DOES LANDOWNER OWE DUTY TO INDEPENDENT CONTRACTOR ON THE PREMISES? IF SO, UNDER
WHAT CIRCUMSTANCE?
MAJORITY'S NO-DUTY RULE RELIEVING PREMISES OWNER OF RISK OF LIABILITY FOR
INJURY SUFFERED BY INDEPENDENT CONTRACTOR'S EMPLOYEE CRITICIZED
Green Dissent in G.E. v. Moritz (Tex. 2008)
EXCERPT: The Court today abandons long-standing principles of premises liability law in its effort to shield
landowners and occupiers from liability for known premises defects. ... The practical effect of the Court’s holding
is to overrule Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978), and improvidently reintroduce the
discredited no-duty concept back into Texas premises liability jurisprudence. This outcome conflicts not just with
our own settled law, but also with comparative liability principles that govern virtually all other jurisdictions.
Contrary to the Court, I would follow Parker and hold that the court of appeals correctly remanded Arthur Moritz’s
premises defect claim for trial. Accordingly, I respectfully dissent.
G.E. v. Moritz, No. 04-0871 (Tex. June 13, 2008)(Majority Opinion by Justice Brister) (premises liability of land
owner, injury to employee of independent contractor, known danger, no duty)
GENERAL ELECTRIC COMPANY v. ARTHUR LEE MORITZ; from Tarrant County; 2nd district (02-03-00038-CV,
___ SW3d ___, 05-20-04)
2 petitions The Court reverses the court of appeals' judgment and renders judgment.
Justice Scott A. Brister delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice
Medina, and Justice Willett joined.
Justice Green delivered a dissenting opinion, (17-page dissenting opinion in pdf)
in which Chief Justice Jefferson and Justice Johnson joined.
(Justice O'Neill not sitting)
Opinion below: Moritz v. G.E. (Tex.App. - Fort Worth, May 20, 2004, pet granted)
See other 2008 Texas Supreme Court Opinions | Premises Liability Case Law |
════════════════════════════════════════════════════
Justice Green's Dissent in G.E. Co. v. Moritz (Tex. 2008)
════════════════════════════════════════════════════
Argued October 17, 2006
Justice Green, joined by Chief Justice Jefferson and Justice Johnson, dissenting.
The Court today abandons long-standing principles of premises liability law in its effort to shield landowners and
occupiers from liability for known premises defects. In doing so, the Court articulates an exceptional no-duty rule
for the premises liability claims of independent contractors' employees, but then fails to adhere to it. According to
the Court, the existence of a premises owner's duty in these cases ought to be governed by the general idea
that an independent contractor is empowered to do whatever is necessary to carry out work in a safe manner,
and that the duty of care should therefore fall on the employer rather than on the premises owner. ___ S.W.3d
at ___.
Placing the duty on the independent contractor makes sense when the independent contractor is given control
over the workplace conditions, but it makes no sense at all when, as here, the independent contractor lacks that
control. The Court purports to recognize the difference,[1] but refuses to draw the distinction. Moreover, the
practical effect of the Court's holding is to overrule Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978),
and improvidently reintroduce the discredited no-duty concept back into Texas premises liability jurisprudence.
This outcome conflicts not just with our own settled law, but also with comparative liability principles that govern
virtually all other jurisdictions. Contrary to the Court, I would follow Parker and hold that the court of appeals
correctly remanded Arthur Moritz's premises defect claim for trial. Accordingly, I respectfully dissent.
