Fall 2004 Premises Liability Update
By Amos Pettis

M. O. Dental Lab v. Rape, __ S.W.3d __, 47 Tex. Sup. Ct. J. 790 (Tex. 2004) (per curiam)

Mud that accumulates naturally is not an unreasonably dangerous condition.

Plaintiff slipped and fell on the pavement while exiting her dental clinic and walking toward her car.  As a result of recent rain, slippery mud had accumulated on the sidewalk leading from the clinic to the parking lot.  The trial court granted summary judgment for the defendant, which was reversed by the court of appeals.  The Texas Supreme Court reversed the appellate court and affirmed the summary judgment, holding that, as a matter of law, ordinary mud or dirt that accumulated naturally on a concrete slap outside a business did not pose an unreasonable risk of harm.

Shell Oil Co. v. Khan, __ S.W.3d __ 47 Tex. Sup. Ct. J. 640 (Tex. 2004)

Owner/lessor of gas station not liable to injured employee of lessee absent control of premises

Plaintiff, who worked for a gas station which operated pursuant to a lease and contract with defendant Shell Oil, was shot and injured by an unknown assailant late at night.  Plaintiff sued Shell Oil asserting various negligent activity theories and a negligent premises claim based on inadequate lighting, security camera, fencing, etc.  The trial court entered summary judgment for Shell which was reversed by the appellate court.  The Texas Supreme Court reversed the appellate court's judgment and rendered judgment that the plaintiff take nothing.  After disposing of the numerous negligent activity issues, the Court held that the plaintiff had presented no evidence that Shell had the right to control the premises condition and that lessors are not liable for pre-existing non-latent defects.

Price Drilling Company v. Zertuche, __ S.W.3d __ 2004WL1335940 (Tex.App.--San Antonio 2004, no pet. h.)

Slip and fall due to muddy conditions is not a negligent activity case

Plaintiff, while working as an independent contractor at a drilling site, slipped and injured himself climbing onto his truck.  Plaintiff claimed the general contractor's negligent activity had created a extremely muddy and slippery condition, and the case was submitted to the jury as a negligent activity case.  The San Antonio Court of Appeals reversed the judgment on the verdict, holding that if the general contractor owed the plaintiff any duty at all, it was as a premises defect cause of action and not general negligence.

Price Constr., Inc., v. Castillo, __ S.W.3d __ 2004WL297987 (Tex.App.--San Antonio 2004, no pet. h.)

Plaintiff failed to prove defendant had actual knowledge of dangerous condition.

A driver was killed in a head-on collision on a section of road under construction by a private company contracting with the Texas Department of Transportation, and the deceased's family filed suit against the construction company (and others) for failing to maintain the traffic control devises in the construction zone.  After a $4 million verdict and judgment for the Plaintiffs, the San Antonio Court of Appeals reversed and rendered judgment in favor of the defendant.  The Court held that there were no evidence of actual knowledge of the dangerous condition as all pre-accident inspections had not indicated any problems.

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