Texas Premises Liability Issues? Fort Worth, Texas Outside General Counsel Can Help

For Fort Worth small business owners, managing the complexities of Texas premises liability law is a critical, yet often daunting, aspect of risk management and legal defense. These cases center on a property owner's duty to those who enter their premises, a duty that varies significantly based on the legal status of the visitor—whether an invitee, licensee, or trespasser. An outside general counsel provides a vital layer of defense by proactively navigating these nuances, ensuring businesses are aware of their obligations to inspect the premises and warn of concealed hazards they know or should have known about. This advisory role helps small businesses implement robust safety protocols and documentation practices, which are essential for building a strong defense should an injury claim arise.

In a Texas premises-liability case, a landowner is liable to employees of an independent contractor only for claims arising from a concealed, pre-existing defect rather than from the contractor’s work. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex. 2008). “With respect to existing defects, an owner or occupier has a duty to inspect the premises and warn of concealed hazards the owner knows or should have known about.” Id. (quoting Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004)).

“Premises Liability” refers to accidents that occur due to the negligent maintenance, operation or design of a property owned by someone other than the accident victim. This includes claims against a landlord on behalf of a tenant or against the landowner for injuries suffered by an individual who was lawfully on the property.

The Texas Legislature has waived sovereign immunity for personal injury claims arising from a premise defect. Tex. Civ. Prac. & Rem. Code § 101.021. Former section 101.022 of the Texas Civil Practices and Remedies Code[2] applied different duties of care to a suit depending on whether the condition was a premise defect or a special defect:

(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.

(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets or to the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning devices as is required by Section 101.060.

Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3242, 3303 (amended 2005) (current version at Tex. Civ.Prac. & Rem. Code § 101.022) (hereinafter § 101.022). If a claim involves a premise defect under section (a), a licensee standard applies. Tex. Civ Prac. & Rem. Code § 101.022(a); see also State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). Under a licensee standard, a plaintiff must prove the governmental unit had actual knowledge of a condition that created an unreasonable risk of harm, and also that the licensee did not have actual knowledge of that same condition. Payne, 838 S.W.2d at 237. But if a claim involves a special defect under section (b), a more lenient invitee standard applies. Tex. Civ. Prac. & Rem. Code § 101.022(b). Under an invitee standard, the plaintiff need only prove that the governmental unit should have known of a condition that created an unreasonable risk of harm. Payne, 838 S.W.2d at 237; see also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam) (“Absent a finding that the State knew of the dangerous condition prior to the accident, it is not liable to plaintiffs unless the condition was a special defect.”). Whether a condition is a premise defect or special defect is a question of law, which we review de novo. Payne, 838 S.W.2d at 238. The Civil Practices and Remedies Code does not define exactly what a “special defect” is, but does give guidance by likening special defects to “excavations or obstructions.” See Tex. Civ. Prac. & Rem. Code § 101.022(b).

The term “Premises Liability” encompasses a wide range of events that cause injury and may give rise to liability. For example, a slip and fall due to a wet or defective floor may be actionable against a landowner or a landlord. Other examples include claims for inadequate security, lighting or the failure to properly maintain railings, porches or stairs. These are examples of premises liability actions. Each set of facts giving rise to an injury on a premises must be individually evaluated.

In Texas, a premises owner does not guarantee the safety of its customers or employees. Consequently, an employee is not automatically entitled to recover for his injuries merely because the injury occurred on his employer’s property. To prevail on a premises-liability claim, a Plaintiff must prove four essential elements:

(1) Actual or constructive knowledge of a condition on the premises by the owner or occupier;

(2) That the condition posed an unreasonable risk of harm;

(3) That the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and

(4) That the owner or occupier’s failure to use such care proximately caused the plaintiff’s injury.

These four elements are typically referred to as: (1) notice; (2) unreasonably dangerous condition; (3) failure to exercise ordinary care; and (4) proximate cause.

A primary defense issue in Texas premises liability is the concept of "no duty" for open and obvious dangers or conditions the injured party already knew about. Texas courts have affirmed that employers generally do not have a duty to warn or protect employees from unreasonably dangerous premises conditions that are open, obvious, or known to the employee. For small business employers in Fort Worth who are non-subscribers to the Texas Workers' Compensation Act, this principle is particularly welcome, as it provides a crucial legal defense against employee premises liability claims, challenging the very existence of a duty of care as a matter of law. An experienced outside counsel is instrumental in gathering evidence and challenging the plaintiff's assertions to establish that the danger was indeed open and apparent to a reasonable person, thereby potentially negating the business's liability from the outset.

Having dedicated Fort Worth outside general counsel is a strategic asset for small business employers facing premises liability challenges. This legal support allows for the development of a comprehensive defense strategy grounded in Texas law, balancing factors such as risk, foreseeability, and the consequences of placing a burden on the defendant. Beyond just litigation defense, an outside attorney can help a business conduct thorough investigations into incidents, identify inconsistencies in claims, and work toward favorable resolutions. In essence, the general counsel acts as an essential shield, providing expert legal representation that allows the small business owner to focus on running their operations while knowing their legal interests are robustly defended against complex and costly premises liability lawsuits.

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