I
Moritz=s status as an independent contractor does not relieve the premises owner of the duty to warn of
premises defects. General Electric Company contracted with Moritz=s employer to pick up electrical supplies at
GE=s warehouse for delivery to GE=s customers. But Moritz had no controlCcontractual or otherwiseCover the
condition of his work environment at the GE warehouse; control over the warehouse premises was retained by
GE and/or Tarrant County Limited Partnership (TCLP) and CB Richard Ellis, Inc.[2] While Moritz was allowed to
use the warehouse ramp for loading supplies on his truck, he had no authority to alter the premises conditions,
and thus could not require that guard rails be placed along the ramp for his safety. Moritz controlled only the
specific location and manner in which he loaded his truck. Moritz=s circumstances at the warehouse, therefore,
were little different from the ordinary grocery shopper to which the Court alludes while trying to make the
opposite point, ___ S.W.3d at ___. Except that one had a wholesale as opposed to a retail purpose, the status
of each was functionally the same. And while it is well established that a grocery store owner owes its invitee
shopper a duty of care, even for open and obvious defects, the Court today says that no one owes Moritz a
similar duty, solely because of his independent contractor status. This unlikely outcome conflicts with principles
that have been settled in our state for more than thirty years.
We have long recognized that the essential test for assigning duty in premises liability cases is the determination
of who has control of the premises. See Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791B92 (Tex. 2006); Shell
Oil Co. v. Khan, 138 S.W.3d 288, 294 (Tex. 2004); Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002);
Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001); Koch Ref. Co. v. Chapa, 11 S.W.3d 153,
155 (Tex. 1999) (per curiam); Elliott‑Williams Co. v. Diaz, 9 S.W.3d 801, 803B04 (Tex. 1999); Coastal Marine
Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225B26 (Tex. 1999) (per curiam); Hoechst‑Celanese Corp. v.
Mendez, 967 S.W.2d 354, 355B57 (Tex. 1998) (per curiam); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d
523, 528 (Tex. 1997); Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993); Redinger v. Living, Inc., 689 S.W.
2d 415, 417B18 (Tex. 1985). Absent control over the premises, no duty to warn or make safe arises with respect
to any dangerous premises condition, but where the landowner controls the premises, the level of control
defines the contours of the duty. See, e.g., Redinger, 689 S.W.2d at 417B18. Just as the control requirement
informs negligent activity liability, it also explains duty in premises defect cases. See Olivo, 952 S.W.2d at 528
(AFor the general contractor to be liable for negligence, its supervisory control must relate to the condition or
activity that caused the injury.@). Thus, in slip‑and‑fall cases, store owners with control over dangerous floor
conditions owe a commensurate duty to their shopper customers. See Brookshire Grocery Co. v. Taylor, 222 S.
W.3d 406, 407B08 (Tex. 2006); Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 813B14 (Tex. 2002); Hernandez
v. Kroger Co., 711 S.W.2d 3, 4 (Tex. 1986) (per curiam); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295
(Tex. 1983). Considering all of this, it is difficult to see why the Court would treat Moritz differently.
The Court says that Moritz=s status as an independent contractor is the determining factor. But if duty in these
kinds of cases is to be determined on the basis of the plaintiff=s employment status, then the rule must also
apply to the shopper who buys groceries for his disabled employer, or the FedEx employee who delivers a
package to the grocery store manager. These are independent contractors just like Moritz, but under the
Court=s rule, the store owner owes a duty only to the shopper who shops for himself, but not to the independent
contractor who walks the same aisles in the same way. The Court=s attempt to explain this troubling dichotomy
falls short.
The Court uses independent contractor status as a proxy for what really matters: control over the premises
condition. As it explains, A[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.@
___ S.W.3d at ___ (emphasis added). The Court justifies this blanket rule for independent contractors by
assuming that all independent contractors are given control over all aspects of their work. Independent
contractor status as a substitute for control fails in Moritz=s case because the underlying assumption is plainly
wrong. Some independent contractors are given control over the premises on which they work, and in those
cases the premises owner=s duties may be relieved. But not all independent contractors are given the requisite
control, and when they are notCas in the case of Moritz and the FedEx deliverymanCthe rationale for relieving
the owner=s duty disappears entirely.[3]
Moreover, contrary to the Court=s assertion, id. at ___, GE=s control over Moritz=s activity does not govern
Moritz=s premises defect claim. By definition, a premises defect claim requires control over the allegedly
dangerous condition. E.g., Redinger, 689 S.W.2d at 417. That is why the commensurate duties relate not to the
plaintiff=s activity, but to the defendant=s propertyCthe premises owner owes invitees a duty to warn of
dangerous property conditions; there is no duty to warn invitees against their own dangerous activities. See
State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996) (per curiam). In light of our insistence that negligent activity
and premises defect claims be evaluated independently, see, e.g., Olivo, 952 S.W.2d at 527B30, the Court=s
use of negligent activity arguments in a premises defect claim fails to survive close scrutiny.
