Lead Opinion
delivered the opinion of the Court,
Must a landowner warn an independent contractor’s employees of obvious hazards they already know about? Four times in the last ten years this Court has said the answer is “No.”
I. Background
Arthur Lee Moritz worked for an independent contractor that delivered General Electric parts to customers. Every day for 18 months, Moritz drove his pick-up to GE’s warehouse, which had a loading dock with two large doors. Both doors were about four-and-a-half feet above the paved driveway, but only one had a concrete ramp extending down to grade level. The ramp was straight, 10 feet wide, 40 feet long, and had six-inch curbs along both edges but no guard rails. Generally, Mor-itz loaded supplies either by backing his truck up the ramp and into the warehouse itself, or backing up next to the door without a ramp. But on some days, he would load his truck on the ramp or outside in the driveway.
On the day Moritz was injured, both doors were blocked by GE supplies, so he parked his truck up on the ramp. Two GE employees helped him load electrical conduit into the bed of his pickup, after which Moritz alone secured the load with rachet-type straps. He then tried to add a rub
Moritz sued GE and others,
II. The Negligent Activity Theory
Moritz alleged a negligent activity claim solely against GE. Generally, an owner or occupier does not owe a duty to ensure that independent contractors perform their work in a safe manner.
In the summary judgment record here, there was no evidence Moritz’s duties were governed by a contract. There was some evidence that in prаctice GE controlled where Moritz could load his truck, such as when it blocked some of his loading options. But there was no evidence it controlled how or where Moritz secured his load for delivery — the truck, straps, and rubber cords he used for that purpose were entirely his own.
Citing our opinion in Lee Lewis Construction, Inc. v. Harrison,
Here, GE’s control of where Moritz could load supplies did not dictate where
Accordingly, the court of appeals erred in finding a fact question on his negligent activity theory.
III. The Premises Condition Theory
Moritz alleged a premises-condition claim against all the defendants. Generally, a landowner is liable to employees of an independent contractor only for claims arising from a pre-existing defect rather than from the contractor’s work,
Limiting premises liability to concealed hazards is not unique to cases involving independent contractors. A lessor who relinquishes possession or occupancy of premises also has no duty to warn of defects except those that are concealed.
An independent contractor owes its own employees a nondelegable duty to provide them a safe place to work, safe equipment to work with, and warn them of potential hazards;
The dissent argues that it “makes no sense” to allocate duty in this manner because Moritz had no “control over the workplace conditions.” GE may have controlled Moritz’s loading options, but not where he chose to secure his load. Accordingly, it had a duty only to warn him of concealed defects he might encounter in doing his own work. The absence of handrails here was clearly not a concealed defect. If owners and occupiers have no duty to warn an independent contractor of open and obvious defects, the defendants had no duty to warn Moritz that the ramp he had been using for more than a year had no handrails.
IV. The Duty to Independent Contractors and Parker
The court of appeals held the defendants still owed Moritz a duty to warn or make the ramp safe because this Court abolished all no-duty arguments in 1976 in Parker v. Highland Park?
In Parker, a landlord mis-set a timing device that turned on the lights in an enclosed stairway of an apartment building, darkening the tenants’ only way down.
But Parker abolished a certain kind of no-duty defense, not all duty questions whatsoever. The question in Parker was not whether the defendant owed the plaintiff a duty; the landlord unquestionably had a duty to provide second-floor renters some way down besides jumping. The question instead, as we explained in 1984 in Dixon, was whether the plaintiff had to prove she had no knowledge of the stairway’s darkness as part of her case-in-chief:
The term “no-duty,” as used in Parker, referred to the oddity that had uniquely developed in Texas to confuse negligence law. It meant that a plaintiff had the burden to negate his own knowledge and his own appreciation of a danger. The rule 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. A plaintiff does nоt have the burden to prove and obtain findings that he lacked knowledge and appreciation of a danger; he must, however, prove the defendant had a duty and breached it.21
We do not, as the overwrought dissent suggests, overrule Parker, comparative negligence, or principles of premises liability law “that govern virtually all other jurisdictions.” We acknowlеdge that GE had a duty to exercise care with respect to matters over which it exercised control, but it did not control where or how Moritz chose to secure his load. Unlike other invitees, independent contractors are hired for special projects that often entail special expertise,
Nor has it been “settled in our state for more than thirty years” that someone besides Moritz’s employer must owe him a duty here. We expressly rejected any such duty forty years ago. Before then, we had held in the 1920s in Galveston-Houston Elec. Ry. Co. v. Reinle that a premises owner hаd to warn employees of an independent contractor of a hazard even if the employee already knew about it.
Reirile must either be followed or overruled. With due respect for the rule of stare decisis, we are convinced that the rule of Reinle imposes an unfair and, indeed, an intolerable burden on an owner or occupier of land who employs an independent contractor to do work or to perform services on the premises. While an owner owes a duty to employees of an independent contractor to take reasonable precautions to protect them from hidden dangers on the premises or to warn them thereof, an adequate warning to or full knowledge by the independent contractor of the dangers should and will be held to discharge the landowner’s alternative duty to warn the employees.31
This rule, repeated frequently and as recently as 2007, has never been abrogated — impliedly or otherwise — as the dissent asserts.
