Texas Supreme Court: A slip-and-fall in a hospital lobby is not a health-care liability claim. -- Duh! - Comment on Ross v. St. Luke's Episcopal Hospital (May 1, 2015)

Comment on Ross v. St. Luke's Episcopal Hospital (Tex. 2015) 

JURISPRUDENCE, TEXAS STYLE 

The slippery slope on the med-mal front in Texas: 
Wet floor not medical malpractice after all  

Sadly, a truism such as this passes for exciting legal news in Texas, and beyond. It is an illustration of how abstruse the Texas Supreme Court's rulings have become to justify the high court's resolution of most appeals it agrees to hear in a manner to vindicate the interest of a narrow group of favored litigants, which includes big corporations and health care providers. 

The Texas Supreme Court's earlier ruling that a claim against a health care provider need not be a medical malpractice claim to qualify for dismissal as a medical malpractice claim -- thereby effectively granting immunity to doctors and hospitals for all sorts of other claims -- just went too far even for the practicing bar that is accustomed to take its "guidance" from the supreme court; is not allowed to criticize sitting justices; and would be bound by supreme nonsense articulated in precedent-setting opinions in any event, no matter how troubled they may be by it. 

The cognitive dissonance and sheer disbelief engendered by the supreme court's pronouncements in its relentless pursuit of judicial tort reform are, after all, an occupational hazard for litigators; -- something that comes with the territory. Texas trial lawyers' BS detectors have to be periodically re-calibrated to avoid overheating when coping with volleys of opinions from the high court that abrogate rights and remedies, deny ordinary people their day in court, and already put many of their peers out of business on both sides of the docket.   
  
The high court has now "corrected" one such supreme nonsense -- nonsense with grave consequences for the rights of injured people because lower courts have to enforce it -- by restricting the earlier ruling to the effect that a med-mal claim no longer needs to involve medical malpractice by announcing a laundry list of factors that may still justify treating a claim against a hospital or doctor as a med-mal claim, with attendant expert report requirement and other procedural hurdles, when the claimant is not a hospital visitor who slipped and got hurt in the facility's lobby. 

The latter was the fact scenario in the case in which the supremes have now elevated truism to a new genre of jurisprudence, following a string of legal news of the weird, and subdued griping and whispers of dissension on lawfirm blogs and web sites. Not to mention a law review article politely exposing how "Texas" had gone too far in the medical liability realm.  

Read opinion on Google Scholar by clicking on case style below

ROSS V. ST. LUKE'S EPISCOPAL HOSPITAL, Tex: Supreme Court 2015

and the Supreme Court ruling that caused the fracas: 

Texas West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012)

and subsequent citing cases (progeny) 

Meanwhile, the Corpus Christi Court of Appeals had ruled that a hospital visitor injured by a sliding door with lateral guillotine functionality -- a plaintiff who like Ross in the supreme court case also was not a patient -- can't pursue a premises liability claim against the hospital because her personal injury claim is a health care liability claim and she did not file an expert report showing how the limb-chopping door violated the applicable standard of medical care. To add insult to injury, the maternity ward visitor struck by the malfunctioning door was told she will have to pay the hospital's attorney's fees. 

RELATED LEGAL NEWS ITEMS: 

Angela Morris. "Lawmaker: Employment Lawsuit Isn't Health Care Claim." TEXAS LAWYER, May 4, 2015, p. 12. 
John Counsel. "Dallas Judge: Doctor's Cow in Road Is Not Med Mal". TEXAS LAWYER, April 20, 2015, p. 8.
"How Is Hitting a Cow in the Road Med Mal? TEXAS LAWYER, Jan. 29, 2015. 

BLAWG POSTS: 
Bob Kraft. "Medical Malpractice Tort Reform Runs Wild in Texas." Feb. 24, 2015 (blog post). 

