*1 L.P., Petitioner, OPERATIONS, Respondent. PERRY, David
No. 05-0030. Texas.
Supreme Court of
Argued Jan. 2006. 27,
Decided Feb. P.C., Zbranek, Firm,
Zeb D. Zbranek Liberty, Petitioner. *2 result, Jeffrey
Brett S. Thomas and T. Roe- guard. As thrown buck, Thomas, PLCC, Roebuck & P. Marc into the roof the truck’s cab and injured. Fuller, Beaumont, Henry, Henry Perry & already for had driven the road at least Respondent. day four times that without injury, and
admitted he knew the hole was there. He
opinion
Justice GREEN delivered the
miles-per-hour
was also aware
a fifteen
Court,
in which Chief Justice
speed
sign
limit
that TXI had posted near
JEFFERSON,
O’NEILL,
Justice
Justice
the hole.
nevertheless claimed
WAINWRIGHT,
BRISTER,
Justice
negligent
TXI
failing
to warn him
joined.
Justice JOHNSON
existence of a road condition that it
dangerous.
knew was
unpaved
potholes
Rural
roads with
guards
quite
the cattle
common in this
A jury found that
and TXI were
case,
In
state.
an
this
invitee truck driver
negligent
both
at fault.
equally
As a
through
drove
one of those
sever-
result,
judgment
the trial court entered a
times, claiming
al
injury on one of his last
Perry,
reducing
jury’s damage
for
trips, and
sued
landowner for its fail-
percentage
award
of fault. TXI
adequately
ure to
warn of
danger.
appealed, claiming
posting
speed
premises
The
not challenge
owner does
sign discharged
limit
its
to warn Per-
warn,1
whether it had a
but claims
ry
dangerous
road condition. The
miles-per-hour speed
instead that a fifteen
of appeals disagreed
court
and affirmed
—
sign
pothole
limit
near
was an
the trial
judgment.
court’s
S.W.3d
adequate warning as a matter of law. We
-,
Court,
of the a mat- road condition as I ter of law.2 Operations, LP, owns and operates II Pit responsible Dolen Sand and is for maintaining unpaved occupiers connects Premises owners Perry, pit highway. premises to the David keep owe their safe for Campbell Ready Mix, reg- truck for against driver invitees conditions that known See, on e.g., ularly drove back and forth the road to of harm. pose unreasonable risks Homes, Daenen, load and CMH Inc. transport materials connection (Tex.2000). with his Campbell. trip duties for On “take road, down the his vehicle struck a un- reasonably prudent hole whatever action is down, argue appreciat- 1. TXI does not that the slow saw did unreasonably dangerous premis- constitute an ed the which he of the condition in condition, es or that the condition was by crossing injured condition four Moritz, and obvious. See Gen. Elec. Co. sustaining prior injury on times (Tex.2008). Accordingly, crossing? fifth purposes opinion, we of this will assume TXI, According issue "submission of the duly there was a to warn. (and negligence any damages) was attendant discharged "TXI as a error” because presents single following 2. TXI issue: by posting per matter of law 15 mile hour per sign Is a 15 mile hour sign.” speed limit adequate warning when evidence is sign, saw heeded (Tex.Civ.App.-Waco ref d writ the circumstances to reduce or elim- der n.r.e.) (holding that an had not sat- the unreasonable risk from con- owner inate *3 Stores, Inc., Safeway duty v. to drivers a slick dition.” Corbin isfied the warn of “ (Tex.1983). The 295 exis- and sign 648 S.W.2d with a ‘SLOW muddy and question law duty of this is a of tence the sign”). inadequacy a The of ‘35 MPH’ Moritz, court. at 217. the S.W.3d by the evidence that sign supported is owed, duty premises such a is the When following Perry sign’s the instruction was occupier adequately or must either owner course, an injury. the Of time of the or dangerous of condition make warn providing adequate an warn- alternative reasonably v. the condition safe. See State the repair been for TXI to ing would have Williams, (Tex.1996) 940 S.W.2d the condition reason- pothole so as to make curiam). appeal, undisputed On it is (per a of See ably safe as matter law. premis- TXI’s that was an invitee on Williams, at 584. But the 940 S.W.2d es, hole in that knew about the the record not reflect that TXI took this does road, that a the hole constituted action. condition, attempt that TXI not did The notion dissent takes issue with the repair the hole. also admits that he potholes pose roads unrea- rural about hole and knew the had encountered of harm to 18-wheel truck sonable risk injury. it several times before his But common, drivers because are attempt argue TXI does not it obvious, warning no Perry’s no of care of owed because necessary. about should even be them hole voluntary conduct because the was concedes, must, it But even the dissent as Rather, TXI argues obvious. issue is not before That us. it discharged posted was when so, course, not it. being we do decide speed sign. limit Instead, must assume we In premises liability case such The view seems warn exists. dissent’s this, the is negligence defendant’s de warning it be that because concludes by asking termined whether defendant necessaxy, any warning is really reasonable care to reduce or “exercise[d] course, view, adequate. complete- That prem to eliminate the risk” created duty. If a ly discounts the existence Corbin, 296; ises defect. 