Recently, a divided Texas Supreme Court issued a landowner-friendly opinion, ruling that landowners have no duty to warn the employees of independent contractors of open and obvious defects about which the employees already know. In General Electric Co. v. Mortiz, 51 Tex. Sup. Ct. J. 1030, 2008 WL 2404966 (Tex. June 13, 2008), the Texas Supreme Court majority of five justices not only reversed the Fort Worth Court of Appeals decision that held the landowner owed the employee of an independent contractor such a duty, but rendered a judgment that the plaintiff take nothing.

Arthur Lee Mortiz worked for an independent contractor that delivered General Electric products to customers. See Mortiz , 2008 WL 2404966, at *1. Every day for eighteen months, Mortiz drove his truck to General Electric's warehouse, which had a loading dock with two large doors. Id . Both doors were about four-and-a-half feet above the paved driveway. Id . One door had a concrete ramp extending down to grade level; however, the ramp did not have any guard rails. Id . On the day Mortiz was injured, he parked his truck on the ramp. Id . Two General Electric employees helped him load an electrical conduit into the bed of his truck, after which Mortiz alone secured the load with ratchet-type straps. Id . Mortiz then tried to add a rubber bungee cord, but the cord broke while he was leaning back to stretch it, causing him to fall off the ramp's side and fracture his hip, pelvis, and thumb. Id .

Mortiz sued General Electric and others, alleging that as owners or occupiers of the premises, they were liable for negligence arising out of a premises condition. Id . The trial court granted summary judgment for the defendants, but the Fort Worth Court of Appeals reversed and remanded on the basis that there were facts a jury needed to decide, a ruling General Electric appealed to the Texas Supreme Court. Id .

In evaluating Mortiz's premises-condition claim, the Supreme Court held that the duty to warn an employee of an independent contractor of open and obvious defects falls on the independent contractor, not the landowner. Id . at *2. The Supreme Court stated that placing 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, as the independent contractor controls the methods of its employees' work, including the equipment to use. Id .

The Supreme Court stated that General Electric had a duty to only warn Mortiz of concealed defects he might encounter and while they may have controlled his loading options, they did not control where he chose to secure his load. Id . at *3. Finding that the absence of handrails was obviously a pre-existing condition and clearly not a concealed defect, the Supreme Court held that “if owners and occupiers have no duty to warn an independent contractor of open and obvious defects, the defendants had no duty to warn Mortiz that the ramp he had been using for more than a year had no handrails.” Id .

The Supreme Court was careful to note that this decision does not overrule an opinion issued by the Court thirty years ago that abolished the “no duty” doctrine in all premises liability cases, as is suggested by the emphatic dissenting opinion filed in this matter. Id . at *4. The “no duty” doctrine said that if there were open and obvious dangers of which the invitees knew, or of which they are charged with knowledge, then the landowner owed them no duty to warn or to protect invitees. See Parker v. Highland Park, Inc. , 565 S.W.2d 512, 516 (Tex. 1978). The “no duty” doctrine was abolished by the Supreme Court in Parker , wherein the Court held that the reasonableness of an actor's conduct under the circumstances would be determined under principles of contributory negligence as opposed to acting as a complete bar to recovery. See 565 S.W.2d at 517.

In Mortiz , the Supreme Court distinguishes Parker as being much narrower in its holding, stating that it only abolished “a certain kind of no-duty defense, not all duty questions whatsoever.” See 2008 WL 2404966, at *3. As in any other negligence action, a defendant in a premises case is liable only to the extent it owes the plaintiff a legal duty and, as the Court notes, whether such a duty exists is a question of law for the court; it is not for the jury to decide under comparative negligence. Id . In doing so, Mortiz approves resolution of an “open and obvious” condition as a question of duty, and thus a matter of law for the court to decide, rather than a question of comparative negligence, which necessarily would be reserved for the jury.

Kenneth C. Riney is an associate in the general litigation section at Hermes Sargent Bates, LLP in Dallas.