Burden of Proof in Premises Defect Cases

By Tim Brandenburg

In Texas, the burden of proof in cases involving injuries caused by unreasonably dangerous conditions on a property is determined by the reason the injured person was on the property.  There are three classifications the injured person can fall into: 1) invitee (a person who enters the premises with the possessor’s express or implied permission and for the mutual benefit of the possessor and the invitee); 2) licensee (a person who enters the premises with the possessor’s express or implied permission, but only for the licensee’s convenience or on business for someone other than the possessor); and 3) trespasser (a person who enters the possessor’s property without lawful right or the consent of the possessor merely for the trespasser’s own purposes or out of curiosity).  Examples of invitees include business patrons, church members, garbage collectors, mail carriers, meter readers, newspaper boys, employees on duty and door-to-door salespeople after being invited into the house.  Licensee examples include door-to-door salespeople before being invited into the house, off-duty employees in the break room, members of the possessor’s household, a neighbor who comes to borrow tools, a social guest and people soliciting for charity.  Trespasser examples include employees on an unforeseen departure, an employee’s friend looking for the employee on the premises without permission and hunters without permission.

For an invitee to prove a premises defect case, the invitee must prove: 1) the condition posed an unreasonable risk of harm; 2) the possessor knew or reasonably should have known of the danger; and 3) the possessor failed to adequately warn the invitee of the condition and failed to make the condition reasonably safe.  It does not matter if the invitee knew the condition existed (however, any recovery would ultimately be reduced by the percentage of negligence assigned to the invitee).

For a licensee to prove a premises defect, the licensee must prove: 1) the condition posed an unreasonable risk of harm; 2) the possessor had actual knowledge of the danger; 3) the injured person did not have knowledge of the condition; and 4) the possessor failed to adequately warn the licensee of the condition and failed to make the condition reasonably safe.

For a trespasser to prove a premises defect, the trespasser must prove: 1) the condition posed an unreasonable risk of harm and 2) the trespasser was injured when the possessor acted willfully, wantonly or with gross negligence (e.g., a shotgun trap).

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