law-premises-liability | premises liability cases | Tort Claims Act cases | duty to warn | forseeability | actual knowledge
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 “special defect,” but does give guidance by likening special
defects to “excavations or obstructions.” See Tex. Civ. Prac. & Rem. Code § 101.022(b).
RECENT DECISIONS FROM THE TEXAS SUPREME COURT
IN PREMISES LIABILITY CASES
TxDoT v. York, No. 07-0743 (Tex. Dec. 5, 2008)(per curiam)
(TTCA, dangerous road conditions, special defect) (TTCA, Texas Tort Claims Act suit, exception to
sovereign immunity, dangerous road conditions, loose gravel, special defect, premises defect)
Trammell Crow Central Texas, Ltd v. Gutierrez, No. 07-0091 (Tex. Aug. 29, 2008)(Willett)
(premises liability, owner liability for crime on property, forseeability, no duty)
TRAMMELL CROW CENTRAL TEXAS, LTD. v. MARIA GUTIERREZ, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF LUIS GUTIERREZ; AND KAROL FERMAN AS NATURAL
PARENT AND AS NEXT FRIEND OF LUIS ANGEL GUTIERREZ; from Bexar County; 4th district
(04-05-00056-CV, 220 SW3d 33, 12-20-06)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice
Medina, and Justice Green joined.
Chief Justice Jefferson delivered a concurring opinion, in which Justice Hecht, Justice Brister, and Justice
Johnson joined.
G.E. v. Moritz, No. 04-0871 (Tex. June 13, 2008)(Brister) (premises liability, independent contractor, no
duty)
GENERAL ELECTRIC COMPANY v. ARTHUR LEE MORITZ; from Tarrant County; 2nd district (02-03-
00038-CV, ___ SW3d ___, 05-20-04)
2 petitions The Court reverses the court of appeals' judgment and renders judgment.
Justice Scott Brister delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice
Medina, and Justice Willett joined.
Justice Green delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Johnson joined.
(Justice O'Neill not sitting)
City of Dallas v. Reed, No. 07-0469 (Tex. May 16, 2008)(per curiam) (TTCA, premises liability, unsafe
road condition, plea to the jurisdiction)
CITY OF DALLAS v. KENNETH REED; from Dallas County; 5th district (05-06-01652-CV, 222 S.W.3d 903,
04-25-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
UT-PAN AM v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (Texas Tort Claims Act,
TTCA, premises liability, dangerous condition, ostrich defense)
THE UNIVERSITY OF TEXAS-PAN AMERICAN v. TONY AGUILAR AND KAY MARIE AGUILAR; from Hidalgo
County; 13th district (13-06-00450-CV, ___ S.W.3d ___, 03-01-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
City of Corsicana v. Stewart, No. 07-0058 (Tex. Mar. 28, 2008)(per curiam) (TTCA, premises liability,
dangerous condition, drowning)
CITY OF CORSICANA, TEXAS v. PATRICK STEWART SR. AND SENTRIA WHITFIELD, INDIVIDUALLY AND
AS HEIRS TO THE ESTATES OF PATRICK STEWART JR. AND BROOKE STEWART; from Navarro
County; 10th district (10-06- 00044-CV, 211 S.W.3d 844, 12-06-06)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and dismisses the case for want
of jurisdiction.
PETITIONS FOR REVIEW DENIED IN THE FOLLOWING COURT OF APPEALS
CASES
08-0350
STEPHANIE DUKES, ET AL. v. PHILIP JOHNSON/ALAN RITCHIE ARCHITECTS, P.C., ET AL.; from Tarrant
County; 2nd district (02-07-00095-CV, ___ SW3d ___, 03-27-08, pet. denied Jun 2008)(probate, issue of
duty, voluntary undertaking, professional code of ethics, summary judgment, premises liability)
07-0978
SHEILA MIGUEZ v. SHIRLEY BROWN, PERSONAL REPRESENTATIVE OF THE ESTATE OF GENEVIEVE
CIONEK, DECEASED; from Hardin County; 9th district (09-06-00256-CV, ___ SW3d ___, 10-04-07,
pet. denied March 2008)(premises defect judgment reversed, slippery ramp)
heila Miguez sued Genevieve Cionek for an injury Miguez sustained on Cionek's premises. The jury found
in favor of Miguez and awarded her damages. The trial court signed a judgment based on the jury verdict.
Because there is no evidence of an unreasonably dangerous premises condition, we reverse the trial
court's judgment and render judgment that Miguez take nothing from appellant.