648 S.W.2d owed, is re- adequate warning Park, Inc., Highland see also Parker quired. agree the dissent that We with (Tex.1978). Negligence necessarily not mean speed sign does commonly unless the question of fact expect posted driver should complete establishes a absence of evidence be a under all circumstances. safe Here, a matter it negligence as of law. reflects evi- Regardless, recoi’d some warning might not. A “be careful” does not ade- dence that the here was premises evidence that the owner be some quate to warn negligent, but is not conclusive was a risk at a pothole presented even in a such as this situation where result, posted limit. As a slower than the sign only general in speed-limit properly could concluded juiy have struction; it neither informed the driver adequately warn sign that TXI’s did identify did it generally, road hazards nor dangerous condition. Peny says hazard that TXI now particular appeals court of judgment The sign against. was meant to warn See McBride, 552, 554, affirmed. State filed a dissenting
Justice HECHT right guard, at the cattle it was opinion, in which Justice MEDINA and always right a little bit worse there.” The WILLETT joined. Justice guard which referred was to- road, ward end of the not far from the HECHT, joined by Justice Justice pit sand and scale house. The road up to WILLETT, MEDINA and Justice guard the cattle ran for half straight dissenting. guard only mile so. The cattle morning hot, clear and the sun plainly truck wide and visible. Stretched brightly shining, as 18-wheeler sand- *4 indolently guard, in of the front cattle as and-gravel rough truck lumbered along the lay large pothole. one entered plant, the dirt highway road from main over to the day accident, The of Perry’s pothole the the pit. Dolen sand Behind the sat wheel (other days nine deep was inches it was Perry, David years, For seven he had deeper) enough and wide truck been driving rigs Campbell for Concrete & not and get through could avoid it still the Materials, day, L.P. job his haul- That was guard. cattle TXI’s ing pit Campbell’s sand from Dolen the mph, although was 15 trucker ready-mix plant about hour concrete not empty could drive an truck even 10 away. mph through pothole being the without Operations, TXI L.P. Dolen owned the risking injury. bounced around the cab and pit sand and the three-mile dirt maintained fact, in But no one injured, was ever. road that ran highway through from guard Scores crossed the cattle truckers facility. woods Trucks would injury, except thousands times without load, enter pit, weigh the sand at the scale May. for one fateful in day house, way and then they leave came in. road enough The wide for trucks was guard first crossed the cattle in each pass coming going. other empty little 10:30 his truck a before a.m. Eight year to twelve thousand trucks Casey, He running was who was with driv- day Perry went in and out. The ing the truck of him. The right ahead two injured, scales, seventy crossed the trucks left, loaded, weighed, crossing trucks thirty-seven of by them driven twelve guard cattle their way on out. About truckers, Campbell by Perry three himself. they hours Casey two later returned with heavy weighed The 18-wheelers —each lead, in again crossing guard the cattle 30,000 pounds 80,000 some empty and before, their in way as both on and on pounds road, hard on loaded—were way p.m., they their out. At 3:00 were especially when wet. The road was back, this time with the lead. At rough as a scrub board and filled with guard, pothole the cattle he hit the going TXI potholes. graded the regularly, truck, mph jam- and bounced the though frequently enough to suit ming his the roof of cab. head into He drivers, complained who often about how Casey, radioed back to who had seen Per- was, bumpy it to little avail. TXI encour- bounce, ry’s telling truck him what had down, aged especially truckers to on slow on to happened. The two continued curves, signs blind posting loaded, plant, weighed, and left