Cases Dealing With ''Special Premises Defect'' Liability In Texas
In City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999), the supreme court held that an eroded place in a sidewalk, approximately three feet by six feet with a depth of three inches did not constitute a special defect.
A city is liable for personal injury caused by a condition or use of tangible personal or real property if the city would, were it a private person, be liable to the claimant according to Texas law. TEX. CIV. PRAC. & REM. CODE ANN. 101.021(2) (Vernon 1997).
In a premises defect case, the city owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises. TEX. CIV. PRAC. & REM. CODE ANN. 101.022(a) (Vernon 1997).
However, the limitation of duty based on payment does not apply to the duty to warn of special defects. TEX. CIV. PRAC. & REM. CODE ANN. 101.022(b) (Vernon 1986).
In the case of a special defect, the city owes the same duty to warn as a private person owes to an invitee. State Dep't of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992).
An invitee is a person who enters onto another's land with the owner's knowledge and for the mutual benefit of both parties. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975); Spencer v. City of Dallas, 819 S.W.2d 612, 617 (Tex. App.-Dallas 1991, no writ).
By contrast, a licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent. Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 163 (Tex. App.-Waco 1995, no writ).
A licensee's presence on the premises is for his own convenience or on business for someone other than the owner. Mellon Mortgage Co. v. Holder, 5 S.W.3d 654 (Tex. 1999) (dissenting op. by J. O'Neill); Rowland v. City of Corpus Christi, 620 S.W.2d 930, 933 (Tex. Civ. App.-Corpus Christi 1981, writ ref'd n.r.e.).
In the absence of a relationship that inures to the mutual benefit of the entrant and the owner, the entrant is a licensee. Weaver v. KFC Mgmt., Inc., 750 S.W.2d 24, 26 (Tex. App.-Dallas 1988, writ denied).
The duty a premises owner owes to a person is dependent upon that person's status as either an invitee or a licensee.
A premises owner owes an invitee the duty to exercise ordinary care to protect the invitee from risks of which the owner is actually aware and those risks of which the owner should be aware after reasonable inspection. Knorpp v. Hale, 981 S.W.2d 469, 471 (Tex. App.-Texarkana 1988, no writ).
A premises owner owes a licensee the duty to not injure him by willful, wanton, or grossly negligent conduct, and that the owner use ordinary care to either warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. Graf v. Harris County, 877 S.W.2d 82, 85 (Tex. App.-Houston [1st Dist.] 1994, writ denied).