Texas PJC Malpractice 2022

P REMISES L IABILITY —D EFINITIONS AND I NSTRUCTIONS

PJC 65.1

PJC 65.1

Application—Distinction between Premises Defect, Negligent Activity, and Negligence of Nonsubscribing Employer (Comment)

Three types of claims may be brought against the owner or occupier of a premises: (1)those arising from a premises defect, (2)those arising from a negligent activity on the premises, and (3)those arising from the negligence of a nonsubscribing employer that results in injury to an employee. See Austin v. Kroger Texas, L.P. , 465 S.W.3d 193, 201, 216–17 (Tex. 2015). See also United Scaffolding, Inc. v. Levine , 537 S.W.3d 463, 471 (Tex. 2017); Clayton W. Williams, Jr., Inc. v. Olivo , 952 S.W.2d 523, 527 (Tex. 1997). The first type, premises defect, involves a defective condition on the premises. United Scaffolding , 537 S.W.3d at 472 (where plaintiff fell through hole in United Scaffolding–constructed scaffold after a piece of plywood that was not nailed down slipped under him, case involved premises defect rather than negligent activity); Olivo , 952 S.W.2d at 527. The second type, negligent activity, requires a claimant to have been injured by, or as a contemporaneous result of, the activity itself—not by a condition the activity cre ated. See Keetch v. Kroger Co. , 845 S.W.2d 262, 264 (Tex. 1992) (plaintiff who slipped on floor may have been injured by a condition created by spraying but was not injured by the activity of spraying itself). In Del Lago Partners, Inc. v. Smith , 307 S.W.3d 762, 776 (Tex. 2010), the court stated, “We have recognized 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.” See also Del Lago Partners, Inc. , 307 S.W.3d at 789–90 (Wainwright, J., dis senting) (listing cases of each type). The third type, negligence of a nonsubscribing employer, involves a breach of a duty that does not involve contemporaneous negligent activity but, rather, a breach of one or more of the duties that employers owe to their employees to use reasonable care to provide a safe workplace. See Austin , 465 S.W.3d at 217; Fort Worth Elevators Co. v. Russell , 70 S.W.2d 397, 401 (Tex. 1934), overruled on other grounds by Wright v. Gifford–Hill & Co. , 725 S.W.2d 712 (Tex. 1987); Kroger Co. v. Milanes , 474 S.W.3d 321, 335 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Katy Springs & Manufac turing, Inc. v. Favalora , 476 S.W.3d 579, 592–93 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). These include the duty to (1) provide rules and regulations for the safety of employees, and to warn them, under certain conditions, as to the hazards of their positions or employment, (2) furnish reasonably safe machinery or instrumentali ties with which its servants are to labor, and (3) exercise ordinary care to select careful and competent fellow servants or coworkers. Russell , 70 S.W.2d at 401. Because the elements of these three premises liability theories are different, it is important to submit the questions, instructions, and definitions that are applicable to

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