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Dangerous Premises Condition or Negligent Activity: Texas Supreme Court issues stern warning to plaintiffs using general-negligence jury instructions to prove premises liability claims

On June 30, 2017, the Texas Supreme Court issued its opinion in United Scaffolding, Inc. v. James Levine, ___ SW3d ___ (Tex.2017) (No. 13-14-00377-CV; 6-30-17) (, overturning a seven-figure judgment for Plaintiff and rendering a take-nothing judgment in Defendant's favor. The Court ruled that Plaintiff's premises liability claim was improperly submitted to the jury under a general-negligence theory of recovery. Therefore, Plaintiff was not entitled to judgment because he failed to request and obtain jury findings on the essential elements of his premises liability claim. See, e.g., Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997) (asserting that submission of the improper theory of recovery required the trial court to render a take-nothing judgment). Rather than remanding the case for a new trial – and giving Plaintiff an opportunity to submit and prove premises liability – the Court rendered judgment for Defendant, reasoning that Plaintiff waived his premises liability claim. This harsh result has wide-reaching strategic implications for litigation involving the restaurant, retail, and hospitality industry.

Many times it is a close question whether a customer's injury is caused by a dangerous premises condition or negligent activity. "At some point, almost every artificial condition can be said to have been created by an activity." See, Keetch v. Kroger, 845 S.W.2d 262, 264 (Tex.1992). Plaintiffs greatly prefer the less-onerous requirements of a general-negligence claim: (1) existence of a legal duty; (2) breach of that legal duty; and (3) injury proximately caused by the breach. See, Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex.2009). In premises-liability cases, the "existence of a legal duty" element is essentially split into four parts: (1) plaintiff was an invitee; (2) defendant exercised control over the premises; (3) a dangerous premises condition existed; and (4) defendant had actual or constructive knowledge of the dangerous condition. See, Corbin v. Safeway Stores, 648 S.W.2d 292, 295-96 (Tex.1983). These additional legal elements generally benefit defendants and increase the chances of obtaining summary judgment. Therefore, plaintiffs often argue that a customer injury was caused by general negligence rather than a dangerous premises condition.

The Court's opinion in United Scaffolding, Inc. shows the massive risk of plaintiffs continuing to pursue this strategy, since plaintiffs could end up waiving a valid premises liability claim while being barred from recovering under a general-negligence theory.