Rather than cling to false distinctions based on independent contractor status or control over Moritz=s activities,
the way to resolve this case is to determine who actually had control over the premises condition. Neither Moritz
nor his employer had control over the premises condition that resulted in Moritz=s injury. Moritz could not change
the condition of the ramp, only GE could. As a result, GE owed a duty to either warn Moritz of the dangerous
premises condition or to make it safe.
II
The Court=s other reason for shielding the premises owner from liability is its assertion that premises owners
owe duties only with respect to concealed defects. ___ S.W.3d at ___. Parker v. Highland Park, Inc. explicitly
confronted the no‑duty argument that the Court today applies:
The Ano duty@ doctrine is this: the occupier of land or premises is required to keep his land or premises in a
reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover
dangerous conditions. His duty is to protect his invitees from dangers of which he, the occupier, knows, or
(because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers
which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person
would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers
of which the invitees know, or of which they are charged with knowledge, then the occupier owes them "no duty"
to warn or to protect the invitees. This is so, the cases say, because there is Ano duty@ to warn a person of
things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter
of law he will be charged with knowledge and appreciation thereof.
565 S.W.2d 512, 516 (1978) (quoting Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 378 (Tex. 1963))
(citations omitted). After full consideration of the no‑duty jurisprudence, both in theory and in practice, Parker
abolished it:
We now expressly abolish the so-called no‑duty concept in this case and, as expressed in Farley, "henceforth in
the trial of all actions based on negligence . . . ." The reasonableness of an actor's conduct under the
circumstances will be determined under principles of contributory negligence. While this case arose prior to the
adoption of the comparative negligence statute, in the trial of cases under that statute, one who is contributorily
negligent is still entitled to have his negligence compared with that of the other participants in the event.
. . . .
There are many instances in which a person of ordinary prudence may prudently take a risk about which he
knows, or has been warned about, or that is open and obvious to him. His conduct under those circumstances is
a matter which bears upon his own contributory negligence. . . .
. . . .
A plaintiff's knowledge, whether it is derived from a warning or from the facts, even if the facts display the danger
openly and obviously, is a matter that bears upon his own negligence; it should not affect the defendant's duty.
Id. at 517-21 (quoting Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975)). Of key importance to Parker
was the Legislature=s adoption of the comparative negligence scheme:
The legislature by its adoption in 1973 of the comparative negligence statute evidenced a clear policy purpose
to apportion negligence according to the fault of the actors. That system replaced the harsh system of absolute
victory or total defeat of an action by such doctrines as contributory negligence, voluntary assumption of risk,
and also the included doctrine known as no‑duty. . . . The survival of no‑duty (plaintiff=s knowledge and
appreciation) as a total bar is incompatible with the legislative purpose of the comparative negligence statute.
Id. at 518 (citations omitted); see also Farley, 529 S.W.2d at 758 (A[T]he Legislature has now adopted
comparative negligence and thus evidenced its clear intention to apportion negligence rather than completely
bar recovery.@). Because comparative negligence still governs torts in Texas, see Tex. Civ. Prac. & Rem. Code
ch. 33, this case should be simple. GE does not dispute that the ramp is dangerous, and summary judgment
evidence from GE=s warehouse manager indicated that persons in Mortiz=s position were likely to be injured
despite the obviousness of the ramp=s condition. As a result, the question of whether or not the warehouse
ramp=s condition was concealed plays no part in the question of duty. If, in fact, the ramp=s defect was Aopen
and obvious,@ that condition could be weighed against Moritz only on the question of comparative negligence.