Nor is analysis of a defendant’s duty “no different” from analysis of a plaintiffs negligence. It is true that when a hazard is obvious, the plaintiff will usually know about it. But that does not mean the plaintiff is negligent, as some like Ms. Parker must encounter a hazard because they have no other choice.
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When a defendant hires an independent contractor to come on premises and perform work as it sees fit, the defendant may reasonably expect the contractor to instruct its own employees on the safe means and manner of doing so. Regardless of whether Moritz acted prudently, the defendants had no duty to warn him that the ramp he used daily had no handrails. Accordingly, we reverse the court of appeals’ judgment and render a take-nothing judgment in favor of the defendants.
Notes
. See Cent. Ready Mix Concrete Co. v. Islas,
. The other defendants were Tarrant County Limited Partnership (thе owner of the warehouse) and CB Richard Ellis, Inc. (which managed the warehouse for the owner). Moritz also sued Regal Business Center, Inc., but nonsuited it before the summary judgments at issue here.
. See Khan,
.
. Islas,
. Khan,
. Khan,
.
.
.
. See Khan,
. Id. at 291; Dow Chem.,
. Khan,
. Johnson County Sheriffs Posse, Inc. v. Endsley,
.See Islas,
. Limestone Prods. Distrib., Inc. v. McNamara,
.
.
.
. Id. at 517.
.Dixon,
. See Lee Lewis Constr., Inc. v. Harrison,
. Mellon Mortgage Co. v. Holder,
. Joachimi v. City of Houston,
. Bryant v. Gulf Oil Corp.,
. Delgado v. Houghston, No. 08-99-00044-CV,
. Bill’s Dollar Store, Inc. v. Bean,
. See Thomas v. Intemorth, Inc.,
. See Anchor Cas. Co. v. Hartsfield,
.
. Delhi-Taylor Oil Corp. v. Henry,
. See Uniroyal Goodrich Tire Co. v. Martinez,
. Edward D. Jones & Co. v. Fletcher,
Dissenting Opinion
joined by Chief Justice JEFFERSON and Justice JOHNSON, dissenting.
The Court today abandons long-standing principles of premises liability law in its
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 control — contractual or otherwise — over 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.
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,
Koch Ref. Co. v. Chapa,
1999); Coastal Marine Serv. of Tex., Inc. v. Lawrence,
(Tex.1998) (per curiam); Clayton W. Williams, Jr., Inc. v. Olivo,
dinger v. Living, Inc.,
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,
The Court says that Moritz’s status as an indeрendent contractor is the determining factor. But if duty in these kinds of cases is to be determined on the basis of the plaintiffs 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, “[p]laeing 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.”
Moreover, contrary to the Court’s assertion, id. at 214, 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,
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 conditiоn 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.
The “no 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 оr 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 “no 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.
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 circumstanceswill 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.
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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....
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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.,
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 (plaintiffs 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,
Concluding otherwise, the Court today resurrects what Parker abolished by simply changing the question. That is, when the answer to “Was the defect concealed?” is “No,” the answer to “Did the plaintiff know/Should the plaintiff have known of the defect?” will always be “Yes.”
In an attempt to determine what Parker left behind after abolishing the no-duty doctrine, the Court misinterprets Dixon v. Van Waters & Rogers,
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 plaintiffs initial and separate burden to prove knowledge of danger on the part of the owner.
The Court’s employment of Delhi-Taylor Oil Corp. v. Henry,
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
Admonishing against too much reliance on Parker.; the Court farther argues that “duty 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
Ill
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 Plaintiffs Negligence When Plaintiff Suffers an Indivisible Injury
Plaintiffs negligence ... that is the legal cause of an indivisible injury to the plaintiff reduces the plaintiffs recovery in proportion to the share оf 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 foreseeability 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 protеction. 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 expectthat 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 imрortant 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 Mor-itz’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.
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 hеld 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
.
. 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.
. The Court's blanket assumption that all independent contractors are "special expertfs]” in every subject that may present a premises liability claim is similarly unsupported. See
. Cf. Restatement (Second) of Torts § 289 & cmt. e (1965) ("The 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.
. The Restatemеnt likewise demonstrates that the Court misapprehends what Parker left intact as a complete bar to a plaintiffs recovery. Immediately after explaining that a plaintiffs negligence cannot completely bar recovery, the Restatement — -just like Dixon — clarifies 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 defenses — such as contractual assumption of risk, immunity, privilege, statute of limitation, and certain statutory defenses under the Uniform Commercial Code — are based on other policy considerations. No reported decision has applied them as a percentagе reduction. They continue to constitute an absolute bar to recovery.
Restatement (Third) of Torts: Apportionment of Liability § 7 cmt. k (2000).
. See Planned Parenthood of Se. Pa. v. Casey,
. Halepeska,
. 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,
.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 wаs 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.
. See Ernest H. Schopler, Annotation, Modem 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,