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Prior Knowledge of a Dangerous Property Condition in Texas

rocks on drivewayIn a recent Texas appellate decision, an appellate court considered a premises liability lawsuit in which a former tenant challenged a summary judgment dismissal. The case arose when the plaintiff leased a house in Texas from the defendants under a written lease. He claimed that in January 2013, he tripped and fell on the driveway because of broken and loose rocks in the driveway. He alleged he broke his back due to the fall.

He sued the property owners on the basis of negligence and asked for punitive damages based on gross negligence. The property owners filed for summary judgment, arguing that they didn’t owe a duty to their lessee unless they had written notice that a repair was needed, as required by the lease, and they didn’t owe a duty to warn the plaintiff because the disrepair in the driveway was open and obvious, or else the plaintiff knew about its condition for at least six months before his fall. Later, in a supplemental motion, they also claimed that the driveway wasn’t in the property description in their deed to the property, there was no evidence they controlled the driveway, and the plaintiff had failed to put forth evidence that the driveway presented an unreasonable risk of injury.

The plaintiff responded, stating that he knew of the defect but didn’t know of the specific stone that came loose at the end of the driveway. He also filed an untimely amended response. Summary judgment was granted.

The plaintiff appealed. On appeal, he argued that the property owners were landlords who owed a duty to reasonably keep up the property in order not to injure him, and they breached this duty. He didn’t expressly state a premises liability cause of action, but this was basically a premises liability theory. The plaintiff also based his claim on the defendants’ failure to take steps to make the property safe.

The defendants presented evidence that showed the plaintiff knew about the breaks in the driveway and kept hurting himself in the same place six months prior to breaking his back. He claimed he’d fractured two bones in the same spot previously and had advised the defendants they needed to come and look at the concrete.

The appellate court explained that in a premises liability case in Texas, the landowner owes a duty to make property safe or warn against any concealed risks of which the landowner should reasonably be aware, but an invited person isn’t. Usually, the landowner doesn’t need to both repair and provide warnings. It is sufficient to provide an adequate warning. The landowner is usually in a better position than the person invited to know of hidden hazards onsite, but if the dangerous condition is open and obvious, this isn’t true.

There are two exceptions whereby an invitee’s knowledge of the risk doesn’t take away the landowner’s duty to make the property reasonably safe. The first is when a dangerous condition is a result of foreseeable criminal activity by third parties. This didn’t apply to the current case. The second exception is if an invitee needs to use unreasonably dangerous property and, in spite of his awareness, can’t take steps that adequately reduce the danger. The plaintiff claimed that his case fell within this latter exception. He claimed he had to use this area due to his lease, which required him to keep up the yard.

The appellate court found that he could’ve kept up the yard and otherwise avoided this area of the driveway. It held the defendant had no duty to warn or repair the driveway because the plaintiff knew of the condition of the driveway. It affirmed the lower court’s judgment.

If you are injured on somebody else’s property, you should consult a Texas attorney with experience in premises liability cases to seek a favorable outcome. Consult the experienced San Antonio attorneys at Carabin & Shaw for more information at 1-800-862-1260.

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