Concluding otherwise, the Court today resurrects what Parker abolished by simply changing the question. That
is, when the answer to AWas the defect concealed?@ is ANo,@ the answer to ADid the plaintiff know/Should the
plaintiff have known of the defect?@ will always be AYes.@[4] The Court=s reasoning essentially overrules
Parker by reducing its holding to a requirement that, in determining duty, courts ask the former question instead
of the latter. But this cannot be because Parker removed both of those questions from duty analysis. The
no‑duty doctrine said that Aif there are open and obvious dangers of which the invitees know, or of which they
are charged with knowledge, then the occupier owes them >no duty= to warn or to protect the invitees,@ and
Parker Aexpressly abolish[ed] the so‑called no‑duty concept.@ 565 S.W.2d at 516B17 (emphasis added). The
Court cannot avoid this result by framing the question as one of law, ___ S.W.3d at ___, because when the
Court decides that a condition=s obviousness means no duty, its inquiry is no different than what a jury would do
when deciding whether Moritz was himself negligent. In both instances, Moritz is faulted because he was aware of
the condition of the property and encountered it anyway. Under Parker and the comparative negligence scheme,
that fault question is no longer a part of the duty analysis.
In an attempt to determine what Parker left behind after abolishing the no‑duty doctrine, the Court misinterprets
Dixon v. Van Waters & Rogers, 682 S.W.2d 533 (Tex. 1984) (per curiam). See ___ S.W.3d at ___ & nn.21B28.
To be sure, Dixon was correct when it said that Parker=s Arule that the plaintiff does not have the burden to
obtain findings that disprove his own fault does not, however, mean that a plaintiff is excused from proving the
defendant had a duty and breached it.@ Dixon, 682 S.W.2d at 533B34. But Parker itself made clear what part of
duty a plaintiff must still prove:
These authorities dispel the idea that anything that can be seen precludes recovery because it is open and
obvious. For these reasons an open and obvious condition should not be confused with the plaintiff=s initial and
separate burden to prove knowledge of danger on the part of the owner.
565 S.W.2d at 520B21 (quoting Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413, 417B18 (Tex. Civ. App.CSan
Antonio 1952, writ ref=d n.r.e.)) (emphasis added). Dixon neither said nor implied that duty depends on
concealment. See Dixon, 682 S.W.2d at 533B34. The same is true for all of the court of appeals opinions cited
by the Court, which merely say that a plaintiff must prove the existence of a duty, not that duty depends on
concealment. See Bill=s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 370 (Tex. App.CHouston [14th Dist.] 2002,
pet. denied) (AThe Parker court abolished the additional requirement [of proving the absence of his own
subjective knowledge and appreciation of any danger], but, contrary to appellee=s assertion, did not change the
underlying obligation to establish a duty on the part of a defendant and a violation of that duty.@); Delgado v.
Houghston, No. 08‑99‑00044‑CV, 2000 WL 678774, at *5 (Tex. App.CEl Paso May 25, 2000, no pet.) (not
designated for publication); Joachimi v. City of Houston, 712 S.W.2d 861, 863 n.1 (Tex. App.CHouston [1st Dist.]
1986, no writ) (AAlthough Parker abolished >no duty,= as meaning that a plaintiff does not have to prove that he
lacked knowledge and appreciation, he must still prove, however, that the defendant had a duty and breached it.
@); Bryant v. Gulf Oil Corp., 694 S.W.2d 443, 445 (Tex. App.CAmarillo 1985, writ ref=d n.r.e.) (AThe Parker
court abolished the additional requirement but did not change the underlying obligation to establish a duty on
the part of a defendant and a violation of that duty.@); Thomas v. Internorth, Inc., 790 F.2d 1253, 1256 (5th Cir.
