March | 2015 | LEGAL WATERS

A How-To: Avoid injuries, minimize liability and protect guests from harm. (It’s generally considered poor etiquette if invited guests have to leave your home by ambulance.)

Just what does Texas law say when it comes to the liability of homeowners for conditions on their property? This area of law is well-established but often misunderstood.

Here are the basics:
First and foremost, realize that you (as the homeowner) are NOT an insurer…

Just because someone is injured on your property does not make you automatically liable. Sometimes best friend Joe’s common sense, good judgment and hand-eye coordination simply vacate the premises, leaving him destined to hurt himself through no fault but his own!

In general, the homeowner has to do something unreasonable to create liability. And just what constitutes an unreasonable act? That depends largely on the “classification” of the injured person when on your property, and the nature of the premise condition involved.

In Texas, there are three general classifications with different homeowner responsibilities and duties owed to each:

INVITEE: If the injured person was invited by the homeowner to the property and entered the premises for the “mutual benefit” of both, the homeowner can be liable for an injury caused by a dangerous condition on the property IF the homeowner either knew or “should have known” about it and failed to fix it or warn of it.

The homeowner has an obligation to the invitee to reasonably inspect their property to learn of hazards and then make them safe (fix the broken stair, fill in the hole by the walkway, pick up the banana peel, etc.) OR adequately warn of their existence (issue verbal warning, post warning signs, prevent access to an area, etc.).

Examples of invitees? Yard worker, handyman, delivery man, inspector, garbage collector and anyone you invite to your home to do business with you.

LICENSEE: If the injured person was not invited to the premises for mutual benefit, but had a general right to be there (think solicitor or best friend Joe coming over to borrow your lawn mower…again), the homeowner’s duty is less.

To the licensee, the homeowner has only an obligation to remedy or warn of “known” dangerous conditions. You do not owe a duty to a licensee to inspect your property for unknown hazards. Oddly enough (and to your surprise I bet), most social guests are considered licensees as are members of your own household.

TRESPASSER: If the person was injured while trespassing on your property, the homeowner has only a duty to avoid injury “willfully, want only or through gross negligence.” Now THAT is a very low standard. You practically have to booby trap your property to be liable for injuries sustained by a trespasser.

Regardless of the injured person’s classification, the injury must have been caused by a premise condition that posed “an unreasonable risk of harm.” And THAT will depend on the likelihood of injury from the condition and the utility of its existence (if any).

If the risk of injury from the condition is low or not reasonably foreseeable to the homeowner, no liability should be imposed. Coffee tables and kitchen countertops tend to have sharp corners, but that doesn’t make them unreasonably dangerous. And folks always have a personal responsibility to pay attention to things and to watch where they’re going. That’s a homeowner’s defense in these types of cases.

But the rules change considerably when children are involved…

If a homeowner has an “artificial condition” on the property that attracts a child, and the child wanders over without appreciating the danger and gets hurt, then that child is not considered a trespasser. The child is considered an invitee. Further, small children are generally considered invitees when in your home even if their parents are present as licensees.

So, take a look around your house and yard.

If you see something that could be dangerous and cause harm (particularly to kids), assume it will…and then find a remedy. No one wants an avoidable injury to occur regardless of the legal duties owed or not owed. Sometimes the homeowner needs a safety reminder and a thorough walk-through. And then again, sometimes smart people come over and just do dumb things.

Try to foresee the problem and head it off. Help protect Joe…from Joe, particularly since we all have a little Joe in us.

Stay safe out there!

-CW

Representing the Seriously Injured & Victims of Wrongful Death Since 1981.

Copyright © 2015. All rights reserved. Information contained in Legal Waters is intended to be informative only and does not constitute legal advice. Please consult an attorney if you feel you need legal counsel or guidance.

How Texas law bites back hard with liability for pet owners, and what you can do to help stay out of the legal doghouse.

Since there’s absolutely no way your gentle, loving and loyal dog could ever-ever-ever harm anyone, this article is about all those other dogs out there. But on the off-chance your adorable pooch has a really bad day (or feels some peer pressure), here’s what Texas law says about your liability should Fido turn Bito…

As an owner of a dog, you can be held “strictly liable” under the law (meaning automatically liable!) IF:

1) Your dog previously bit a person or behaved like it wanted to,

AND

2) You knew or had reason to know of your dog’s previous conduct.

That’s it!

That’s all the victim must prove to hold the owner of a biting dog legally responsible for the resulting injuries. And that’s not much, folks.

That’s what is so strict about “strict liability.” Under strict liability, all other facts and circumstances are pretty much irrelevant with one notable (and sometimes important) exception. The dog owner can use the defense of “assumption of the risk.” This means that IF the victim voluntarily exposed him/herself to a danger he/she knew and FULLY appreciated, the owner is not liable. But, the dog bite victim would have had to truly known Fido could become Bito. In other words, the victim fully appreciated the risk of what Bito could do and then chose to hang with him anyway.

But that’s not typically the situation in dog bite cases. If the victim did not fully understand the risk involved because of his/her age or lack of information, experience, intelligence or judgment, this defense does NOT apply in strict liability cases.

But wait, there’s more!

If the victim can’t prove Fido had a biting past or that the owner was aware of it (and therefore strict liability does NOT apply) there are ways a victim can still hold a dog owner responsible. For example, the owner can be sued for “negligence.” In a simple negligence case, the focus is more on the conduct of the owner with the allegation being “the owner failed to exercise reasonable care to prevent the animal from injuring others.” In this type of case, it’s not necessary for the victim to prove the dog previously bit someone or acted like it wanted to. There are more defenses available, however, to the owner in this type of case. The owner can claim, for example, the victim caused the incident by teasing or taunting the animal.

Dog bites are often difficult to prevent. Dogs act instinctively at times without warning…ALL dogs. Know your dog and be mindful of his/her surroundings. You can most often determine his environment and thereby his exposure to perceived threats. And keep your dog leashed at all times when in public. The general public deserves no less, and in most places local ordinances require it.

Overall, the law in Texas is tough on dog owners. That’s not going to change. If anything, our laws might get even tougher through a comprehensive statewide statute (something we don’t yet have).

Stay safe out there!

-CW

Representing the Seriously Injured & Victims of Wrongful Death Since 1981.