possessor breached its duties of ordinary care by failing to both:
    • Adequately warn the licensee of the condition
    • Make the condition reasonably safe
  • The possessor’s breach caused the licensee’s injury

Trespassers

Because trespassers are not wanted on the premises, the possessor of premises owes very little responsibility to trespassers–especially when compared to invitees or licensees.
When an injured trespasser (a person who entered the possessor’s premises without any right, express or implied invitation, or permission, and for the trespasser’s own purposes) to prevail on a claim against the premises possessor, the trespasser must prove:
  • The injured person was a trespasser
  • The entity against which the claim is made was a possessor of the premises
  • A condition on the premises created an unreasonable risk of harm
  • The possessor breached its duty of care by acting willfully, wantonly, or with gross negligence
  • The possessor’s breach was the cause of the trespasser’s injury
In other words, trespassers generally do not recover without intentional or gross negligence conduct by the premises possessor.

Different Duties

Duties to Invitee

One who enters the possessor’s premises with permission and for the benefit of the possessor (becoming an invitee) makes the possessor responsible for conditions that pose an unreasonable risk of harm if the possessor actually knew or should have known about the condition. In such invitee situations, whether the invitee knew only matters in dividing responsibility between the invitee and the possessor. The possessor has a duty to exercise ordinary care and must inspect and make safe or give adequate warnings about any dangerous conditions. By contrast, the invitee has a duty to exercise the same or similar ordinary care as would an ordinary reasonable person in the same or similar circumstances to avoid injury. (The classic debate in many business invitee cases is whether an ordinary reasonable person in the same situation would be looking for foreign objects on the floor or at the attractive displays the premises owner spent so much time creating to grab the attention of business invitees!)

Duties to Licensee

One who enters the possessor’s premises with the possessor’s permission but for his or her own purpose (becoming a licensee) makes the possessor responsible for conditions on the premises that pose an unreasonable risk of harm but only if the possessor actually knew of the danger and the licensee did not know about the unreasonably dangerous condition. In other words, if the licensee knew about the dangerous condition, the licensee cannot recover from the possessor for any injuries caused by the dangerous condition. The possessor has no duty to the licensee to inspect the premises but must exercise due care to make safe or adequately warn about any dangerous conditions known to the possessor. If the possessor has no actual knowledge of the dangerous condition, the possessor is neither responsible for warning about it or correcting it.

Duties to Trespasser

When someone enters premises for their own purpose without legal authority or the possessor’s permission, that person becomes a trespasser. A possessor who has actual knowledge of a condition that poses an unreasonably dangerous risk of harm has no duty to exercise ordinary care but does have a duty to refrain from injuring willfully, wantonly, or through gross negligence. However, such possessors have no duty to trespassers to anticipate trespassers, to inspect the premises, or to keep the premises safe for trespassers.

Changing Status of Premise Visitor

Situations can exist that change the status of someone entering or already upon a possessor’s property. If repeated trespasses are tolerated, an injured trespasser will be considered to have become an invitee, with the same legal rights of an invitee. When someone is forced to enter premises as a trespasser because of an emergency situation, the entry may be considered necessary and the injured visitor’s status changed to that of a licensee. Volunteer rescuers will usually be considered licensees but if the volunteer enters the premises in response to a cry for help, he or she may become an invitee. Someone who enters the premises as an invitee but departs from the area to which he or she was invited to visit other areas to which there was no invitation, the person will become a licensee or, in some cases, a trespasser. When someone enters premises for recreational purposes (as defined in the Texas Recreational Use Statute), the possessor only owes the duty owed to a licensee to not injure the licensee from gross negligence, malicious intent, or bad faith. In Texas, someone who is abducted and taken to someone’s commercial property is owed no duty by the premises occupier because the kidnapped person is an unforeseen victim. When a possessor owns an easement adjacent to his premises, the possessor owes persons on the easement the duty of ordinary care even though people on the easement may be trespasses as to the possessor.

Attractive Nuisance

In special situations, a possessor can be held responsible for the injury or death of children who are trespassers on the possessor’s premises under a special rule of law known as “attractive nuisance.” If all the parts required to apply attractive nuisance are present, the possessor will owe a trespassing child the same duty owed an invitee.
Attractive nuisance exists when:
  • A child enters possessor’s premises without the possessor’s knowledge and for the child’s own benefit (becoming a trespasser)
  • The possessor knew or should have known there was an artificial condition on the premises
  • The possessor knew or should have known that children were likely to trespass in the area around the special condition
  • The possessor knew or should have known the artificial condition posed an unreasonable risk of death or serious bodily harm to children
  • The child, because of youth, did not discover the artificial condition, realize the risk involved in meddling with it, or realize the risk involved in coming along within the area of made dangerous by the condition
  • The utility to the possessor of maintaining the artificial condition and the burden of eliminating the danger were slight as compared with the risk to children
  • The possessor did not exercise reasonable care to eliminate the danger or otherwise protect the child
  • The possessor’s conduct caused the child’s injury
Attractive nuisance is recognized as a basis for liability for injuries to trespassing children in most states. This is the typical situation of the children who climb the four foot fence to swim in the neighbor’s swimming pool every time the neighbor’s appear to be out of town. In Texas, we have a complicated statute to wade through to see if the law applied in a particular case.