INTERIM CITATION: 
Ross v. St. Luke's Episcopal Hospital, 58 Tex. S.Ct. J. 766 (May 1, 2015)

Premises Liability Case - Necessary Elements of Proof (2015)

PREMISES LIABILITY CLAIMS IN TEXAS - ELEMENTS OF PROOF  

In a premises liability case, the plaintiff must establish a duty owed to the plaintiff, breach of the duty, and damages proximately caused by the breach. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010)(citations omitted); Chappell v. Allen, 414 S.W.3d 316, 323 (Tex.App.-El Paso 2013, no pet.)(threshold question in a premises liability case, as with any cause of action based on negligence, is existence of and violation of a duty).

Whether a duty exists is a question of law for the court and turns "on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant." Del Lago Partners, Inc., 307 S.W.3d at 767.

STATUS OF INJURED PARTY IN RELATION TO PRESENCE ON PROPERTY WHERE INJURY OCCURRED IS IMPORTANT

The duty owed by a premises owner or occupier is determined by the status of the complaining party at the time and place of injury. Scott & White Mem'l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010); Del Lago Partners, Inc., 307 S.W.3d at 767 (in premises liability cases, scope of duty turns on the plaintiff's status); Chappell, 414 S.W.3d at 323. The status of the complaining party in a premises liability case may be that of an invitee, a licensee, or a trespasser. See Scott & White Mem'l Hosp., 310 S.W.3d at 412 (invitee); Texas-Louisiana Power Co. v. Webster, 91 S.W.2d 302, 306 (Tex. 1936)(licensee and trespasser); Chappell, 414 S.W.3d at 323 (invitee and licensee); Forester v. El Paso Elec. Co., 329 S.W.3d 832, 837 (Tex.App.-El Paso 2010, no pet.)(invitee and licensee); Wong v. Tenet Hosp. Ltd, 181 S.W.3d 532, 537 (Tex.App.-El Paso 2005, no pet.)(examining status as invitee, licensee, and trespasser); City of El Paso v. Zarate, 917 S.W.2d 326, 330 (Tex.App.-El Paso 1996, no writ)(trespasser and licensee); see also Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 106 (Tex.App.-El Paso 1997, writ denied)(status may change based on person's location on premises).

An invitee is a person who enters the premises of another at the express or implied invitation of the owner or occupier for the parties' mutual benefit. Chappell, 414 S.W.3d at 323; Forester, 329 S.W.3d at 837.

Diez was Alaska's invitee. Generally, a property owner owes an invitee a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known. See Del Lago Partners, Inc., 307 S.W.3d at 767; TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764-65 (Tex. 2009)(premises owners and occupiers owe a duty to keep their premises safe for invitees against known conditions that pose unreasonable risks of harm). The duty is to "take whatever action is reasonably prudent under the circumstances to reduce or to eliminate the unreasonable risk from that condition." TXI Operations, L.P., 278 S.W.3d at 764-65 (quoting Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983)). When such a duty is owed, the premises owner or occupier must either adequately warn of the dangerous condition or make the condition reasonably safe. See TXI Operations, L.P., 278 S.W.3d at 765; State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996)(per curiam).

Thus, as an invitee asserting a premises liability claim, Diez was required to prove: (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (2) the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner/operator's failure to use such care proximately caused the plaintiff's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).

SOURCE: EL PASO COURT OF APPEALS - No. 08-13-00144-CV - 1/7/2015

Difference between premises defect and negligent activity claim in a nutshell

PREMISES LIABILITY: Premises defect vs. negligent activity claim

 

Negligent activity and premises defect are independent theories of recovery. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997). “Generally, to recover on a negligent activity theory, one must have been injured by or as a contemporaneous result of an activity.” Rendleman v. Clarke, 909 S.W.2d 56, 60 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)). However, to recover on a premises defect theory, one must be injured by a condition on the property created by the activity. Keetch, 845 S.W.2d at 264.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00305-CV - April 18, 2012

Tort Claims Act & Recreational Use Statute - Premises Liability Suits against Governmental Defendants

GOVERNMENTAL DEFENDANTS AND IMMUNITY FROM SUIT AND LIABILITY

To what extent and under what circumstances does the Texas Tort Claims Act (TTCA) waive immunity of governmental entities? How does it interact with the Recreational Use Statute?


