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Landowner Liability

By Sam A. Moak

A common concern for any Texas landowner is when they may be held liable if someone is injured on their property.  Landowners often ask, “What can I do to protect myself in the event this occurs?”  It is important for landowners to understand the duty the law imposes on them for each person entering their land.  Additionally, there are a number of steps landowners can take in order to protect themselves and their operations from liability.  This week I will deal with a look at the most common legal claims.  

When someone is injured on another’s land, he or she has two potential legal causes of action—a negligent act claim or a premises liability claim.  The two claims each have a separate applicable legal framework.  Thus, the threshold issue is to determine which of these two claims the case falls under. 


A negligent act occurs when there is an “ongoing activity” that leads to the person’s injury.  For example, a person was injured when a box being moved by employees was dropped on the person’s head.  In this example, because the person was injured by an ongoing act – the moving of the box – it was a negligent act case.  

In order to prevail in a negligent act case, a party/plaintiff must prove the following elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the defendant’s action caused the plaintiff’s injury, and (4) the plaintiff suffered damage.  This is the analysis in a common negligence case, such as a car accident.  In a negligent act case, the plaintiff must prove the defendant acted unreasonably under the circumstances and such action caused the plaintiff’s injury.  Negligence is one of the more common legal claims and can be made in a variety of different circumstances, including a negligent act, a car accident, or pesticide drift. Regardless of the factual circumstances, every negligence case is analyzed utilizing these elements.  

Premises liability:

A premises liability case arises when a plaintiff is injured by a condition on the land, as opposed to an ongoing activity.  Most people have heard of “slip and fall” cases, but I will describe one as an example.  Suppose a grocery store sprayed a substance on the plants in the store.  A person who comes along and falls in that location.  The plaintiff would try to prove that they were injured not by  the ongoing activity of spraying, but rather the condition created after the spraying, wetting the floor, and, as a result of this condition, they slipped and fell.  

It is more difficult to prove the elements of a premises liability claim than a negligent act claim.  For a premises liability claim, an injured party must prove the following elements: (1) the defendant had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the defendant did not exercise reasonable care to reduce or eliminate the risk; and (4) the defendant’s failure proximately caused the plaintiff’s injury.  

Note that Texas law divides people into three different categories for the purposes of knowledge of the condition.  They are: (1) trespasser; (2) licensee; and (3) invitee.  A different standard of duties is owed to each of the above with regards to having knowledge of the condition.  Thus, anytime someone is injured on the land of another, it is important to determine which of these categories the injured party belongs to.   My intent this week was to make property owners aware of their liabilities when owning property.  In next week’s column, I will attempt to explain the steps a landowner can take for liability protection.  For more details on what duties you may have as a landowner, please contact an attorney familiar with real estate.  This way you can take steps to protect yourself and your operations from this liability.  

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com