Archives for posts with tag: negligence

Premises Liability

Of prime importance to property owners and occupiers (tenants) is liability for damages to persons or property which occur on the owner’s or occupier’s property. Ownership or control of the premises upon which the damages occurred by itself will not create liability for the owner or occupier.  There also must exist a duty from the owner or occupier to the damaged person or property.  Also, control may be established through a showing of actual control or a right to control the area in which the damage occurred.  The control must relate to the activity that caused the injury complained of before a duty will exist.  Areas beyond the limits of an owner’s or occupier’s control will not establish such a duty.

Chapter 95 of the Texas Civil Practices & Remedies Code governs damage claims accruing on or after September 1, 1996, arising from negligent construction activities. A thorough discussion of that Chapter is well beyond the scope of this article.

In addition to control, an owner’s or occupier’s duty to a party will be determined by the legal status of that party. A party may be considered a trespasser, licensee or invitee.  A “trespasser” is someone who has no legal right to be on the property.  A “licensee” is a person who is present on the property with the permission of the owner or occupier, but for whom the owner or occupier has no business relationship.  A licensee is present on the property for his or her benefit only, and not that of the owner or occupier.  On the other hand, an “invitee” has a present business relationship with the owner or occupier and is present on the property for the mutual benefit of both parties.  A licensee or invitee may become a trespasser if his or her occupancy exceeds the scope of the rights granted to them.

Typically, owners and occupiers owe trespassers no duties other than to not injure them willfully, wantonly or through gross negligence. This has been the common law rule in Texas for many years, and has been codified in Section 75.007(b) of the Texas Civil Practices & Remedies Code.  For licensees, owners and occupiers owe the same duties that are owed to trespassers, and the additional duty to use ordinary care to make reasonably safe and adequately warn of dangerous conditions of which the owner or occupier is aware, but the licensee is not.  Actual instead of constructive knowledge of the dangerous condition by the owner or occupier is required.  Owners and occupiers are additionally responsible to invitees for their active negligence.  With respect to agricultural or recreational activities, Chapter 75 of the Texas Civil Practices & Remedies Code provides special protections to land owners engaged in such activities.

Texas courts have divided invitees into 2 categories: “public invitees” and “business visitors”. Public invitees are people who enter premises which are generally open to the public, such as governmental facilities and parks.  A business or merchant impliedly is “inviting” the public into its place of business.  Contractors, employees, and public servants are distinct categories of invitees.  By way of the invitation to the public, all entrants into those premises expect to be in a safe environment.  As such, owners and occupiers owe invitees the duty to exercise ordinary care to keep the premises reasonably safe, including the duty to inspect and discover latent defects, make safe any defects, or warn the invitees of the same.  For invitees, an owner or occupier is charged with any actual or constructive knowledge of the condition of the premises (i.e., conditions that the owner or occupier should have known of regardless of actual knowledge), and has a duty to make sure their invitees are reasonably safe from any such dangerous conditions or adequately warn the invitee of such conditions.

Even where a duty exists on an owner or occupier to provide a safe premises, liability will only occur where the breach of such duty proximately causes damages to the third party. Proximate cause is made up of two separate elements.  The first being “cause in fact”, which means that the negligent act or omission was a substantial reason that the injury occurred and without which, the injury would not have occurred.  The second element is “foreseeability”, which means that an ordinary and reasonably prudent person (which my first year contract law professor described as “Ward Cleaver”—Baby Boomers and Gen-Xers will understand) should have anticipated that such act or omission would result in such damage or injury.  These rules are general in nature, and several special situations have modified versions of these rules.  For example, premises liability relating to children, disabled persons, elevators and escalators, sporting events, and animals, each have modified rules relating to liability to the premises owner or occupier.

Under certain circumstances, an owner or occupier may be responsible for acts of third parties. The same rules as above apply for a third party act as for the owner’s or occupier’s direct negligence.  There must be a duty, a breach of that duty, and such breach proximately caused the injured party’s damages.  Most premises liability situations involving third parties are determined by proximate cause.  However, a third party’s act or omission may be a superseding act, breaking the chain of causation between the premises owner’s or occupier’s conduct.  A “superseding act” is an outside force that intervenes in a chain of events to cause an outcome that otherwise would not have occurred.  A superseding act can relieve an owner or occupier from liability relating to that act.

The criminal act of a third party is a common type of superseding act which may prevent the owner or occupier from becoming liable for an injury occurring on the premises. However, there are situations where an owner or occupier has been held responsible even where the criminal acts of a third party were involved.  In situations where such conduct is foreseeable and unreasonable, courts have imposed liability on the premises owner or occupier.

Employers have a duty to provide a safe workplace for its employees. Owners and occupiers have a duty to follow laws and ordinances which relate to safety of the premises, and the failure to follow such laws and ordinances may be considered to be per-se negligence.  Where an area or place has had so much criminal activity that has resulted in damage or injury to persons in and around such area, a premises owner or occupier may have a duty to protect its invitees against such dangers.  Note, however, that employers typically do not have a duty to warn an employee of conditions that are commonly known or already appreciated by the employee.  Of course, such duties will necessarily be affected by whether Worker’s Compensation insurance exists or not.

