Premises Liability in Texas: What to Know and What to Do if You are Injured
Premises liability cases have developed into some of the toughest cases to pursue in the Texas. This is because of the harsh way the law has developed on these cases in the name of tort reform. This guide is intended to aid those who are injured in businesses and on the property of others.
Which type of premises liability case do I have?Premise liability cases can encompass a range of different fact patterns and different theories of liability. These are the various types of cases and the most common fact patterns involving each:
1) Standard Premises Negligence Case: This case type involves a claim that there was a dangerous condition or circumstance involving the property that caused an injury.
[Examples]: A person trips over an unsecured cord strung out across the room. A person gets electrocuted by exposed wiring. A person gets bitten by bed bugs at a hotel.
2) Negligent Activity: A negligent activity case involves a claim that one of the Defendant's employees injured someone else while they were actively performing some type of activity on the premises.
[Examples]: An employee knocks over a shelf on to another person. An employee carrying something up high drops something on to a person below them. An employee driving a forklift runs into someone.
3) Negligent Undertaking: Negligent undertaking cases is when the property owner assumes or contracts for a duty where they otherwise would not legally have one. In the context of a premises injury, these typically involve a landlord/tenant relationship.
[Examples]: A tenant informs a landlord of a water leak in their own apartment that the landlord fails to fix then later gets injured by the leak. A landlord promises to provide security in a lease agreement with the tenant, but fails to do so which leads to an injury.
What do I need to prove for each type of case?Each of the three major types of premises liability cases requires a different standard of proof. Here is what you need to prove for each type of case:
1) Standard Premises Negligence: A) There was a dangerous condition on the premises; B) the dangerous condition caused an injury; C) the premises operator created, knew, or should have known about the dangerous condition before the injury occurred; D) the premises operator failed to fix/clean or warn about the dangerous condition before the injury occurred.
2) Negligent Activity: The employee failed to act as an ordinarily prudent person would or would not have acted under the same circumstances.
3) Negligent Undertaking: A) The premises operator assumed a duty where one would not have otherwise existed; B) The injured person relied on the premises operator to perform that duty; C) the person was injured as the result of the premises operator's failure to perform that duty.
Why are premises cases difficult, and why am I having trouble finding an attorney?Many attorneys in Texas no longer take standard premises liability cases or drop them before filing suit after the claim is denied. Because of this many corporate Defendants and insurance companies have started denying claims as a matter of course, even when there is a valid claim. Many attorneys will also pass on negligent activity and negligent undertaking cases because they are not as common and many attorneys do not understand the difference in the law in those areas, even if they are generally easier cases to prove. The reason that attorneys avoid standard premises cases is because the law makes it very difficult for us to even get the case to the trial stage before a judge and jury. This is because the defense will almost always claim that they did not do anything wrong, that they put out warning signs, or that they did not know about the dangerous condition on their property (ex: water on the floor) before the person got injured. When they do this, the injured person needs to produce some evidence that the Defendant created or knew about the condition before the injury occurred or else the case will get thrown out with zero recovery.
Why can't I just argue that they should have known about the condition?This is where the law is greatly stacked against consumers. The Texas Supreme Court has said that just an allegation is not enough to keep a premises liability case. They also say that speculation/guesses as to whether or not the premises operator should have known about or created the condition are also not enough to keep the case, there has to be hard evidence. Furthermore, just having employees nearby to where the incident occurred is not enough to keep the case. According to the Supreme Court, if the injured person is relying on the "should have known" standard, then they need to produce evidence as to how long the condition existed before the fall and how the operator should have been able to discover it. This is very hard evidence to find when the operator's employees claim that they do not know anything and when the injured person did not know about condition before their injury and therefore cannot say how long it had been there.
If this happens to me, then what do I need to do to help protect myself?The most important thing to do is to document and save all of the evidence that might be available at the scene after you are hurt including potential witnesses. You may find this difficult to do while you are injured and may believe that it will look suspicious, but it could save you from having to bear the consequences of your injury by yourself. Steps to take at the scene include:
1) Stay as calm as possible and be polite to everyone at the scene even if you feel upset, embarrassed, or in an extreme amount of pain.
2) take pictures of the dangerous condition that injured you and any visible injuries that you have at the scene.
3) Get the names of any witnesses that say that they saw the incident or knew about the dangerous condition before it hurt you and write down their contact information
4) Get the names of any employees that are nearby or speak with you and write them down. Take note of any statements that they make regarding the condition, especially if they indicate that they knew about the dangerous condition or accidentally created it.
5) Ask the employees to fill out an incident report and written statements as to what they know and saw.
6) If there is camera coverage for the area, ask the employees to save the footage.
7) Do not apologize, blame the incident on yourself, say that you should have known better, tell them that you think that you will be just fine, or tell them that you are going to get an attorney or sue. They will try to use those statements against you.
8) Do not hesitate to call an ambulance from the scene if you are in severe pain or are unable to drive.
9) Go get checked out immediately if you are feeling symptoms of an injury, then consult with an attorney afterwards. Do not be afraid to use your health insurance at the hospital, even if you believe that the other party is at fault, because hospitals typically will try to collect their bills if they go unpaid and will file against your credit even if you or your attorney tells them that they will be paid from any settlement.
10) Do not speak to the company's corporate representative to try to negotiate or to give a recorded statement, they are not there to look out for your best interests and will only attempt to get information or statements to use against you.
11) If you have a premises case against your landlord or someone that you have a contract with, then ask for a copy of your contract agreement and any written work orders that you had placed to fix the condition that injured you.
What if I was injured while I was working?If you were an employee, then you will either have a workman's comp case or a non-subscriber case depending on which type of insurance your employer carries. Both of these are handled in a completely different manner than the types of cases discussed in this guide. Take the same steps that I recommend to preserve the evidence at the scene and also ask your employer which type of coverage is available.