Introduction. The San Antonio Court of Appeals has held that a property owner’s personal injury premises defect claim sounded in negligence rather than premises liability, even though the injuries were not caused by a contemporaneous activity of the contractor allegedly at fault. Arredondo v. Techserv Consulting & Training, Ltd., 567 S.W.3d 383 Tex. App.—San Antonio 2018, pet. filed).

Background. In this case, an electric company entered into a contract with a utility contractor for the contractor to perform services that included replacing utility poles for the electric company. In 2013, the utility contractor, pursuant to a work order from the electric company, removed a utility pole from the plaintiff’s property. The engineering firm retained by the electric company to inspect the utility contractor’s work, marked the work completed on December 2, 2013. On July 30, 2014, the plaintiff property owner stepped into a hole while mowing her grass, causing her to fall and injure her knee and back. The plaintiff sued the utility contractor, the electric company and the engineering firm.

This article only addresses negligence and premises liability issues concerning the utility contractor. The utility contractor filed a motion for summary judgment with the trial court requesting that the court find as a matter of law that the contractor was not liable for causing the injuries. The contractor argued in its motion that since this was a premises defect case then plaintiff’s claim sounded in premises liability rather than ordinary negligence. The significance of this is that in order to prove a premises liability claim one of the elements that the plaintiff would have to prove is that the contractor had knowledge (knew or should have known) of the existence of the defect at the time the injuries were sustained. This element does not have to be specifically proven to support an ordinary negligence claim. The trial court granted the contractor’s motion for summary judgment. The plaintiff property owner appealed the trial court’s ruling to the San Antonio Court of Appeals.

The San Antonio Court of Appeals overturned the summary judgment that had been rendered in favor of the contractor. The appellate court discussed the general rule that in order for a premises injury claim to be governed by ordinary negligence principles, the plaintiff’s injuries must be the result of the contemporaneous negligent activity of another. When the injuries are the result of the property’s condition, then premises liability principles apply. However, the court stated that a premises condition may also arise from another’s creating the dangerous condition. “When the property’s dangerous condition is caused or created by another, an independent claim against the other may lie in negligence.”  Arredondo v. Techserv Consulting & Training, Ltd., supra, at p. 392.

Court’s holding, The San Antonio Court of Appeals held that, since the plaintiff’s allegations were based upon the contractor creating the dangerous condition, the plaintiff had alleged a claim that sounded in ordinary negligence rather than premises liability. Thus, fact issues existed as to whether the contractor’s negligence proximately caused plaintiff’s injuries. As a result, the court of appeals reversed the summary judgment previously rendered in favor of the contractor as to plaintiff’s negligence claim, and remanded that claim to the trial court for further proceedings. Stay tuned–it appears that a petition for review has been filed with the Texas Supreme Court.

Lessons learned. A contractor performing construction or other premises work should take steps to protect themselves from exposure to liability. This  could include maintaining a log of the progress and completion date of the work, as well as photographing the condition of the premises upon completion. If the contractor has no choice but to leave the premises in a potentially dangerous condition, then proper barricades and warnings should be put into place. The contractor performing the work could also give written notice of the potentially dangerous condition to the party hiring the contractor and to the owner.