without mph mph from along the road. further incident. Casey, driver, Jeff a Campbell testified: report injury much did not sev- “We ran road so kind of we were, [rough] days knew where the areas but eral weeks. Three before two- rare, run, menacing kinds that lure year have of those statute limitations would danger. into injuries.1 he sued TXI for his unsuspecting travelers permeated potholes that the dirt road Generally exception I discuss —with ordinary all pit sand Dolen were person below—a knows that condi- who testified, Campbell As one driver variety. tion of his an unreasonable property poses “all road”. up down were must ordinary risk harm use invitees guard about the one Nothing to protect danger, care them from either of harm greater risk posed significantly making them or adequately contrary, than of the To the any others. reasonably condition safe.2 The Court there, usually because holds that there in this is evidence case not, driver, discharge of one that TXI failed to this did the words Perry. respectfully disagree. you”, potholes I are some- up on “sneak[ ] do, times to be care- wont drivers knew I challenge, does so therefore ful, careful, necessarily as they and were assume, must in dirt roads *5 the to cross narrow cattle slowed over leading pits sand present an unreason- Casey road guard. testified that the was experienced able risk of harm to 18-wheel- dangerous: not the was “whenever This, sand-and-gravel er haulers. of bad,” said, it he all knew slow “we course, preposterous. pock Potholes the driver, Campbell Another asked down”. pot- surface the If world. civilized why not the at the pothole but he did consider yawning capable holes—all chasms suddenly up an swallowing guard dangerous, entire vehicle— cattle stated: posed unreasonable risk of harm to dangerous? I it Why consider not would anyone, let alone experienced and reason- mean, wasn’t, dangerous, I it wasn’t ably drivers, careful whole swaths civili- dangerous. no. It was a It was not zation would have to be closed off hu- just right, yeah, hit it pothole; you but if man traffic. Manhattan be the would first jar you. it would down, town, city, to shut but no or village escape. planet, ground would Across the say, argue I TXI does not But as transportation brought would be halt. pothole pose did not an unreasonable Commerce would cease. The end could harm, argument risk so I turn by be posting adequate averted warn- warning, TXI its does make: ings. Signs city Warning! at Pot- limits— limit ade- mph speed sign, maximum was hardly adequate. holes!—would Each quate under the circumstances. The pothole require warning would own 15 mph that a posted Court seems think sign. if Even resources could available speed person safely that a can limit means supply signs, enough warnings that unrea- mph drive to 15 no matter After up what. everywhere provide sonable no Perry sued, restaged accident us- TXI warning anywhere particular. that it is Perry driving ing the same truck was harm, day injured. The test driver hit pose do a risk of he was
Potholes Perry like the had described question. simply pothole But risk is head in the cab. So pothole mph unreasonable one unless is one and hit his trial, Perry the evidence negligent, At TXI I have summarized contested whether had claimed, Perry. most favorable to injured been whether it he oc- asserted, day curred and whether on guard. Transp. Dep't Highways there near the cattle Pub. was 2. State & (Tex.1992). Although jury Payne, found both if speed circumstances, limit sign means what and there is no more does, Court to think it then argument seems basis for simply because the support jury’s speed some evidence to finding posted Indeed, limit was TXI. by inadequate. that the Casey, Campbell driver with, running testified speed that the limit But is not speed what a maximum signs him only just told “more or less to be sign provides limit means. Texas law watchful”. thought testified that he speed [legal “[a] excess of limits] is speed signaled that a slower prima speed facie evidence that the is not safe, speed but tellingly, he could not and prudent speed reasonable and that the recall the speed what limit was at is unlawful.”3 The is not true: inverse guard, testify and he did not that he speed not, legal prima below the limit is sign looked over facie, prudent. To reasonable the con thought himself, “I can drive fast that, trary, provides regardless Texas law safely, no matter what.” any law, maximum limit set course, ... operator may feasible, “[a]n not drive a It vehicle was not for TXI to speed greater at a than post speed is reasonable and limits that under were safe all prudent under the and having conditions conditions because road conditions were regard for actual potential constantly changing. hazards When road was existing”.4 then uniformly graded, rained, Courts hold it was smoother. itWhen speed may a vehicle’s be excessive the road surface was worse. 