Were you injured because you fell when you slipped on ice because a store owner left his sprinklers in freezing weather? Were you injured when you tripped on loose tile or stairway step that the owner of the property knew about, but neglected to fix? Were you injured in a store or a business because the owner or the store was negligent in allowing a dangerous condition that posed an unreasonable risk of harm that the owner of the store knew or should have known existed and failed to either warn you about the condition or to fix the condition? These are a few examples of cases that the law in Texas usually refers to as a “Premises Liability” case.
Premises Liability cases in Texas are very complex cases. When I investigate these cases, I first look to determine who is responsible for maintaining the property in a safe condition. Then, I analyze what category of person the law will classify the injured person as because the legal duties the owner or occupier of the land has varies depending on the category of person.
Analyzing the Owners & Occupiers of Land:
Texas law requires that owners and occupiers of land use ordinary care protect “invitees” and “licensees” from being injured while on the property. Often times, the owner and the occupier of the property are the same person. However, there are many times where the owner is a different person than the occupier of the property. For example, a restaurant or a store may be a tenant and lease the space they occupy in a shopping mall from the landlord. In those cases, the landlord may have a lease which requires the landlord to maintain the parking lot while the lease may require the store owner to be responsible for maintaining the area inside of the store. In those cases where there is a distinction between who the owner and the occupier is, it is very important to know exactly where the incident took place and to know if there is a lease or some type of contract that determines who is responsible for certain activities or maintaining particular sections of the property to know who may be responsible for injuries on the property.
Duties of Care Owed Are Based On the Categories of the Injured Person:
The next step in the analysis is to determine what category the law places the injured person in. The injured person is either (1) an “Invitee”; (2) an “Licensee” (3) a “Trespasser. In addition, there is an exception that applies to young children who would otherwise be classified as a trespassers. These cases are referred to as an attractive nuisance cases.
The law imposes the highest degree of responsibility on owners and occupiers to protect the safety of “Invitees” to the property. An owner or occupier of a premises owes a legal duty to fix or to warn invitees of conditions which pose an unreasonable risk of harm that the owner or occupier knew or should have known about.
An “invitee” is a person who enters the land with the owner’s knowledge and for the mutual benefit of both parties is an invitee. The most common example of an invitee is a customer at a store, but it can also include employees and independent contractors who are at their place of work, it can even include a postal worker, an Amazon delivery person or a Fed/Ex or UPS delivery person who is bringing a package to a home or business. Although the term “invitee” sounds like it would mean someone who received an “invitation” to enter on the property, in deciding whether a person is an “invitee” the person does not need to have an actual invitation to be an invitee.
A licensee is sometimes a person who enters the land with permission for his or her own benefit is a licensee. The most common example is a social guest such as a neighbor or a friend. For licensees, an owner or occupier has a legal duty to warn or to make safe any condition posing an unreasonable risk of harm that is actually known to the landowner. The owner or occupier is not required to warn or to makes safe conditions which the license has knowledge about.
As you would expect, the law does not provide much protection to trespassers because they are on someone else’s property when they should not be. An owner or occupier of property only owes a duty not to injure another person intentionally or through gross negligence.
An important exception to the general rule regarding trespassers applies to young children. Under the attractive nuisance doctrine an owner or occupier of land owes a duty to a young children even though they are trespassing when:
- Owner or occupier of the land knew or should have known there was an artificial condition (as opposed to naturally occurring condition such as a cave) on the land and children were likely to trespass on the property. Examples of these artificial conditions would include pump jacks, billboards, large irrigation pipes, open caliche pits and cattle dipping vats.
- The Owner or occupier knew or should have known the artificial condition posed an unreasonable risk of injury or death to children.
- The child (usually a child who is less than 12 years of age) did not realize the risk involved with the condition because of his or her age.
- The utility of the maintaining the condition and burden of eliminating the danger were slight compared to the risk to the children.
- The failure to exercise reasonable care to eliminate the danger or otherwise protect the child caused the child’s injury.
ALCOHOL SERVING LIABILITY – DRAM SHOP LIABILITY
It isn’t always just the drunk driver’s fault. Often times, the drunk driver has been over-served alcohol at a bar or a restaurant far beyond the point of being obviously intoxicated. In Texas, we refer to cases against servers of alcohol as “Dram Shop Cases.” Under the Texas Alcohol Beverage Code, servers of alcohol have a legal duty to not serve alcohol to someone that is obviously intoxicated. This means that bars, restaurants and even the bartender can be legally responsible to pay money damages if they overserve alcohol to a customer or to a minor who is then involved in a wreck that results in personal injury or wrongful death. They are only responsible in proportion to their share of the legal liability. This does not mean that the drunk driver is not also responsible, but dram shop laws provide an important role in Texas to hold these bars, restaurants and servers of alcohol accountable for their actions and to discourage them from putting profits ahead of safety. Dram shop laws are also important because they help victims of drunk driving accidents obtain compensation for their damages. Far too often, the drunk driver either has no insurance or very little insurance, the damages that victims suffer when they lose a loved one or suffer serious injuries would either go completely uncompensated or insufficiently compensated.
Safe Harbor Defense
Texas law gives businesses that serve alcohol a way to protect themselves from Dram Shop claims and lawsuits. It is called the Safe Harbor defense. The bar or restaurant is entitled to assert a defense that it has followed guidelines set forth by the state with regards to serving their patrons by showing:
- Its employees have attended a TABC-approved seller training program,
- Ensuring the server actually attended such a program,
- Proof establishing that the employer has not directly or indirectly encouraged his employee to violate the law.
Although the Texas legislature has given bars and restaurants the Safe Harbor Defense, many bars and restaurants lose that defense because they have put the profits of selling alcohol above the safety of the community. Sometimes the facts show that the bars and restaurants encouraged employees to violate the law which is often the case. This can be shown through evidence that
- The bar does not require or maintain records to ensure that all servers are TABC certified;
- Allowing servers to serve alcohol whose TABC certification is expired or revoked;
- Bartenders getting drunk on the job
- Advertising drink specials and reviewing the alcohol sales of the bar or restaurant;
- Training employees to push excessive alcohol sales;
- Evaluating 911 calls made by other customers, nearby businesses and sometimes even employees of the bar to report drunken conduct at the bar;
- Customers passing out in the bar or the restaurant;
- Customers who are so intoxicated that they wreck their car in the parking lot of the bar;
- Bouncers sexually assaulting intoxicated female customers.
If a bar or restaurant has over-served someone to such a degree that they are intoxicated and become involved in a serious accident, they should be held accountable. If you or a loved one has been been involved in an accident with a drunk driver, it is critical that you contact an attorney as soon as possible to begin an investigation to determine if a bar or restaurant may also be responsible for causing the accident. Time is critical in this investigation. The staff at most restaurants and bars often come and go. Evidence gets lost or is destroyed the more time that goes by. If you or a loved one has been injured by a drunk driver, hire an attorney who will fight for you. Call now for a free consultation.