The Texas Tort Claims Act grants a limited waiver of governmental immunity in certain circumstances: use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, 101.022; see Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004). For example, in a claim based on a premises defect, the municipality owes to the claimant only the duty owed a licensee on private property, unless the claimant pays for the use of the property. Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a).

The duty owed some claimants is restricted further by the Tort Claims Act's incorporation of the Recreational Use Statute. See id. § 101.058. That section provides:

To the extent that Chapter 75 [i.e., the Recreational Use Statute] limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under this chapter, Chapter 75 controls.

Id. The Recreational Use Statute, in turn, provides:

[I]f a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises.

Id. § 75.002(f) (West Supp. 2010).

The statute lists a number of activities that qualify as “recreation,” including nature study (which specifically includes bird-watching) and any other activity associated with enjoying nature or the outdoors. Id. § 75.001(3). And as to the duty owed, a landowner has no duty to warn or protect trespassers from obvious defects or conditions. State v. Shumake, 199 S.W.3d 279, 288 (Tex. 2006). The only duty a premises owner owes a trespasser is not to injure him willfully, wantonly, or through gross negligence. Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997). See Footnote 1 Thus, a municipality waives immunity under the Tort Claims Act and the Recreational Use Statute if the municipality's conduct is grossly negligent. Miranda, 133 S.W.3d at 225. Gross negligence requires that the landowner be actually, subjectively aware of-and consciously indifferent to-an extreme risk of harm. Shumake, 199 S.W.3d at 288.
The existence of subject matter jurisdiction is a question of law. Miranda, 133 S.W.3d at 226. We review the trial court's ruling de novo. Id at 228. When the plea challenges the claimant's pleadings, we determine whether the claimant has pleaded facts that affirmatively demonstrate the trial court's jurisdiction, construing the pleadings liberally and in favor of the claimant. Id. at 226. If the pleadings affirmatively negate jurisdiction, the plea should be granted. Id. at 227. When the plea challenges the existence of jurisdictional facts, we consider evidence submitted by the parties just as the trial court did. Id. We take as true all evidence favorable to the claimant, and we indulge all reasonable inferences in her favor. Id. at 228. If the evidence is undisputed or if it does not raise a fact question on the jurisdictional issue, then the plea can be resolved as a matter of law. Id. If the evidence raises a fact question on the jurisdictional issue, then the fact finder must resolve the issue at trial. Id.

SOURCE: Dallas Court of Appeals - 05-10-00727-CV - 8/15/11

Actual knowledge requirement in premises defect litigation

Premises liability: Did Premises Owner/Operator have actual knowledge of defect, dangerous condition?

As a threshold requirement in a premises liability claim, the plaintiff must prove that the defendant had actual or constructive knowledge of a premises defect. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). A plaintiff may prove notice by establishing that the defendant actually knew that the condition was dangerous or that it is more likely than not that the condition existed long enough to give the owner-operator a reasonable opportunity to discover it. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). While there is no one test for determining actual knowledge that a condition presents an unreasonable risk of harm, a relevant consideration is whether the owner-operator has received prior reports of the danger presented by the condition or prior reports of injuries. Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008) (citing Brinson Ford, 228 S.W.3d at 163). Additionally, “[t]he fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge.” Rice Food Mkt., Inc. v. Hicks, 111 S.W.3d 610, 613 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (quoting Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992)) (internal quotation marks omitted). Constructive knowledge, which is defined as knowledge that a person, after reasonable inspection, ought to have or has reason to have, may be imputed when the premises owner-operator had a reasonable opportunity to discover and to remedy an allegedly dangerous condition. Reece, 81 S.W.3d at 814; Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 645 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

SOURCE: Houston Court of Appeals - 01-09-00492-CV - 8/11/11 (with dissent)

Inquiry into elements of premises liability claim in Texas: Forseeability of injury

Premises liability: Did the condition pose unreasonable risk of harm?

