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Premises Liability and Third Party Criminal Conduct in Texas

Written by Tom Crosley
Catastrophic Personal Injury

Premises Liability and Duty of Care

Premises liability refers to the area of law concerning injuries that occur on the property, or premises, of another. People are injured while on the others’ property every day. They slip and fall on freshly mopped floors, they may be injured by malfunctioning escalators, or they may be struck by an object falling off of a shelf. In order for a plaintiff to have a valid case against the owner of the property, it must be determined that the owner was responsible for the upkeep and safety of the property and that they were in breach of that duty. The question isn’t whether or not an injury has occurred, but rather if the property owner had a reasonable duty of care in regards to the injury, either directly or through neglect.

As far as the law is concerned, individuals and parties that own private property are responsible for maintaining that property based on what is known as a duty of care, which obligates them to protect civilians and employees from dangerous conditions while they are on that property. This means property owners are liable for injuries that occur while visitors are on the property in certain circumstances. For instance, if a parking lot is littered with potholes that have been neglected for long stretches of time and someone breaks an ankle as a result, the property owner could be considered derelict in their duty of care because they knew about the problem as well as its dangers and did not act to remedy it.

If you or a loved one has suffered an injury while visiting someone else’s property, you may be entitled to financial restitution for those injuries. However, premises liability is far more complicated than most people realize, especially when it comes to third party criminal conduct.

Legal Status of Visitors

The first step in determining the validity of any premises liability case is to establish the injured party’s legal status on the property. In Texas, the law recognizes three distinct statuses of individuals who have entered someone else’s property, and these statuses determine the extent of the owner’s duty of care.

  1. Invitee: Invitees are individuals and groups of people who have access to the property with the owner’s knowledge, with the owner’s consent, and at the owner’s invitation. Further, they must be using the property for its intended purpose or for a purpose that is sanctioned by the owner. In the case of invitees, the owner of the property must take reasonable care to ensure that the premises are safe. If the invitee is injured while on the property, they must prove that a reasonable owner would have been aware of the potential danger and taken action. This is usually the most common plaintiff status. For example, if you are shopping at a store, you are considered an invitee.
  2. Licensee: Licensees are people who enter a property with either implied or expressed permission rather than an invitation. There are a few exceptions to this definition; for example, houseguests at a dinner party and family members are generally considered licensees. The property owner’s duty of care pertaining to licensees requires that the owner does not cause injury willfully, wantonly, or through gross negligence. If the owner is aware of any potential dangers, they must make the licensee aware of them in order to successfully execute their duty of care.
  3. Trespasser: A trespasser is someone who enters a property without permission, invitation, or legal authority. In Texas, the owner’s only responsibility regarding duty of care is to avoid intentionally causing injury. The owner cannot be held responsible for injuries sustained as a result of any undisclosed threats on the property. However, the owner cannot intentionally create or worsen dangerous conditions as a means of catching a trespasser (e.g. by using booby-traps).

Further Complications: Criminal Actions and Premises Liability

Following the deadly shootout between rival biker gangs outside of a Twin Peaks restaurant in Waco earlier this year, the question of premises liability in regard to criminal action has taken center stage in the legal arena. In Texas, a premises owner who is unaware of possible criminal action on his or her property usually has no duty to protect invitees from criminal acts committed by third parties. However, the Texas Supreme Court has declared that if and when the owner is aware of a potential risk to invitees, he or she can be held liable for any injuries incurred. There are two qualifiers to this exception, although the plaintiff is only required to prove one of them:

1. If the owner had direct knowledge of pending criminal actions on the property, the plaintiff must prove that this knowledge was enough to have allowed the owner to anticipate the criminal actions.
2. Lacking direct knowledge of potential criminal actions on the owner’s premises, the victim must prove that the crime was foreseeable due to similar actions at or near the property.

The most influential case of premises liability regarding criminal actions in Texas occurred nearly 20 years ago. In 1998, the Texas Supreme Court heard Timberwalk Apartments, Partners v. Cain after a Timberwalk Apartment tenant was raped by an intruder in her apartment. In overseeing the case, the court developed five factors that should be taken into account when determining premises liability in regard to criminal conduct:

  1. Proximity: Previous crimes must have occurred on the premises or very close to it.
  2. Recency: Previous crimes must have occurred within a relatively short time of the crime in question.
  3. Frequency: Previous crimes must have occurred several times within a defined time period.
  4. Similarities: Previous crimes must have been similar to the crime in question, although not identical. For instance, violent crimes such as assaults or robberies do serve as foreseeable precedents to crimes such as rape or murder.
  5. Publicity: Previous crimes must have been widely publicized in order to determine that the property owner had foreseeable knowledge of the crime in question.

Why Does this Matter?

Whether you’re at a family gathering or just out shopping, it’s important to know your rights and responsibilities. While property owners do have a duty of care toward their visitors, everyone should make sure to always observe their surroundings and be on the lookout for potential hazards in order to remain safe.


Brogdon, Q. (2015, July 15). Determining premises liability in a criminal case. Texas Lawyer. Retrieved from http://www.texaslawyer.com/id=1202732200373/Determining-Premises-Liability-in-a-Criminal-Case

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