1986) (AThe abrogation of the no‑duty rule does not relieve a plaintiff from proving that the defendant had a
duty and breached it.@).[5]
Contrary to the Court=s suggestion, see ___ S.W.3d at ___ & n.1, we have remained consistent with the rule in
Parker, with one possible exception. Islas, Khan, and Lawrence concluded that there was no duty for reasons
unrelated to concealment. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007) (no duty
because of no control over the allegedly negligent activity); Shell Oil Co. v. Khan, 138 S.W.3d 288, 295B98 (Tex.
2004) (no duty because of no control over the allegedly defective premises); Coastal Marine Serv. of Tex., Inc.
v. Lawrence, 988 S.W.2d 223, 225B26 (Tex. 1999) (per curiam) (no duty because of no control over the
allegedly negligent activity). Only Wilhelm v. Flores would appear to be in conflict with Parker, but it was never
argued as a premises liability case, and was decided with neither citation to Parker nor discussion of the
apparent conflict. 195 S.W.3d 96, 98 (Tex. 2006) (per curiam). We should continue to adhere to Parker=s
comprehensive and explicit review of first principles.[6]
The Court=s employment of Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390 (Tex. 1967), ___ S.W.3d at ___, is
also puzzling because its authority has been largely, if not completely, abrogated by the enactment of the
comparative liability statute and by Parker, a later decided case. The Court=s error begins by misstating the
meaning of Delhi-Taylor, arguing that it stands for the proposition that no one Abesides Moritz=s employer must
owe him a duty here.@ ___ S.W.3d at ___. This is simply not accurate. Delhi-Taylor was not about whether a
duty was owed. In that case, the defendants did not dispute that they owed a duty to warn about dangerous gas
lines; the question was whether warnings to both the independent contractor and its employees were required,
or whether that duty could be discharged by warning only the independent contractor. Delhi‑Taylor, 416 S.W.2d
at 392. The Aunfair@ and Aintolerable@ burden cited by the Court was not simply the burden of a duty to warn,
but the burden of having to warn both the independent contractor and every one of the independent
contractor=s employees. Id. at 394 (A[T]here is no sound basis for requiring that the employees should be twice
warned.@ (emphasis added)). In short, Delhi-Taylor=s holding, to the extent that it retains any viability, is limited
to the scope of an existing duty to warn and, of course, that has no application to this case, which focuses
entirely on whether the landowner had a duty to warn at all. Id. at 392B94. It should also be noted that
Delhi‑Taylor is not relevant to the open and obvious question because the premises defect in that case was
concealed. Id. at 394. And even if the issue in this case were the adequacy of GE=s warningCwhich it is
notCGE=s defense would fail under Delhi-Taylor because GE warned neither Moritz nor his employer.
But to the extent that Delhi-Taylor can be viewed as supporting an open and obvious limitation, it was overruled
by Parker. In its discussion of duty, the existence of which no one disputed, Delhi-Taylor cited six Texas cases,
every one of which was part of the no‑duty jurisprudence that has now been abolished. Id. at 392, 394.[7] After
Farley and Parker, not a single Texas court has cited Delhi-Taylor in support of the Court=s position.[8] And
despite Farley and Parker=s unequivocal language, the Court steadfastly refuses to recognize that any open
and obvious limitation in Delhi-Taylor was abolished by the Legislature=s adoption of comparative negligence.[9]
Admonishing against too much reliance on Parker, the Court further argues that Aduty depends on a legal
analysis balancing a number of factors, including the risk, forseeability, and likelihood of injury, and the
consequences of placing the burden on the defendant.@ ___ S.W.3d at ___. Yet the Court fails to engage in
the balancing that it claims is mandatory. More importantly, it fails to recognize that the balancing need not be
done anew in every premises defect case because it has already been accomplished by the scores of common
law decisions in our courts. That balancing produced not just Parker, but a consistent line of cases recognizing
that the various permutations of plaintiff=s negligence are no longer a part of duty. See French v. Grigsby, 571
S.W.2d 867 (Tex. 1978) (per curiam) (rejecting last clear chance as an absolute defense in favor of comparative
negligence); Davila v. Sanders, 557 S.W.2d 770, 771 (Tex. 1977) (per curiam) (rejecting imminent peril as an
absolute defense in favor of comparative negligence); Farley, 529 S.W.2d at 758B59 (rejecting voluntary
assumption of risk as an absolute defense in favor of comparative negligence). No Amashing@ of laws has
occurred. See ___ S.W.3d at ___. As the Court noted just last year, our decisions have simply Arejected similar
efforts to compartmentalize negligence in rigid categories@ and Adiscarded categories like imminent‑peril,
last‑clear‑chance, and assumption‑of‑the‑risk in favor of a general submission of comparative negligence.@
Jackson v. Axelrad, 221 S.W.3d 650, 654 (Tex. 2007). While the plaintiff=s negligence could ultimately prohibit
recovery when compared to the defendant=s negligence, it will not defeat the claim at the duty stage of a lawsuit.
