Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Monday, June 27, 2011

Negligent Activity and Premises Defect Claim: Is there a difference?

CAUSE OF ACTION FOR NEGLIGENT ACTIVITY ON PREMISES The Texas Supreme Court has consistently recognized that negligent-activity claims and premises-defect claims involve two independent “theories” of recovery that fall within the scope of negligence. See Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214–15 (Tex. 2008) (distinguishing between “negligent-activity claim” or “theory” and “premises-condition claim” or “theory”); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997) (stating that there are “two types of negligence in failing to keep the premises safe: that arising from an activity on the premises, and that arising from a premises defect”); see also Mayer v. Willowbrook Plaza Ltd. Partnership, 278 S.W.3d 901, 909 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (stating that “[n]egligent activity and premises defect are independent theories of recovery”). Negligent activity claims and premises liabiltiy claims distinguished: Commission vs. omission Although “[t]he lines between negligent activity and premises liability are sometimes unclear,” the court has continued to recognize the distinction between these two claims, explaining that “negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). Activity as opposed to condition as cause of injury Recovery on a negligent-activity claim requires that the plaintiff have been injured by or as a contemporaneous result of the “activity itself” rather than by a “condition” created by the activity. Olivo, 952 S.W.2d at 527; Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). Although an owner or occupier generally does not owe a duty to ensure that an independent contractor performs its work in a safe manner, an owner or occupier “who retains a right to control the contractor’s work may be held liable for negligence in exercising that right” under the negligent-activity theory. Moritz, 257 S.W.3d at 214 (emphasis added). SOURCE: Houston Court of Appeals - 01-09-01089-CV - 6/23/11