Texas Premises Liability: A Warning May Not Be Enough

In 2010, the Texas Supreme Court delivered its opinion in Del Lago v. Smith, 53 Tex. Sup. Ct. J. 514. Smith was a patron of the Grandstand Bar which is part of the Del Lago resort on Lake Conroe, Texas. He was a member of a fraternity reunion that got into a brawl with a wedding party. The brawl erupted after ninety minutes of drunken threats between the two groups. The bar employees witnessed the hostility, did not call security or the police, did not throw anyone out, but did keep pouring drinks. Smith witnessed all of it but did not leave. When the fight started, Smith joined the fray and was eventually run into a wall by another man, and his skull was fractured. Once the fight started, the bartender called security, who arrived within three minutes and broke up the fight. The jury found the bar 51% liable and Smith 49% liable and awarded almost a million and a half dollars in damages.

The most significant holding of the case can be found in this paragraph:

“We hold that Del Lago had a duty to protect Smith because Del Lago had actual and direct knowledge that a violent brawl was imminent between drunk, belligerent patrons and had ample time and means to defuse the situation. Del Lago’s duty arose not because of prior similar criminal conduct but because it was aware of an unreasonable risk of harm at the bar that very night. When a landowner “has actual or constructive knowledge of any condition on the premises that poses an unreasonable risk of harm to invitees, he has a duty to take whatever action is reasonably prudent” to reduce or eliminate that risk.

The ruling drew two very lengthy dissents. They point out that the rule in Texas has always been that a possessor of land discharges his duty to protect an entrant, including an invitee, from a condition that poses an unreasonable risk of harm by giving an adequate warning. Yet the court now holds that “in some circumstances, no warning can be adequate.” The court, however, did not explain when and how such situations arise so that a landowner can take measures to reduce his risk. It also did not explain why no warning could have been adequate in this case (where the danger was obvious and Smith was a willing brawler who could have avoided his injury by simply leaving the bar at any time after the trouble began to brew.

In his dissent, Justice Wainwright examined Palsgraf v. Long Island Railroad and Texas’ views about whether we follow an ordinary prudence rule or whether we impose on all actors a duty to the whole world and he concluded that Texas had always followed the lead of the majority opinion in Palsgraf.

The majority gave short shrift to one of the key problems with this case. While the case was presented to the jury on a premises liability theory (defect in the physical premises itself), one of the major factors in holding the bar liable was negligent activity (serving drinks to belligerent people, omitting to call the police to break up the fracas). Serving drinks in a bar cannot be a premises defect. That is what bars do. However, serving them to drunk, belligerent customers can be negligent, as in a dram shop case. This is a key distinction because obvious dangers and warnings are often not sufficient in negligent activity cases – it is not enough to warn someone that you are spraying the floor with oil in a grocery store as the person walks by and slips (this is the seminal fact pattern in a negligent activity case). So instead, the majority has created an exception to premises liability law when it could have simply sent the case back to the trial court to be tried and presented to the jury under the appropriate tort – the negligent activity of serving drinks to drunk, belligerent customers and not calling the police.

How will this ruling affect toxic tort claims by contractor employees? Is it no longer enough to warn of the risk and to advise as to how it might be avoided? And if a hazard, such as an unguarded loading dock, is open and obvious is the premises owner now obligated to actively prevent the contractor from falling off? And what exactly is something “more than a warning” that a prudent premises owner must now undertake to discharge this new duty?

Premises liability law, which had after many long years finally become understandable, predictable, and workable has suddenly become very uncertain.

Texas Premises Liability Defense Attorney

When someone slips and falls, when a banister breaks and causes injury, when a toxic substance leaks into the atmosphere in or around a building, property owners and managers can face claims and lawsuits seeking damages.

Premises liability defense attorneys have defended many types of cases from many different kinds of clients. They defend property owners (including landlords and corporations), companies that manage the property, and governmental entities that own property. Premises liability cases cover many different circumstances:

  • A commercial building’s common areas may have uneven flooring or a broken stairway banister.
  • A utility may fail to contain radiation within certain parts of the facility.
  • A balcony may collapse injuring residents and visitors in an apartment building.
  • The steps to a public building may be unsafe because of ice that was not removed.
  • Sick building syndrome caused by toxic substances may harm residents or workers.

In all those cases, the allegations need to be investigated, liability needs to be established, and the case needs to be evaluated. Is the hazard that injured a tenant-landlord responsibility or tenant responsibility? Was the building’s owner made aware of the danger? Premises liability defense law firm has extensive experience in limiting clients’ financial exposure in premises liability lawsuits.

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