Timberwalk Apartments, Partners, Inc. v. Cain

In Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753, 41 Tex. Sup. Ct. J. 1138 (Tex. 1998) the Texas Supreme Court explains these two concepts. Recovery for a negligent activity requires that a person have been injured by the activity itself, rather than by a condition created by the activity; in contrast, recovery for premises liability depends upon a failure to use ordinary care to reduce or to eliminate an unreasonable risk of harm created by a premises condition about which the owner or occupier [of land] knows or, in the exercise of ordinary care, should know. Id. In Timberwalk, a tenant who had been raped in her apartment sued the landlord and management company for their negligent failure to provide adequate security. 972 S.W.2d at 751. The tenant asserted that the landlord's failure to provide adequate security measures created an unreasonable risk of harm about which the landlord knew or should have known, but failed to correct. Id. at 753. The Timberwalk court held that "a complaint that a landowner failed to provide adequate security against criminal conduct is ordinarily a premises-liability claim," and therefore, the trial court had properly refused a jury charge under a negligent-activity theory. Id.