Appellate Team Upholds Trial Court Win in Premises Liability Case for Construction Contractor

Background

The Plaintiff, a construction superintendent for a concrete contractor, was working on a building site when he slipped and fell while walking down a dirt-and-rock ramp. The ramp was used primarily by concrete trucks, pickup trucks, and equipment to access a below-groundwork area.

The Plaintiff had worked at the site for six weeks before the accident, and while he had occasionally walked on the ramp, he mainly drove up and down the ramp in the company truck. Halfway down the ramp, Plaintiff slipped on loose dirt and rocks and fell backward. Prior to the accident, the Plaintiff did have hip pain and used a cane at times to walk but he chose not to use it on the job site. He brought negligence and gross-negligence claims against the general contractor and the excavation contractor, which was not on site at the time of the accident but was not done with its work and was responsible for safety under its subcontract.

The excavation contractor was granted a summary judgment by the trial court based on the contractor’s arguments that Plaintiff could not recover on a negligence claim as a matter of law because his claim sounded in premises liability, the alleged premises condition was not unreasonably dangerous and was open and obvious, and there was no evidence of gross negligence. The Plaintiff appealed.

Premises Liability and Negligence Claims are Not Interchangeable

The  threshold issue for the Court of Appeals was whether the Plaintiff’s claim sounded in negligence or premises liability, which are distinct theories of recovery and are not interchangeable. Under Texas law, one injured on another’s property may have either a negligence claim or a premises-liability claim against the property owner. When the injury results from a contemporaneous, negligent activity on the property, ordinary negligence principles apply. But when the injury results from the property’s condition rather than an ongoing activity, premises-liability principles apply. The Texas Supreme Court has consistently treated slip/trip and fall cases as premises-defect causes of action.

The court held that the claim sounded in premises liability because the injury was caused by a condition of the premises rather than any ongoing and affirmative act of negligence by the excavation contractor, which was not at the accident site at the time of the accident. The court also rejected Plaintiff’s argument that the claim could not be for premises liability because the Defendant contended it was not in control of the site when the accident occurred, noting that the contractor had not completed all work required by the subcontract and had an ongoing safety obligation under the contract.

No Duty to Warn of Open and Obvious Danger That Was Also Known to Plaintiff

The Plaintiff also made the alternative argument that if the claim sounded in premises liability the ramp was unreasonably dangerous. However, in premises-liability cases, there is generally no duty to warn of hazards that are open and obvious or known to the invitee. The duty to warn or make safe applies only to dangerous conditions that are “concealed.” The Defendant argued that it had no duty to warn about the dirt ramp or make it safe because the danger of walking on the dirt ramp was objectively open and obvious and Plaintiff was aware of the danger. The court agreed with Defendant, holding that a reasonably prudent person present at the job site in similar circumstances would have perceived the danger of slipping and falling on the dirt ramp and that the danger was known to Plaintiff before his accident because he had walked and driven the ramp and admitted it presented a danger of slipping and falling. Thus, the Court of Appeals affirmed the trial court’s summary judgment.