In Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 775 (Tex. 2010), the plaintiff believed claims of both negligent activity and premises defect applied to his case.
In that case, the defendant objected to the submission of a negligent activity theory. Id. The trial court agreed and submitted only a question on premises defect. Id.
On appeal, the defendant complained the question of negligent activity should indeed have been submitted to the jury. Id.
The Texas Supreme Court ruled the defendant "cannot now obtain a reversal on grounds that the jury should have decided the facts under a theory of liability that the defendant itself persuaded the trial court not to submit to the jury." Id.
In that case, the evidence showed that Del Lago both staffed its bar and provided its own security.
Del Lago's staff continued to serve drinks to drunk patrons during "ninety minutes of yelling, threatening, cursing, and shoving" between them without calling security until after the fight started.
Del Lago's security employees, in turn, while aware that the bar was crowded, failed to visit it during the entire ninety minutes, although they customarily visited the bar five to eight times a night and had ejected a drunk fraternity member the night before.
The supreme court concluded that the jury could have found that Del Lago bar staffers were fully aware of the events transpiring in the bar and nevertheless unreasonably neglected to notify security or to bring the situation under control and that the bar staffers were not provided the training and information to call security.
The court also concluded that the jury could also have found that Del Lago acted unreasonably in failing to provide a "security presence at closing." Id.