When properly read, our cases compel the conclusion that Moritz=s appreciation of the ramp=s danger does not
extinguish GE=s duty.
III
Comparative negligence is not rare, and as one of forty-six states to adopt the doctrine, we benefit from a wealth
of decisions addressing the question before us today. See Restatement (Third) of Torts: Apportionment of
Liability ' 7 cmt. a (2000). Yet the Court=s decision conflicts with the principles that are settled in nearly every
other jurisdiction, the most fundamental of which assigns the comparative fault determination to the finder of fact,
not the court:
' 7. Effect of Plaintiff=s Negligence When Plaintiff Suffers an Indivisible Injury
Plaintiff=s negligence . . . that is the legal cause of an indivisible injury to the plaintiff reduces the plaintiff=s
recovery in proportion to the share of responsibility the factfinder assigns to the plaintiff . . . .
Id. ' 7 (emphasis added). Never does the Restatement distinguish duties by identifying independent contractors.
Instead, the duty rule for obvious premises defect cases is based on forseeability and danger:
A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on
the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite
such knowledge or obviousness.
Restatement (Second) of Torts ' 343A (1965). The section=s comment explains the rule much like Parker did:
There are, however, cases in which the possessor of land can and should anticipate that the dangerous
condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the
possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty
may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or
obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer
physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the
possessor has reason to expect that the invitee=s attention may be distracted, so that he will not discover what
is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise
where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious
danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent
risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the
invitee is to be charged with contributory negligence, or assumption of risk. It is not, however, conclusive in
determining the duty of the possessor, or whether he has acted reasonably under the circumstances.
Id. ' 343A cmt. f (citations omitted). GE does not contest the danger posed by the ramp, and it does not contend
that Moritz=s fall and injury were not forseeable results of the ramp=s lack of a guard rail. GE=s only argument is
that the obviousness of the premises condition prevents any duty from arising. The Restatement defeats that
argument, as its most analogous illustration demonstrates:
The A Drug Store has a soda fountain on a platform raised six inches above the floor. The condition is visible
and quite obvious. B, a customer, discovers the condition when she ascends the platform and sits down on a
stool to buy some ice cream. When she has finished, she forgets the condition, misses her step, falls, and is
injured. If it is found that this could reasonably be anticipated by A, A is subject to liability to B.
Id. ' 343A cmt. f, illus. 3. This case easily fits that illustration.
The Court=s holding today conflicts with our premises liability jurisprudence, the careful deliberations of the
drafters of the Restatement, and the modern formulation of comparative liability.[10] If Parker and our
comparative liability scheme did not align so well with other jurisdictions and authorities, this case might present
a more challenging question. But when our jurisprudence is in accord with the great weight of authority, the
conclusion is clear: The premises owner/occupier in this case owed a duty of care to Moritz, regardless of his
awareness of the danger posed by the ramp.