A condition poses an unreasonable risk of harm when there is a “sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.” Hall, 177 S.W.3d at 646 (quoting Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002)) (internal quotation marks omitted). “Foreseeability in this context ‘does not require that the exact sequence of events that produced an injury be foreseeable.’ Instead, only the general damage must be foreseeable.” Id. (quoting Cnty. of Cameron, 80 S.W.3d at 556) (internal citations omitted). Evidence of a similar injury or complaint caused by the condition is probative on the question of whether the condition posed an unreasonable risk of harm. Id.; see also Klorer, 717 S.W.2d at 761. Whether a particular condition poses an unreasonable risk of harm is generally fact specific, and there is no definitive test for determining whether a specific condition presents an unreasonable risk of harm. Hall, 177 S.W.3d at 656 (citing Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 342 (Tex. App.—Austin 2000, pet. denied)).

SOURCE: Houston Court of Appeals - 01-09-00492-CV - 8/11/11 (with dissent)

Premises liability: Reasonable Care Element

ELEMENTS OF PREMISES LIABILITY CLAIMS IN TEXAS

Did Owner-operator exercise reasonable care to eliminate known risk?

A defendant breaches its duty of care if it fails to exercise ordinary care to protect the plaintiff from danger by failing to adequately warn the plaintiff of the condition and by failing to make the condition reasonably safe. See Reece, 81 S.W.3d at 814; CMH Homes, 15 S.W.3d at 101. The duty to use ordinary care toward invitees includes the duty to inspect the premises, and the premises owner-operator is charged with constructive knowledge of any premises defect or other dangerous condition that a reasonably careful inspection would have revealed. See CMH Homes, 15 S.W.3d at 101; Corbin, 648 S.W.2d at 295. When an owner-operator has notice of a condition on the premises that poses an unreasonable risk of harm, he has a duty to take whatever action is reasonably prudent under the circumstances to reduce or eliminate the unreasonable risk. Corbin, 648 S.W.2d at 295.

SOURCE: Houston Court of Appeals - 01-09-00492-CV - 8/11/11 (with dissent)

Causality in premises liability litigation: Did failure to exercise reasonable care proximately cause the plaintiff’s injuries?

PREMISES LIABILITY ELEMENTS

Did failure to exercise reasonable care proximately cause the injuries suffered by plaintiff

To prevail in an action for premises liability, an invitee must establish that the defendant’s lack of care proximately caused his injuries. CMH Homes, 15 S.W.3d at 99; Hall, 177 S.W.3d at 647. Proximate cause consists of cause-in-fact and foreseeability. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). A defendant’s negligence is the cause-in-fact of the plaintiff’s injuries if the negligent act or omission was a substantial factor in bringing about the injury, without which the harm would not have occurred. Hall, 177 S.W.3d at 648. Foreseeability “means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others.” Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549–50 (Tex. 1985). It requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Hall, 177 S.W.3d at 648.

SOURCE: Houston Court of Appeals - 01-09-00492-CV - 8/11/11 (with dissent)

Premises Liability Suit: Slip & Fall at Store - When is store owner liable for injuries sustained by customer?

PREMISES LIABILITY: SLIP & FALL INCIDENT AT STORE

What are the elements of a slip & fall premises liability claim?

To prevail on a premises liability suit, an invitee-plaintiff must prove: (1) a condition on the premises posed an unreasonable risk of harm; (2) the premises owner had actual or constructive knowledge of the danger; (3) the premises owner did not exercise reasonable care to reduce or eliminate the risk; and (4) the premises owner's failure to use such care proximately caused the plaintiff's injuries. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).

SOURCE: Dallas Court of Appeals - 05-09-01310-CV - 8/8/11

Premises Liability as to Invitees

ELEMENTS OF PREMISES LIABILITY CLAIM BY INVITEE 
& STANDARD OF PROOF

In a premises liability case, the plaintiff must establish (1) a legal duty owed to the plaintiff, (2) breach of that duty, and (3) damages proximately caused by the breach. See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010).

Status of Plaintiff with respect to the property on which injury happened or accident occurred 

The scope of the duty owed to plaintiff depends on the status of the plaintiff at the time the incident occurred. See Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); M.O. Dental Lab, 139 S.W.3d at 675.

Invitee Status

When [...] the plaintiff is an invitee, a property owner has a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known. Del Lago Partners, 307 S.W.3d at 767.

