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Marathon Corp. v. Pitzner8/2/2001
duties owed by an owner or occupier of land to persons who come onto the property to protect them from injury on account of dangerous conditions or activities on the property. The elements of a premises liability action are:
(1) actual or constructive knowledge of a condition on the premises by the owner or occupier;
(2) that the condition posed an unreasonable risk of harm;
(3) failure by the owner or occupier to use reasonable care to reduce or eliminate the risk; and
(4) that the failure by the owner or occupier to use such care proximately caused the plaintiff's injuries. Daenen, 15 S.W.3d at 99; Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); see also Restatement (Second) of Torts ยง 343 (1965).
The extent of duty owed by an owner or occupier of land to entrants on the property depends on the status of the entrant as a trespasser (whose presence on the property is unauthorized), a licensee (one who comes onto the property with permission, but for his own purposes rather than a purpose that mutually benefits the owner or occupier and the entrant), or an invitee (who is expressly invited onto the property for the mutual benefit of the owner or occupier and the entrant). See, e.g., Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999).
Pitzner, a repairman sent in response to Marathon's call for air conditioning repair service, was clearly an invitee. The duty owed to an invitee is to exercise reasonable care to protect him against danger from a condition on the land that creates an unreasonable risk of harm of which the owner or occupier knew or by the exercise of reasonable care would discover. Daenen, 15 S.W.3d at 101; Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983).
In this case, appellee asserts Pitzner's injury arose from several premises defects: (1) unsafe placement of the two air conditioning units too close together; (2) unsafe placement of the units too close to the edge of the roof; (3) unsafe placement of a natural gas line; and (4) the lack of an on/off switch on the units. Generally, an owner or occupier of land does not owe any duty to ensure that an independent contractor performs his work in a safe manner. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998). However, a premises owner or occupier may be directly liable to an independent contractor's employees for two types of negligence in failing to keep the premises safe: (1) negligence pertaining to defects existing on the premises when the independent contractor/invitee entered; and (2) negligence arising from activity on the premises. Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997).
Under the first subcategory, the premises owner has a duty to inspect the premises and warn the independent contractor/invitee of dangerous conditions that are not open and obvious and that the owner knows or should have known exist. Lawrence, 988 S.W.2d at 225; Olivo, 952 S.W.2d at 527-28; Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 746 (Tex. 1973). The core of the duty depends on actual or constructive knowledge of a dangerous condition that a reasonable inspection would reveal. Daenen, 15 S.W.3d at 101; Seideneck v. Cal Bayreuther Assocs., 452 S.W.2d 752, 754 (Tex. 1970). Premises defects of this type are ones in which the danger did not arise through the work activity of the subcontractor/invitee. Lawrence, 988 S.W.2d at 225; Lamb, 493 S.W.2d at 746; Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 433 (Tex. 1950). Only concealed hazards - those dan
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