Premises Liability: Do Open and Obvious Naturally Occurring Conditions Pose an Unreasonable Risk of Harm?

Introduction: Premises Liability

In Texas, a landlord can be held liable on a premise liability claim for an invitee’s injuries.[1]  An invitee is one who enters on another's land with the owner’s knowledge and for the mutual benefit of both.[2]  In order to establish premises liability, an invitee must show (1) the landlord’s actual or constructive knowledge of a condition on the premises by the landlord; (2) the condition posed an unreasonable risk of harm; (3) the landlord did not exercise reasonable care to reduce or eliminate the risk; and (4) the landlord’s failure to use such care proximately caused the plaintiff's injuries.[3]  A landlord does not have a duty to warn or protect an invitee against conditions that are naturally occurring and open and obvious.[4]

Landlords Duty

For property under the landlord’s control, there is a duty to exercise reasonable care to make the premises safe for invitees.[5]  However, Texas courts have recognized a landlord’s duty to invitees is not absolute.[6]

A landlord “is not an insurer of [a] visitor's safety.”[7]  A landlord has “no duty” to take safety measures beyond what is expected of an ordinary, reasonable landlord.[8]

Open and Obvious Naturally Occurring Conditions

“Texas courts have consistently held that, as a matter of law, naturally occurring conditions that are open and obvious do not create an unreasonable risk of harm for purposes of premises liability.”[9] In Johnson Cnty. Sheriff's Posse, Inc. v. Endsley, the court held, “ordinary mud that accumulates naturally without the assistance or involvement of unnatural contact is, in its normal circumstances and therefore, is not a condition posing an unreasonable risk of harm.”[10] Open and obvious conditions are not considered an unreasonable risk because the law presumes invitees will take reasonable measures to protect themselves against known risks.[11]  “Most invitees in Texas will encounter natural conditions involving mud regularly, and accidents involving naturally accumulating mud and dirt are bound to happen, regardless of the precautions taken by landowners.”[12] The rationale behind this position is that invitees are just as aware as landlords of the existence of visible, naturally accumulating conditions and will often be in a better position to take immediate precautions against injury.[13]

Exceptions to the Rule

In premises liability claims, there are two common exceptions to the open and obvious rule. First, a landowner owes an invitee a duty to warn of any foreseeable criminal activity of third parties.[14] The second exception may arise when the invitee must use the unreasonably dangerous premises, and despite the invitee's awareness of the dangers, the invitee is incapable of taking precautions that will adequately reduce the risk.[15] In cases involving these exceptions, courts have held the obviousness of the danger, and the invitee's knowledge of it, may be relevant to a landlord’s proportionate responsibility; but they do not relieve the landlord of its duty to make the premises reasonably safe.[16]

Conclusion

Under Texas law, a landlord generally has no duty to warn invitees of dangerous conditions on the leased premises that are naturally occurring and open and obvious. They do have a duty to exercise reasonable care to make the premises safe for invitees. However, where the invitee is in a better position to assess the risk and take precautions against it, the landlord is not liable for dangerous conditions.


[1] TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764 (Tex. 2009).

[2] Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975).

[3] Wal-Mart Stores, Inc. v. Boswell, No. 08-00-00318-CV, 2001 WL 1295389, at *2 (Tex. App. Oct. 25, 2001).

[4] Scott & White Mem'l Hosp. v. Fair, 310 S.W.3d 411, 415 (Tex. 2010) (Holding that frozen sidewalks are naturally occurring and therefore does not pose an unreasonable risk).

[5] Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 204 (Tex. 2015).

[6] Id.

[7] Austin, L.P., 465 S.W.3d at 203.

[8]Id. at 204.

[9] City of Austin v. Vykoukal, No. 03-16-00261-CV, 2017 WL 2062259, at *4 (Tex. App. May 10, 2017), review denied (Jan. 26, 2018).

[10] Johnson Cnty. Sheriff's Posse, Inc. v. Endsley, 926 SW.2d 284, 287 (Tex.1996).

[11] Austin, L.P., 465 S.W.3d at 203.

[12] M.O. Dental Lab v. Rape, 139 S.W.3d 671, 672 (Tex. 2004).

[13] Id.

[14] Austin, 465 S.W.3d at 204.

[15] Id.

[16] Id.

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