SOURCE: Dallas Court of Appeals - 05-10-00123-CV - 7/26/11

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

Liability for Premises Defects & Independent Contractors

CATEGORIES OF PREMISES-DEFECT CLAIMS UNDER TEXAS LAW There are two types of premises defects for which an independent contractor’s employee may seek to hold a premises owner or general contractor liable. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997). Existing dangerous conditions on premises not created by the contractor The first category includes those defects that exist on a premises when a business invitee enters for business purposes or are created through some means unrelated to the activity of the injured employee or his employer. Id.; Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 746 (Tex. 1973). When dangerous conditions do not arise through the independent contractor’s work activity, the owner or general contractor has a duty to inspect the premises and warn about the dangerous conditions of which the owner or general contractor knows or should know. Moritz, 257 S.W.3d at 214–15; Olivo, 952 S.W.2d at 527. An independent contractor is “under no duty to inspect the premises forconcealed dangers” because independent contractors may “anticipate” that the owner or general contractor “will discharge [its] duty to inspect the premises and warn of any dangerous condition which is not open and obvious.” Lamb, 493 S.W.2d at 746 (emphasis added); see also Moritz, 257 S.W.3d at 215 (stating that “[g]enerally, a landowner is liable to employees of an independent contractor only for claims arising from a pre-existing defect rather than from the contractor’s work, and then only if the pre-existing defect was concealed”). The rationale for this duty is that the owner or general contractor is in a “superior position to know of or discover hidden dangerous conditions on his premises.”[5] Lamb, 493 S.W.2d at 746 (emphasis added). [5] When a hidden, dangerous condition exists on a premises at the time an independent contractor enters, or when it “exists through some means other than the [independent contractor’s] work activity on the premises,” the owner’s or general contractor’s duty to an independent contractor and its employees “may be discharged by an adequate warning to the [independent contractor] or one supervising his work.” Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 747 (Tex. 1973). Independent contractors' work actitivity as cause of injury The second category of premises defects includes those defects an independent contractor, or its injured employee, create by its work activity. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Olivo, 952 S.W.2d at 527. When the independent contractor creates a dangerous condition, the owner or general contractor ordinarily has no duty to warn the independent contractor’s employees of the premises defect. Olivo, 952 S.W.2d at 527. The rationale for this rule is that an owner or general contractor normally has no duty to ensure that an independent contractor performs its work in a safe manner. Id. In explaining why, under the first category, the duty owed by a premises owner or general contractor to an independent contractor is limited to concealed hazards, the Texas Supreme Court has recently explained that because an independent contractor “owes its own employees a nondelegable duty to provide them a safe place to work, safe equipment to work with, and warn them of potential hazards,” a premises owner that “hires an independent contractor generally expects the contractor to take into account any open and obvious premises defects in deciding how the work should be done, what equipment to use in doing it, and whether its workers need any warnings.” Moritz, 257 S.W.3d at 216–17. The court reasoned that “[p]lacing the duty on an independent contractor to warn its own employees or make safe open and obvious defects ensures that the party with the duty is the one with the ability to carry it out.” Id. (emphasis added). In Moritz, an independent contractor, on a daily basis, loaded trailers with supplies from a General Electric warehouse. Id. at 213–14. Moritz, the independent contractor, sustained personal injuries in the course of securing the supplies after a rubber bungee cord that he was using broke and he fell off the side of a loading ramp. Id. Based upon the absence of handrails on the loading ramp, Moritz brought a premises-defect claim against GE. Id. at 215. The court, noting that the absence of handrails was “obviously a pre-existing condition and obviously not a concealed hazard,” concluded that GE had “no duty to warn Moritz that a ramp [that] he had been using for more than a year had no handrails.” Id. at 216. Although the court acknowledged that GE, as the premises owner, “had a duty to exercise care with respect to matters over which it exercised control,” it reasoned that Moritz’s premises-defect claim failed because GE “did not control where or how Moritz chose to secure his load.” Id. at 217. The court noted that “independent contractors are hired for special projects that often entail special expertise, and can be expected to use whatever equipment or precautions are necessary so long as a hazard is not concealed.” Id. (emphasis added). SOURCE: Houston Court of Appeals - 01-09-01089-CV - 6/23/11