As discussed in my previous articles regarding premises liability, a landowner has a duty to keep his premises in a safe condition. A premises liability case is a claim brought by an individual who alleges injury by a condition on another individual’s property. The injury must have been caused by a condition on the premises. Another option is that the injury must have been caused by an activity that occurred on the premises at an earlier time, but was not an ongoing activity at the time of injury. The particular duty that a defendant owes a plaintiff in a premises liability case depends on the Plaintiff’s status at the time of injury. In order to successfully maintain a cause of action for premises liability, a Plaintiff must establish that he was an (1) invitee; (2) licensee; or (3) trespasser at the time of injury. A negligent activity claim, however, requires that the Plaintiff be injured by or as a contemporaneous result of the activity itself, as opposed to a condition created by the activity. The Plaintiff’s injury must be a result from the defendant’s contemporaneous activity. In short, the Plaintiff must prove that he/she was injured as a result of the defendant’s activity (“commission at the time of injury”) versus your typical premises liability claim that focuses on the defendant’s failure to make the premises safe (“omission at the time of injury”).
Let’s discuss negligent undertaking. This is an interesting theory with an ironic twist. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if:
- his failure to exercise such care increases the risk of such harm, or
- the harm is suffered because of the other’s reliance upon the undertaking.
Of importance here is establishing that the defendant acted in a way that requires the imposition of a duty where one did not initially exist. Consider the example of smoke alarms in apartment complexes in Texas.
A standard apartment complex lease requires that the owner provide the tenant with working and operable smoke alarms at the time that the tenant signs the lease and first moves into the apartment unit. THAT’S IT. Nothing further is required by the owner by way of subsequent maintenance or protection from a smoking alarm standpoint. There is no legal duty to periodically check the smoke alarms. There is no legal duty to periodically test the smoke alarms. There is no further duty at all. It is up to the tenant to report any problems to management regarding any issue with the smoke alarms. This is a scary proposition since your typical apartment tenant has no experience in whether smoke alarms are operable, broken, in need of repair, or in need of replacement. There is a huge caveat, however, regarding this particular situation. If the owner takes it upon himself to periodically check the smoke alarms without request (gratuitous), the duty potentially changes.
Assume that the owner is called to fix a refrigerator and while in the tenant’s unit, he sees the smoke alarm on the floor. He then places the smoke alarm back into its original position without checking whether it had batteries or whether the batteries worked. The tenant sees the owner doing this and assumes all is well. A fire ensues in the coming weeks and it is determined that the smoke alarm in question did not have batteries and the tenant dies in the fire. In essence, the owner’s gratuitous action put the tenant in a worse position than he was before. The harm to the tenant was increased because of the owner’s partial performance of not checking whether the smoke detector worked or had batteries. In the alternative, the tenant’s reliance on the owner’s actions caused him to forgo other opportunities to get the smoke detector fixed or inspected by others.
This is an interesting example, but sadly, is based on a true and tragic real-life situation that resulted in the deaths of four individuals, including two babies. Under this situation, the owner was held liable based on a negligent undertaking theory. It is important to consult with an attorney if you have been involved in a fire.
Written by:
Joey G. Gonzalez, Jr.
Watts Guerra LLP
4 Dominion Drive, Bldg 3, Suite 100
San Antonio, Texas 78257
Phone (210) 447-0500
© Watts Guerra LLP 2015