Invitee, Licensee, or Trespasser?

Over the years, Texas courts have made decisions that establish the status of many common visitors to different premises, telling us in advance how the law will classify those specific injured visitors:

Invitees–

Business Patron • Church Member • Club Member • Employee on Duty Building Inspector • Sanitary Inspector • Meter Readers • Newspaper Delivery Person • Mail Carrier • Garbage Collector • Emergency Response Fireman/Police Officer Injured by Atypical Risk • Tenant Injured by Concealed Defect Known to Owner • Tenant Injured on Part of Premises in Common Area that Owner Controlled • Door-to-Door Salesman after Being Invited into House • Child with Parent Who Is Invitee • Child Trespasser Too Young to Appreciate Danger

Licensees-

Member of Owner’s Household • Social Guest • Emergency Response Fireman/Policeman Injured by Typical Risk • Off-Duty Employee in Break Room • Neighbor Who Came to Borrow Tools • Person Soliciting for Charity • Hunter Invited by Owner • Door-to-Door Salesman Before Being Invited Into Home • Uninvited But Tolerated Trespasser • Volunteer Rescuer

Trespassers–

Uninvited, Unexpected, or Unwanted Entrant • Employee Departing from Expected Area • Subtenant Without Owner’s Consent • Hunter Without Permission • Entrant or Hunter Under Recreational Use Statute (usually without paying fee)

Liability to Workers Building, Repairing, or Expanding Premises

More workers are killed on the job in Texas than any other state. Many more suffer very serious injuries. A large number of these workplace injuries and deaths involve contractor and subcontractor employees brought on to the premises to do new construction, repairs, or expansion of refineries and chemical plants in our part of the country. Each one of these workers is an invitee of the premise occupier or owner, but the law for them is not the same as for other invitees because owners and occupiers in these situations have very special protections that you and I do not have in our homes and businesses. In efforts to greatly reduce the possibility of these workers being able to make successful claims for their on-job injuries, Texas laws have been changed over the last decade or so to leave fewer remedies for those workers suffering injuries working on someone else’s property. One of these new legal devices was created by amendments in the Texas Labor Code that allow owners to require all the contractors and subcontractors to agree to be covered by the same worker’s compensation insurance policy and sign an agreement that says the owner is the general contractor for the construction and that all employees of all other contractors and subcontractors will be covered by the same worker’s compensation policy. If the owner of the property is going to be responsible for placing and controlling the worker’s compensation insurance, the plan is known as an Owner Controlled Insurance Plan (OCIP). If a contractor will control the worker’s compensation coverage, the plan is known as a Contractor Controlled Insurance Plan (CCIP). If all of the many detailed requirements are met, a proper OCIP or CCIP will absolutely bar any claims by workers on the job against the premise occupier for either a premises liability claim or even a dangerous or negligent activity claim. Any time a premise owner or occupier claims it cannot be sued because of an OCIP or CCIP plan, the plan must be carefully examined by a qualified attorney familiar with the requirements for these plans to see if the alleged plan properly qualifies to destroy this fundamental worker’s right.
Chapter 95 of the Texas Civil Practice and Remedies Code provides yet another barrier for injured workers in Texas by setting harsh minimum requirements for employees of a contractor or subcontractor performing construction work for an occupier or owner. For such workers to make a premises liability claim against the occupier, the worker must prove:
  • The claim is for damages caused by some type of negligence
  • The injured worker is a contractor, subcontractor, or employee of a contractor or subcontractor hired to “construct, repair, renovate, or modify an improvement to real property
  • The claim is against a property owner, contractor, or subcontractor
  • The property owner exercised or retained some control over the manner in which the work was performed other than the right to order work started or stopped, to inspect progress, or to receive reports
  • The property owner had actual knowledge of the danger or condition resulting in the worker’s injuries
  • The property owner never adequately warned the injured worker of the danger or condition
  • The injury arose from the condition of, use of, or work being performed on the improvement to the real property the injured worker was hired to construct, repair, renovate, or modify
Very few injury claims will meet all of these requirements. Again, attorney expertise and experience is necessary to determine if a viable claim exists under Chapter 95.

Premise Liability Overview

Just because someone gets hurt in someone else’s business or home or workplace does not make the owner or occupier legally responsible. In fact, the law on premise liability is very complex and was not developed to provide remedies for the injury victims. Instead, the law is written to favor property owners and occupiers. Victims of injury or death from an unreasonably dangerous condition on a premises need the best personal injury attorneys to balance the scales of justice in their favor.

Seek Experienced Legal Help from Texas Premises Liability Lawyers

Bush Lewis attorneys have been fighting the battles of premise liability law for our clients for over 35 years. Call Bush Lewis today at 409-835-3521, or contact us online for a free consultation. Through our Beaumont, Texas offices, we serve clients in Southeast Texas, including Jefferson, Orange, Hardin, Newton, and Jasper counties.

Know This Before An Accident

No one plans to have an accident and no one expects to sustain a serious injury or lose a loved one to death from someone else's actions or mistake. It helps to at least have heard what experienced lawyers say you can do to ease the situation. At Bush Lewis, we think there are some helpful guidelines that we recommend to you. Our lawyers suggest: Learn more.