The Texas Supreme Court in 2015 issued an opinion that should make it easier for defendants to win summary judgment in premises liability cases. In Austin v. Kroger Texas, L.P. (2015), the Court clarified that an invitee’s awareness of a dangerous premises condition does not bear on the issue of contributory negligence, but instead relieves the landowner of a legal duty to warn the invitee of the condition. This holding effectively reinstates the “no duty” doctrine in Texas, which the Court had abolished nearly forty years ago in Parker v. Highland Park, Inc. (1978).

Under the rule announced in Austin v. Kroger, a landowner generally does not have a duty to warn or protect an invitee against unreasonably dangerous premises conditions that are open and obvious or known to the invitee. Establishing that a condition is open and obvious can be difficult. Some judges may find that a condition is open and obvious as a matter of law, while others may submit the issue to a jury. Establishing that the invitee knew about the condition, however, is more straightforward. For example, a plaintiff’s deposition testimony that the plaintiff saw the dangerous condition before the plaintiff got hurt can be enough to defeat the claim entirely.

The new no-duty rule has two exceptions. The first is the criminal-activity exception, which applies when a dangerous condition results from the foreseeable criminal activity of a third party. The second is the necessary-use exception, which applies when the invitee necessarily must use the dangerous premises, and despite the invitee’s awareness of the danger, the invitee is incapable of taking precautions that will adequately reduce the risk. If a plaintiff raises one of the exceptions, defense counsel should argue that it is the plaintiff’s burden to prove the exception applies. After all, a plaintiff is required to prove the defendant owed him a duty, and if a duty would exist only if an exception applies, then a plaintiff should be required to prove the exception.

Although the Supreme Court issued its ruling two years ago, litigants and courts have been slow to catch up. The contributory negligence doctrine is well ingrained and has been instrumental to the analysis of whether a fact issue exists on a premises liability claim. And it appears that many judges are still reluctant to dismiss a plaintiff’s case when confronted with an open and obvious dangerous condition, opting instead to declare a fact issue despite the new legal standard. But in situations where it is proven that a plaintiff was aware of the condition, judges will be hard pressed to ignore Austin. Eventually, the body of law will develop as to what constitutes an open and obvious condition, and courts will then become more comfortable in granting summary judgment in those situations.