IV
I agree with the Court=s disposition of Moritz=s negligent activity claim, which was directed solely at GE. GE did
not control Moritz=s activities in securing the load on his truck, and GE thus cannot be held liable for Moritz=s
resulting injuries. But Moritz=s petition alleged that GE knew or should have known that the absence of guard
rails created an unsafe and unreasonably dangerous condition. Neither motion for summary judgment
challenged those allegations, and no party argues otherwise here. As a result, I would hold that the trial court
should not have granted summary judgment on any form of the defendants= no‑duty argument. I therefore
dissent from the Court=s judgment because it fails to affirm the court of appeals judgment remanding the
premises defect claim for trial.
_________________________
PAUL W. GREEN
JUSTICE
OPINION DELIVERED: June 13, 2008
[1] ___ S.W.3d at ___ (A[T]he landowner=s duty is limited because control is being turned over to someone else in a way that is
not true of shoppers, sightseers, or other business invitees.@).
[2] In the trial court summary judgment proceedings, TCLP and Ellis argued that they owed Moritz no duty under the premises
defect claim because they did not control the ramp conditions. Because of the Court=s disposition, it does not reach this issue. I
would hold that the trial court should have denied TCLP and Ellis=s motion for summary judgment on the issue of control because
TCLP owns both the warehouse structure and the surrounding outdoor premises, and because the lease provisions between GE
and TCLP do not, as a matter of law, relinquish TCLP and Ellis=s control over the ramp=s condition. But for the sake of simplicity
throughout the remainder of this opinion, I refer to GE, TCLP, and Ellis collectively as GE.
[3] The Court=s blanket assumption that all independent contractors are Aspecial expert[s]@ in every subject that may present a
premises liability claim is similarly unsupported. See ___ S.W.3d at ___.
[4] Cf. Restatement (Second) of Torts ' 289 & cmt. e (1965) (AThe actor must exercise the perception of a reasonable man under
like circumstances. This means that he must to a reasonable degree make use of his senses to become aware of his
surroundings, and of any danger involved in them.@); see also id. ' 464.
[5] The Restatement likewise demonstrates that the Court misapprehends what Parker left intact as a complete bar to a plaintiff=s
recovery. Immediately after explaining that a plaintiff=s negligence cannot completely bar recovery, the RestatementCjust like
DixonCclarifies what remains:
Under comparative responsibility, most courts merge several defenses into plaintiff=s negligence, such as implied assumption of
the risk, avoidable consequences, and mitigation of damages. See ' 3, Comments b, c; Duncan v. Cessna Aircraft Co., 665 S.W.2d
414 (Tex. 1984). These defenses are based on the factfinder=s evaluation of the reasonableness of the plaintiff=s conduct. Other
defensesCsuch as contractual assumption of risk, immunity, privilege, statute of limitation, and certain statutory defenses under
the Uniform Commercial CodeCare based on other policy considerations. No reported decision has applied them as a
percentage reduction. They continue to constitute an absolute bar to recovery.
Restatement (Third) of Torts: Apportionment of Liability ' 7 cmt. k (2000).
[6] See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854B55 (1992).
[7] Halepeska, 371 S.W.2d 368, was expressly abrogated by Parker, 565 S.W.2d at 516, 519. See Dillon v. Wal‑Mart Stores, Inc.,
No. 98-40228, 1998 WL 723859, at *1 (5th Cir. Oct. 5, 1998) (recognizing abrogation). Robert E. McKee, General Contractor, Inc. v.
Patterson, 271 S.W.2d 391 (Tex. 1954), was also expressly abrogated by Parker, 565 S.W.2d at 513, 516B19. See Edco Prod., Inc.
v. Hernandez, 794 S.W.2d 69, 75 (Tex. App.CSan Antonio 1990, writ denied) (recognizing abrogation). Western Auto Supply Co. v.
Campbell, 373 S.W.2d 735 (Tex. 1963), merely followed Halepeska and McKee, and Hall v. Medical Building of Houston, 251 S.W.