40-ton *6 even though posted constantly below limit.5 trucks over the lumbering argue could a 15 mph speed tore into surface. A speed safe on a by limit posted public dry, authorities licensed flat road would not safe on be a up one, him to drive mph regardless rough, to 15 wet and no one could reason- 545.352(a). § drive under the same or circum- similar Tran'sp. 3. Tex Code speed may stances. A be held excessive un- 545.351(b)(1). § 4. Id. although der the circumstances below the ‘le- limit.'"); Kana, gally posted Seay v. 346 See, 928, e.g., Burgett, Hokr v. 489 S.W.2d 384, 1961, (Tex.Civ.App.-Houston S.W.2d 386 1973, writ) (Tex.Civ.App.-Fort 930 Worth no writ) ("Even [appellant] no if were not ex- may ("Speed though even be excessive it is limit], speed ceeding it he was under the [the. posted speed Although below the limit. a ordinarily not to drive faster an may exceeding than speed motorist not be lim- it, prudent person ordinary he is under to drive no faster than in the exercise person ordinary prudence under the same care drive would under the or similar same (citations Reid, or similar circumstances.” circumstances."); omit- 320 Vardilos ted)); Constructors, Fitzgerald v. Russ Mitchell 419, 1959, (Tex.Civ.App.-Houston S.W.2d 423 Inc., 189, (Tex.Civ.App.- 423 S.W.2d 191 writ) ("The [appellant] no fact that was driv- 1968, n.r.e.) writ Houston ref’d [14th Dist.] ing speed per below the limit of miles hour ("The [appellant] driving fact below ... relieve him common does not of the law speed presumed per limit of a 30 miles operate speed his vehicle at a at which ... of the hour does relieve her common prudent ordinarily person in the exercise operate speed law her at a vehicle ordinary operate care would vehicle un- ordinarily person prudent which an would circumstances.”); der the same similar operate a vehicle under same or similar Antwine, (Tex. Morrison circumstances.”); Billingsley v. Southern Pac. 1932, writ) ("A person Civ.App.-Waco may Co., (Tex.Civ.App.-Tyler guilty negligence contributory negli- be n.r.e) ("Although ref'd writ motorist gence operating his car at excessive rate may exceeding legally posted not be speed though even ... the maximum limit limit,’ nevertheless, speed under the exceeded_”). as fixed statute is not ordinarily prudent faster drive no than an person ordinary exercise of care would injury, single of a slowly no evidence to drive as on there is ably expect truckers himself Perry’s. And except had to on good stretches of road as in five matter, guard four times crossed the cattle practical As a bad stretches. day he incident the same only ones it hours warnings gave were the without injured. speed slow down to a give: could actual road conditions to be as- allows concludes that reasonable The Court sessed. TXI’s about whether disagree minds can warning of the Moreover, adequate actually speed gave limit speed signs TXI’s when guard pothole cattle dangers of the through pot- Truckers drove worked. accident in thousands there was one incident. Had driven holes without could no reason- time, warning What crossings. the first noted up guard to the Here, the person inadequate? to able think speed sign, thought the 15 mph A “be careful” vague. is a little sign speed, himself that the assured safe Court do, says, be- warning and been in- will not Court through pothole, driven sign general.6 that the cause it is too jured, argue he could least not, according to the sign inadequate, according misled him. But that is “necessarily him, Court, it did not Perry, though like all the even happened. what expect mean the other truckers on the road to the Dolen driver under all circum- could limit to be a safe pit, bumps sand slowed to where the stances”,7 “identify the it did not safely. Nor because navigated be evidence sake, goodness’ think- hazard”8 For any particular driver drove the road ever old reason, plain hazard” was ing, contrary “particular that the law n pothole, ocean. safe, overhanging cliff regardless of the not a posted speed was site-specific, signs In all of So should circumstances. of the thousands *7 something Maybe like: guard, per pothole? the cattle one times truckers crossed Scores, hundreds, have been maybe would this road alone.
