Fall 2005 Premises Liability Update

By Amos Pettis

Western Investments, Inc. v. Urena, 162 S.W.3d 547 (Tex. 2005).

No evidence that any negligence of apartment owner caused assault by another tenant.

Plaintiff and her mentally retarded son lived in Defendant's apartment complex.  Plaintiff left her son in the care of her aunt who resided in the same complex, who in turn left the boy unsupervised.  Another resident of the apartment complex then sexually assaulted the boy.  Plaintiff sued the apartment owners contending that it proximately caused the boy's injuries by failing to employ a security company to patrol the complex, not providing appropriate security personnel and security measures, failing to obtain police reports of calls related to criminal activity in the area, and by failing to conduct a background check on all tenants.  The Texas Supreme Court reversed a judgment in favor of the Plaintiff and held that the Defendant could not be liable under these facts.  Even assuming the Defendant owed a duty to do these tasks, the Plaintiff presented no evidence that they would have prevented the assault in question.

McClure v Denham 162 S.W.3d 346 (Tex.App.--Fort Worth 2005, no pet.).

Premises owner owed no duty to this independent contractor’s injured employee.

The Defendant owned property and was acting as his own general contractor in constructing an office building in Lewisville.  Plaintiff was an employee of an independent contractor hired by the owner.  Plaintiff was severely injured when he was knocked off a joist thirty feet in the air by an overhead crane, and he sued the owner for negligent safety measures and procedures and for negligently hiring the contractor for whom he worked.  The trial court granted summary judgment to the Defendant, and the Court of Appeals affirmed.  The Court held that the Plaintiff failed to provide any evidence that the owner controlled the means, methods, or details of the independent contractor’s work such that a duty of care arose to ensure that the contractor’s employees performed their work in a safe manner.  Additionally, Plaintiff, as an employee of an independent contractor, could not bring a negligent hiring claim against the premises owner who hired the independent contractor.

Chi Energy, Inc. v Urias, 156 S.W.3d 873 (Tex.App.--El Paso 2005, pet. filed).

Property owner did not retain or exercise control over injured subcontractors.

Plaintiffs sued Defendant aver the death of their family members in an explosion during construction of improvements to an oil well site leased by Defendant.  The Court of Appeals reversed a verdict and judgment in favor of the Plaintiffs, holding that there was no evidence that the Defendant retained or exercised any control over the operative details of the deceaseds' work.  Additionally, there was no evidence that the Defendant had actual knowledge of any danger to give rise to a duty to warn of that danger.  The evidence was the Defendant had virtually no contact with the independent contractors.

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