2d 497 (Tex. 1952), was McKee=s predecessor. Tyler v. McDaniel, 386 S.W.2d 552 (Tex. Civ. App.CDallas 1965, writ ref=d n.r.e.),
was abrogated by Farley, 529 S.W.2d at 758. Texas Electric Service Co. v. Holt, 249 S.W.2d 662 (Tex. Civ. App.CFort Worth 1952,
writ ref=d n.r.e.), has no conclusion on any issue relevant to Delhi-Taylor. See id. at 668 (AWe hold that the deceased employee of
the independent contractor was not an invitee or licensee of appellant for the purpose of hanging this fuse at the time and place in
question.@). Thirty years have passed since any Texas court has cited Campbell, Hall, Tyler, or Holt favorably in a premises
liability case.
[8] To the contrary, at least three courts of appeals have expressly recognized that Parker had this effect on Delhi‑Taylor. Union
Carbide Corp. v. Burton, 618 S.W.2d 410, 414 (Tex. Civ. App.CHouston [14th Dist.] 1981, writ ref=d n.r.e.); Baca v. Sand, Inc., 600 S.
W.2d 840, 843 (Tex. Civ. App.CHouston [1st Dist.] 1980, writ ref=d n.r.e.); Schley v. Structural Metals, Inc., 595 S.W.2d 572, 579B82
(Tex. Civ. App.CWaco 1979, writ ref=d n.r.e.); see Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 298 (Tex. 1983) (AThe invitee=s
knowledge and conduct are now factors the jury must weigh in determining whether the invitee was contributorily negligent, not
whether the premises occupier was negligent.@).
[9] The courts of appeals have not hesitated to apply Parker to cases involving independent contractors, and for good reason. The
court in Schley explained the perverse incentives that the Court=s interpretation creates:
To hold that the Delhi‑Taylor doctrine survived Parker would result in the following incongruity: The injured workman who
confronted an open and obvious hazard or one of which he had personal knowledge would not automatically be barred from
recovery; he would be able to go to the jury under principles of contributory negligence. However, the injured workman who did not
have personal knowledge of the dangerous condition by warning or by other circumstance would be barred from recovery by the
fact that his employer knew of the condition. The landowner who personally warned the injured workman of the dangerous
condition or who had a dangerous condition on his premises that was open and obvious would not automatically be entitled on
those facts to a defense verdict, but if the landowner did nothing and the workman's employer happened to know of the dangerous
condition, or if the landowner warned only the workman's supervisor, the landowner would be entitled to a complete defense
verdict. The landowner who warned one supervisor would fare better than one who warned each individual workman but no
supervisors. We cannot believe the Parker decision was intended to create a set of rules whereby knowledge of a dangerous
condition by supervisory personnel of the injured workman would bar recovery, but personal knowledge by the workman would not;
and it is our view that the Delhi‑Taylor rule was necessarily set aside by Parker.
595 S.W.2d at 581B82 (citations omitted).
[10] See Ernest H. Schopler, Annotation, Modern Status of the Rule Absolving a Possessor of Land of Liability to Those Coming
thereon for Harm Caused by Dangerous Physical Conditions of which the Injured Party Knew and Realized the Risk, 35 A.L.R. 3d
230 (1971 & Supp. 2008); 1 Texas Torts & Remedies 20.05[2][a] (J. Hadley Edgar Jr. & James B. Sales, eds. 2008); 4 Fowler V.
Harper, Fleming James, Jr. & Oscar S. Gray, Harper, James and Gray on Torts '' 21.1B.2, 21.5, 21.8 (3d ed. 2007); 5 id. '27.13; 3
Stuart M. Speiser, Charles F. Krause & Alfred W. Gans, The American Law of Torts '' 13.35, 14.6 (1986 & Supp. 2001); W. Page
Keeton, Prosser & Keeton on the Law of Torts ' 61 (5th ed., Lawyer=s ed. 1984).