required on one short satisfy the would not Court: probably
This 8. Ante
6. Ante at 765.
7. Ante at 765. preceding image
Editor’s Note: The contains the reference for footnote 9. Since unpaved “[r]ural roads long ago, argument with over-reads Par- guards quite common in this ker. state”,10 as the acknowledges, Court Parker, In elderly lady visiting cannot help why any but wonder friends in an upstairs apartment left after at all required. warnings But if must be fell, attempting dark and to descend an given, owners should be told straight out unlit stairwell. She sued the owner of the adequate, what is so can ensure safe- apartment complex, alleging that the dark ty and liability. avoid On this rather im- an unreasonably dangerous stairwell was portant subject the nothing Court offers condition. The owner countered that it helpful. guess I adequate we’ll know an owed her no of care because the warning when we see it. in open darkness stairwell If required TXI was rough warn of rejected argument, obvious.12 We road, conditions on I think warnings holding liability should be determined gave adequate were as a matter of law. principles contributory negligence under reason, There is also another besides the comparative responsibility.13 potholes posed fact that the no unreason- harm, why able risk of no warning no-duty argument in the flaw required: open road conditions were and Parker was that the stairwell was made no Perry argues obvious. Parker v. dangerous by less the fact that the dark- Park, Inc.,11 Highland plaintiff we discarded ness was and obvious. The principle that there is no caution, warn of and her hosts all tried to exercise *8 conditions, open and obvious descending together slowly even when awith flash- fully apparent the risk of light, plaintiff anyway is and but the fell because avoidable, plaintiffs circumstances, a step.14In because failure to of an unseen such injury open premises avoid due to an is not from lia- obvious owner excused condition than bility merely is no more one factor to be the risk of danger because comparing taken into account in open and as- was and obvious. The obviousness of sessing the responsibility plain- plaintiff of both the the risk did not allow avoid rule, however, explained tiff and the defendant. As it. a general we It remains 513, photograph supan- 9. Unattributed at found 12. Id. at 514. (http://www.supanet.com/motoring/ et.com car_gallery/gallery/939/l/). 517, 13. Mat 521.
10.
Ante
764.
14.Id.
514.
(Tex.1978).
11.
771 does, that a landowner argue, that a as plaintiff that must defendant show duty explained driving breached a of care. As we truckers to be careful must warn years only a few after Parker was decided: on a dirt road through potholes Parker, “no-duty,” diffi- safely The term as used in and traversed without obvious oddity uniquely to the referred had culty. negli- Texas developed in to confuse Corp.,16the Lugo v. Ameritech Michi- In gence plaintiff It meant that a had law. gan rejected pedestrian’s Supreme Court negate knowledge his own burden to lot parking in a claim that danger. appreciation and own of a his unreasonably dangerous, holding plaintiff rule not does have no the condi- duty owed her because owner findings obtain burden to dis- obvious: open tion and not, however, prove fault does own open dangers and obvious [Tjypical from plaintiff mean that a is excused (such ordinary parking in a duty proving defendant had a and lot) uniquely high give [a do not rise to plaintiff breached it. A does have [T]he likelihood of condition harm].... prove findings and obtain burden to and, thus, and cannot open obvious knowledge apprecia- that he lacked liability against form the basis of however, danger; must, tion aof premises possessor.17 prove duty the defendant had a it.15
breached
possessor
other
hold that the
Most
states
no
to warn of
premises
open
has
thing
reject
argument
It is one
any danger
and obvious conditions when
apartment
no
see
owner has
fully
appreciated
can
averted
guests
safely
it that tenants and their
can
person.18
exit
This is the rule of
premises;
quite
another
reasonable
ordinary
Rogers,
upon
15.
use
his own senses. He
Dixon v. Van Waters &
533,
curiam) (cita-
(Tex.1984) (per
required
give
533-534
to the invitee notice
omitted).
danger.");
Fleming
tion
v.
of an obvious
1308,
Garnett,
77, 646 A.2d
1312-
231 Conn.
512,
(2001).
