536 S.W.3d 19
Tex. App.2016Background
- Carla Wallace, a security guard employed by Merchant Security, patrolled ArcelorMittal Vinton’s steel mill and fell on March 24, 2012 after tripping over a piece of metal (a "billet") in front of the machine shop.
- Wallace had worked the plant for two years, had inspected the machine shop that night, and observed clutter/metal outside the shop before entering.
- Exterior lightbulbs were missing; Wallace used her truck headlights and a flashlight while making rounds. She directed her flashlight away to investigate a noise and then tripped when returning to the truck.
- AMV moved for summary judgment arguing (among other things) Wallace knew the hazard so AMV owed no duty to warn or make safe; the trial court granted summary judgment (grounds unspecified).
- On appeal Wallace contested the summary judgment; the court framed the dispositive issue as whether AMV owed a duty given Wallace’s knowledge of the hazard.
- The court affirmed: because Wallace was aware of the clutter/materials, AMV had no duty to warn or make safe (and Wallace did not invoke the necessary-use exception).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AMV owed a duty to warn or make safe when invitee knew of the hazard | Wallace: clutter in driveway was an ever‑changing concealed danger; AMV still liable | AMV: Wallace knew of the scrap/obstacles, so no duty to warn or make safe | Court: No duty — Wallace knew the hazard; summary judgment affirmed |
| Whether the necessary‑use (Parker) exception applies | Wallace did not rely on Parker in briefing | AMV: Parker not invoked; alternative duty not shown | Court: Plaintiff failed to invoke/apply Parker; exception not considered |
| Whether changing condition argument avoids open‑and‑obvious rule | Wallace: variability of scrap made hazards specific/concealed | AMV: scrap was visible and unchanged during the relevant time | Court: Amount may change over time but was unchanged while Wallace entered/exited; notice defeats concealment claim |
| Whether summary judgment was improper because of factual disputes | Wallace: disputed facts about amount/placement of materials | AMV: evidence shows Wallace observed the materials; no genuine issue of duty | Court: Taking nonmovant evidence as true, Wallace still aware of hazard; no genuine issue on duty |
Key Cases Cited
- Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015) (landowner may make safe or warn; invitee's knowledge normally negates duty; Parker is a limited exception)
- Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998) (landowner obligations to protect invitees from foreseeable third‑party criminal acts)
- Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978) (necessary‑use exception — invitee must use dangerous premises and cannot avoid risk)
- Brookshire Grocery Co. v. Goss, 262 S.W.3d 793 (Tex. 2008) (no duty to warn of hazards known or appreciated by employee/invitee)
- Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006) (no duty to warn of a danger known to all)
- Gen. Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008) (preexisting, obvious conditions are not concealed hazards)
- Wilhelm v. Flores, 195 S.W.3d 96 (Tex. 2006) (obvious hazards need not be warned)
- TXI Operations, L.P. v. Perry, 278 S.W.3d 763 (Tex. 2009) (landowner may repair hazard or provide adequate warning)
- E.I. DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48 (Tex.App.—Houston [14th Dist.] 2014) (distinguishes concealed subsoil defect from open, obvious hazards)
- Griffin v. Shell Oil Co., 401 S.W.3d 150 (Tex.App.—Houston [1st Dist.] 2011) (reversed summary judgment where specific, ever‑changing defects were not shown to be known to invitee)