The principles underlying premises liability are in most instances purely fact driven. The analysis can be complicated, particularly when there may be more than one cause of the damage or injury or a superseding act.  Owners and occupiers of real property should always take advantage of liability insurance which will cover any negligence found against such owner or occupier, as well as provide the owner or occupier with a defense (attorney) against the prosecution of such claims.

Scott Alagood is board certified in Commercial and Residential Real Estate Law by the Texas Board of Legal Specialization and can be reached at or



Most people who are involved in an automobile accident can easily blame the other driver as being responsible for the collision. What many of these people don’t realize is that the other driver will try to blame them for the wreck, either in whole or in part–claiming what is commonly known as contributory negligence. When this happens, a jury will be asked to sort out who they believe was at fault, either in whole or in part, and then, if both parties are believed to be at fault, the jury will then assign a percentage of responsibility to each driver. For example, let’s say that the jury found the defendant was negligent because he pulled in front of you without warning while trying to get into a restaurant parking lot; but the jury also found you liable because you were trying to find a radio station to listen to which prevented you from acting sooner to avoid the wreck. In this scenario, the jury would then be asked to assign a percentage of responsibility to each of you. Why is this important? Because the percentage of liability that the jury assigns to you will reduce any damages awarded to you by that percentage (if 50% or less); or completely bar your ability to recover damages (if the jury finds you 51% or more responsible for the wreck). For example, if a jury found the defendant driver 60% responsible and you 40% responsible, and awarded $100.00 in damages, then your $100.00 recovery would be reduced by 40%, meaning you would only get $60. Conversely, if the jury found you 60% responsible and the defendant driver 40% responsible, you would not recover anything because the jury found you 51% or more responsible for the wreck. All of this can get rather confusing so the bottom line is do not put off consulting with a qualified personal injury trial attorney to assist you in determining if you have a claim and when a lawsuit must be filed to preserve that claim. Therefore, please feel free to contact me at 940.891.0003 to set up a cost-free consultation to discuss your case. *Please note that this Blog does not address cases involving multiple defendants. This is a separate beast which is better discussed in a consultation. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood Cartwright Burke PC.

In my last two blogs, I discussed the standard for simple negligence and negligence per se. What happens if you are injured as a passenger of a common carrier, like a taxi, train, or bus? What is the negligence standard for these common carriers? In such situations, the standard of negligence is elevated from ordinary care (i.e., simple negligence) to a high degree of care. In other words, negligence will mean failure to use a high degree of care, that is, failing to do that which a very cautious, competent, and prudent person would have done under the same or similar circumstances or doing that which a very cautious, competent, and prudent person would not have done under the same or similar circumstances. If you are injured while a passenger in a taxi, train or bus, you can contact me at 940.891.0003 to set up a cost-free consultation to discuss your case. I look forward to visiting with you next time.
Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood&Cartwright, P.C.

There is good news for personal injury victims in the state of Texas.  Previously, if a person injured by another person’s negligence or other wrongful conduct obtained medical treatment which their medical insurance company paid for, the insurance company could insert, and then enforce, a provision in the injured plaintiff’s medical policy which permitted the carrier to be repaid all of the money that was paid by the company as a result of the third party’s negligence or other wrongful conduct, even if that meant that the insurance company received all of the money being paid to the plaintiff.  The resulting tragedy was quickly exposed when persons suffering catastrophic injuries wound up receiving nothing, with everything instead going to the medical insurance company.  In HB 1869, known as the Subrogation Reform Bill, and begin codified in Chapter 140 of the Texas Civil Practice & Remedies Code, the Texas Legislature recently overturned the Texas Supreme Court’s decision in Fortis v. Cantu, and now caps the amount of money that the medical insurance company can be repaid in instances where the injured person is not able to realize a complete and adequate recovery for an injury sustained by the negligence or other wrongful conduct of another person.  The amounts differ depending on the circumstances; however, if you are represented by an attorney, then, effective January 1, 2014, the insurance company can only take up to 1/3 of the total recovery to satisfy any amounts that it paid out.  If the injured party is not represented by an attorney, the amount goes up to one-half.  (Unfortunately, however, HB 1869 doe snot apply to Medicare, Medicaid, CHIPS, Worker’s Compensation, and self-funded ERISA plans).  If you have suffered a personal injury in the Metroplex, including Denton County, Dallas County, or Tarrant County, as a  result of tortious conduct, including negligence, products liability, automobile accident, 18 wheeler accident, medical malpractice, or other wrongful conduct, then please contact me so we can further discuss your legal rights during a free consultation.

Brian T. Cartwright is Board Certified in Personal Injury Trial Law and can be reached at and