16.
Mich.
629
464
N.W.2d 384
(1994) (landowner
no
to warn
has
1313
which
invi
invitee
condition
512,
17. Id. 464 Mich.
the Restatement and is still the law Texas. of Bowles, 568, 193, Lloyd readily v. Md. reasonably 260 273 one would A.2d observable that ("If discovered.”); (1971) injured person expect 196 knew or them to be v. Carrender 178, Fitterer, dangerous 120, should have known of the tion, condi 503 Pa. 469 A.2d 123-124 right recovery (1983) is no ... (adopting Restatement(Second) of Torts Savannah, ruling being 343A(1) (1965)); reason for the City § latter Coln v. of liability 34, presump (Tenn.1998) (same), is based on a [landowner’s] 966 40-44 S.W.2d City greater knowledge tion that he has concern grounds by overruled on other Cross v. of ing dangerous (Tenn.2000); condition than the invi Memphis, 20 642 Hale v. tee.”); Shaw, 201, Beckstead, 263, O’Sullivan v. 431 Mass. (Utah 2005) 116 P.3d 265-270 951, (2000) ("Landown 726 N.E.2d Turner, 954-955 (same); Supply v.Co. 213 Tazewell duty open ers relieved of warn 93, 347, (land (1972) Va. 189 S.E.2d 349-350 dangers premises and obvious on their be duty alleged owner owes "if warn reasonably cause it is foreseeable open and condition was obvious to (as exercising presumes) visitor the law rea person exercising reasonable care for his safety sonable care for own would suffer Virgin safety."); own v. Water Monk Islands & hazards."); injury from such blatant v. Auth., Riddle 1381, (3d Power 53 F.3d 1384-1388 85, Corp., McLouth Steel Prods. 440 (con Mich. 485 Cir.1995) law) (applying Virgin Islands 676, (1992) ("[WJhere N.W.2d 680-681 cluding Restatement(Second) Torts dangers are known to the invitee or are so 343A(l) (1965) § Virgin consistent with is Is might reasonably obvious that invitee fault); adoption comparative lands’ Tinca them, expected to discover an invitor owes no Empire Zoological ni v. 124 Inland Soc v. duty protect or warn the invitee unless he 121, 621, 630-631’(1994) Wash.2d 875 P.2d anticipate despite knowledge harm Restalement(Second) (adopting Torts invitee.”); it on behalf of the v. Richardson 343A(1) (1965)). § 1, 309, Corvallis Pub. Sch. Dist. 286 No. Mont. jurisdictions open A few have held 748, (1997) (landowner 950 P.2d 753-756 ness and obviousness the condition is rele foreseeably "persons owes no to warn vant to whether the landowner breached upon premises physical harm caused invitee, duty to the but not the mat threshold by any activity to them or condition on the ter of whether the landowner owed a danger premises whose is known or obvious warn of the See v. condition. Ariz. Markowitz them, possessor unless the should antici Bd., 352, 364, Parles P.2d 367- 146 Ariz. 706 pate despite knowledge the harm such statute; (1985), abrogated part by 368 obviousness.”); Lohaus, v. Tichenor 212 Neb. Baxter, 242, Smith v. 796 N.E.2d 243-245 218, 629, (1982) (adopt 322 N.W.2d 632-633 Niehaus, (Ind.2003); v. Harris 343A(1) ing § Restatement(Second) of Torts 222, (Mo.1993). 225-226 Jakob, (1965)); 165, Tagle v. 97 N.Y.2d 737 jurisdictions Some other have concluded 331, 107, N.Y.S.2d 763 N.E.2d 109-110 with com this rule is inconsistent their (2001) ("We long have held that landowner statutes, Dick, parative fault see v. Koutoufaris open has no warn of an and obvious 390, 1992); (Del. 604 A.2d Harrison 395-398 danger.”); Wrenn v. Hillcrest Convalescent 588, 1321, Taylor, v. 115 Idaho 768 P.2d Home, Inc., 447, 483, 270 N.C. 154 S.E.2d (1989); Tharp Bunge Corp., 1323-1329 v. 641 curiam) (1967) ("However, (per 484 defen 20, 1994); (Miss. So.2d 23-25 Woolston plaintiff, dant was under no to warn as Wells, 144, 548, 