State v. Tennison

• Citation: 496 S.W.2d 219
• Decision Date: 30 May 1973
• Docket Number: No. 12042,12042
• Parties: The STATE of Texas, Appellant, v. Judyth S. TENNISON et vir, Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 219

496 S.W.2d 219

The STATE of Texas, Appellant, v. Judyth S. TENNISON et vir, Appellees.

No. 12042.

Court of Civil Appeals of Texas Austin.

May 30, 1973.

Rehearing Denied June 20, 1973.

John L. Hill, Atty. Gen., Harry C. Green, Asst. Atty. Gen., Austin, for appellant.

Terry L. Weldon, Byrd, Davis, Eisenberg & Clark, Austin, for appellees.

PHILLIPS, Chief Justice.

Appellees brought this suit under the terms and provisions of the Texas Tort Claims Act, Article 6252--19, Vernon's Ann.Civil Statutes. The trial court rendered judgment for appellees, pursuant to which the State has perfected its appeal in this Court.

We affirm.

The State is before us on six points of error, ¹ the first four, briefed together, relate to the failure of appellees to plead and prove any duty owed to appellees by appellant. We overrule these points.

Appellee, Judyth S. Tennison, while an employee of the State, fell in an anteroom near the entry of a state building on the premises of Camp Mabry in Austin. This building is owned and maintained by the State of Texas. Appellee's injury required a laminectomy to be performed, and shortly thereafter she contracted iliofemoral thrombophlebitis for which she was again hospitalized. As a consequence of the spinal surgery and the complications of phlebitis, appellee is seriously disabled and will require medical treatment for the rest of her life.

The gist of this lawsuit is the duty owed by the State to appellee, Judyth S. Tennison, under the Texas Tort Act according to the facts before us. The trial court overruled the State's motion for judgment based on the failure of any pleadings or proof of a violation of this duty and found that the duty of a licensor is measured by a standard of ordinary care, to warn the licensee of the condition or make the condition safe for the licensee. The standard of duty used by the trial court is that found in the Restatement of Torts, Second, Section 342. ²

The State maintains that appellee, Judyth S. Tennison, was a licensee upon the premises and that under the doctrine announced in Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073 (1941) the only duty that licensor owes to a licensee is not to injure her willfully, wantonly or through gross negligence. ³

The State further contends that the Act imposes no duty on the State due to a limitation of duty contained in Section 18(b) of art. 6252--19 V.C.S., to wit: 'As to premise defects, the unit of government shall owe to any claimant only the duty owed by private persons to a licensee on private property . . .'

In its second conclusion of law the trial court established the State's liability as licensor as follows:

2. 'A licensor is subject to liability for personal injuries to a licensee caused by a condition on the licensor's premises if:

A. The licensor knows or has reason to know the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that such licensees will not discover or realize the danger,

B. And the licensor fails to exercise reasonable care to make the condition safe or to warn the licensee of the condition and the risk involved, and

C. The licensee does not know or have reason to know of the condition or the risk involved.'

It is well settled that the host of an invitee owes him a duty not only to warn or correct known dangerous conditions, but also a duty of reasonable Inspection to discover those conditions, and that such a host is charged in law with knowledge of what a reasonable inspection would reveal. Genell, Inc. v. Flynn, 163 Tex. 632, 358 S .W.2d 543 (1962); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963).

The rule followed by the trial court in this case is much narrower . The comments of Section 342, Restatement Torts 2d, expressly withhold the duty of inspection from the host of a licensee. That is the host is under no obligation to inspect for the benefit or safety of his licensees, and is not charged with knowing what an inspection would reveal. The constructive knowledge charged to the host of a licensee, under Section 342, excludes knowledge which could be obtained through inspection.

The evidence before us discloses that a Mr. Bright, the person solely responsible for the maintenance of the floors of Building No. 14 for a number of years, did so in an unsafe manner. He was not provided by his superiors with proper instruction or materials, and he disregarded the instructions on those materials with which he was provided. The result is that gradually the floors became increasingly slick and dangerous, although that condition was not visible. Bright is charged with knowing that if he failed to add ammonia to the soap he used to remove the wax, as directed by instructions which came with the soap, then the soap was inadequate for the removal of the wax and the floor became extremely slippery. In addition, Bright plyed this surface with an oily mop which, according to expert testimony, 'was one of the most dangerous things you can do.' The result was that gradually the floors became increasingly slick and dangerous. Under the trial court's judgment, Bright is charged with the knowledge that such a pattern of maintenance created a dangerous condition.

In Gonzalez v. Broussard, 274 S.W.2d 737 (Tex.Civ.App.1954, writ ref. n.r.e.) the San Antonio Court of Civil Appeals speaking through Judge Pope stated this rule as follows:

'The general rule is that a licensor owes a licensee a duty only with reference to wilful, active, or wanton negligence, But there are exceptions to the rule. When the licensor has knowledge of a dangerous condition and the licensee does not, a duty arises on the part of the licensor to warn or make the condition reasonably safe.' (Emphasis Added)

We hold that under this exception, the knowledge of the licensor would include constructive knowledge. Otherwise the exception would for the most part be self defeating. Any other ruling would allow the State to be cloaked in the ignorance of its agents and immune from liability unless it can be established that the employees had Actual knowledge of the natural and obvious consequences of their own neglect. This would impose an impossible burden of proof, since this evidence can only be obtained by an admission from witnesses who may have a direct interest in the outcome of the litigation.

Consequently, we overrule appellant's points five and six ⁴ concerning the lack of actual knowledge of the dangerous condition on the part of the State or its servant.

The judgment of the trial court is affirmed.

Affirmed.

SHANNON, Justice.

I dissent.

Tex.Rev.Civ.Stat.Ann. art. 6252--19, § 18(b), provides, as to premise defects, that '. . . the unit of government shall owe to any claimant only the duty owed by private persons to a licensee on private property . . .' The question in the case is then, one of defining the duty owed by the licensor to a licensee.

The trial court concluded, and the majority of this Court has agreed, that the duty to warn a licensee of a condition on the premises arises if the '. . . licensee knows or Has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that such licensees will not discover or realize the danger.' ¹ (emphasis added)

I am unable to agree that the above statement is the law in Texas. The general rule is that a licensor owes a licensee a duty only with references to wilful, active, or wanton negligence. Carlisle v . J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073 (1941), Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). An exception to the general rule is in that situation wherein the licensor has Knowledge of a dangerous condition, and the licensee does not, a duty arises on the part of the licensor to warn or make the condition reasonably safe. Gonzalez v. Broussard, 274 S.W.2d 737 (Tex.Civ.App.1954, writ ref'd n.r.e.). See Bass v. Cummings, 415 S.W.2d 438 (Tex.Civ.App.1967, writ ref'd n.r.e.).

In Gonzalez, the danger to the licensee was Actually known to the licensor. The licensee, a child, broke his leg when he stumbled over a rock located on a playground provided at...