A recent case from the Houston Court of Appeals reminds us that, at least in Texas, if you are renting a house and you walk over broken concrete for months, you cannot sue your landlord if you fall on the broken concrete. See Phillips v. Abraham, 517 S.W.3d 355 (Tex.Civ.App. – Houston [14th Dist.] 2017, no pet.). The broken concrete is going to be deemed “open and obvious” at that point and, if no exceptions apply, you will not recover a judgment against your landlord. The case is a victory for common sense.
Facts of Case
During 2012 and 2013, the plaintiff leased a house in Friendswood from the owners and signed a written residential lease. In January 2013, the plaintiff lost his footing and fell while attempting to walk up the driveway which, according to the plaintiff, “was in disrepair with many loose and broken rocks.” As a result of the fall, the plaintiff claims that he broke his back. He sued for negligence and sought exemplary damages based on alleged gross negligence of the landlord.
The plaintiff testified at his deposition that:
- The concrete in the area where he fell kept “breaking and breaking and breaking every time you step[ped] on it.”
- Plaintiff started noticing breaks in the concrete in the driveway six months before he fell.
- Plaintiff broke his foot in the “same place” on the driveway two months before he fell.
- Plaintiff told the landlord that he “needed to come and look at the concrete,” that plaintiff had broken his foot, and that the concrete needed to be fixed.
The landlord filed for summary judgment, which was granted based on the condition being open and obvious. The Texas Court of Appeals affirmed.
The Property Owner’s Legal Obligations
In general, land and property owners in Texas have a duty to exercise reasonable care to make the land, property, or premises safe for invitees. An “invitee” is “one who enters the property of another with the owner’s knowledge and for the mutual benefit of both.” Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1 (Tex. 1996). In this context, the plaintiff tenant is considered an “invitee.” Other examples would include an employee, a mail-carrier, a retail store customer, etc.
A Texas landowner can satisfy the duty to exercise “reasonable care” to keep the land safe by eliminating the dangerous condition or by providing an adequate warning of the danger. Texas law imposes this duty on a landowner because a landowner is in a better position than the invitee to know of hidden hazards on the land.
However, there is no duty at all where the condition is open and obvious. The rationale is twofold:
- With something that is open and obvious, “the landowner is in no better position to discover it than the invitee” and
- When an invitee sees the “dangerous condition,” knows of it and is aware of it, then generally the “dangerous condition” is no longer “unreasonably dangerous” and/or no longer poses an “unreasonable risk” because the law presumes that the invitee will take reasonable measures to protect against known risks, including not entering onto the landowner’s premises where a dangerous condition exists
There are two exceptions to the open and obvious doctrine – when the dangerous condition is the result of criminal activity and when the invitee has no choice but to cross over the dangerous condition and ” … the invitee is incapable of taking precautions that will adequately reduce the risk.”
Results of Case
In the Phillips case, the broken concrete was deemed open and obvious. Without question, the tenant knew about the broken concrete on the driveway, having already broken his foot. The “criminal activity” exception did not apply, since there was no evidence of that. The necessary-use exception also did not apply since, as the Court noted, “[w]alking over this area [of the driveway] was not necessary to access the house or to park a vehicle.” Judgment for the landlord was affirmed by the Court of Appeals.