297 Or. 687 P.2d 147-150 invitee, of an obvious condition or of a statute, (1984), Vigil or another state see plaintiff equal condition which had 322, Franklin, (Colo.2004) 103 328-332 P.3d superior knowledge.”); Johanson v. Nash (holding that Colo. Rev. Stat. Ann. 13-21- § Co., 271, (N.D. Finch 216 N.W.2d 276-278 doctrine). preempted 1974) (adopting Restatement(Second) of Torts Lastly, some courts hold whether a 343A(1) Co., (1965)); Armstrong Buy § v. Best danger open merely and obvious 79, 1088, 99 Ohio St.3d 788 N.E.2d 1089- See, e.g., factor to v. La. be considered. Pitre (2003) ("Where Univ., 585, (La. Tech 673 So.2d 590-591 obvious, a landowner owes no of care to 1996); Corp., Klopp N.M. v. Wackenhut lawfully premises.”); on individuals Ni 293, (1992); 824 P.2d Rockweit 409, Packer, (Okla. cholson v. 512 P.2d Senecal, Donohue v. 197 Wis.2d 1973) ("It equal can be stated with force that *10 (1995). N.W.2d protect the invitor has no the invitee ("A apparent dangers § from are which so and 19. Restatement (Second) of Torts respect, holding of dirt With the owners inadequately warning liable for
roads
sand-and-gravel 18-wheeler truckers how through potholes
to drive mocks of law sense.
premises liability well as common TXI, judgment
I would render for and
accordingly, I dissent.
In re Joanne LOVITO-
NELSON, Relator.
No. 08-0482.
Supreme Court of Texas.
Feb. manner, subject possessor liability philosophical of land is but the remains for rule physical by the same. Restatement harm caused his invitees (Third) of Lia- Torts: 18(a) if, if, (a) (Proposed § only bility condition land Physical on the but he for Harm 1, 2005) (“A Final Draft No. whose by or defendant knows the exercise reasonable care of condition, physical can conduct creates risk of harm would discover the and should re- failing to by fail to exercise care reasonable that it alize involves unreasonable of risk 1) danger invitees, warn of the if: the defendant knows (b) expect harm to such and risk; (a) of has reason know: on the condition land whose (b) encountering those will be them, risk pos- is known or obvious to unless the it; 2) warning might be unaware anticipate despite sessor should the harm reducing physical in the risk effective obviousness.”); knowledge such see also harm.”); (“Generally § also cmt. f see id. § 343A f cmt. Restatement(second) of Torts appreciated dangers. neg- A defendant can be (1965) ("There are, however, cases which ligent failing only if for to warn the defendant possessor of land can and should antici- potential can victims knows or foresee pate that will condition cause Accordingly, will be unaware the hazard. physical notwithstanding harm the invitee generally obligation is no to warn of danger. its known or obvious In such cases appreciated by persons that should be hazard possessor relieved of intelligence experience within whose reasonable care which owes to the invitee range. the normal When the risk involved protection. duty may require for his This him the defendant's conduct is encountered invitee, warn or to take other reason- many persons, may foreseeable him, steps protect against the able known lacking the some fraction of them will be activity, posses- or obvious condition or if the experience ap- intelligence or the needed to expect has the invitee will sor reason warnings preciate require But to risk. harm.”). physical nevertheless suffer produce persons such the sake of such would proposed warnings draft profusion Restatement as to devalue those (Third) 18(a) warnings serving important § func- approaches ques- a more Torts tion."). danger in a tion of an more obvious