Richard McGary recently obtained a favorable conclusion for his clients

Richard McGary recently obtained a favorable conclusion for his clients in defense of a million dollar bodily injury claim in General Electric Company v. Moritz, No. 04-0871, (Tex. S. Ct. June 13, 2008). In a close decision (5 – 3), the Texas Supreme Court reinstated a summary judgment in favor of Mr. McGary’s clients. Justice Brister wrote the majority opinion joined by Justices Hecht, Medina, Wainwright and Johnson. Justice Green dissented joined by Chief Justice Jefferson, and Justice Johnson. Justice O’Neill did not participate in the decision.

This was a premises liability case wherein the Respondent, Moritz, fell off a loading ramp while securing his load in his truck for morning deliveries. As a result of the fall, Moritz suffered serious and debilitating injuries. The principal issue in the case was whether a Landlord/Owner-Occupier owed a duty to warn Moritz, an independent contractor, of the lack of handrails on a loading ramp when the dangerous condition (the lack of handrails) was open and obvious. Tarrant County Limited Partnership, the owner, C. B. Richard Ellis, Inc., the management company and General Electric Company, the tenant, all obtained summary judgments in the trial court based upon there not being a duty to warn Moritz of the lack of handrails. The Fort Worth Court of Appeals reversed the trial court holding that fact questions remained on 1) whether GE controlled the ramp, and 2) on the premises defect or negligent activity issues. The Texas Supreme Court disagreed, reversed the Fort Worth Court of Appeals and reinstated the trial court’s summary judgment. According to the court, a person who hires an independent contractor generally expects the contractor to take into account any open and obvious premises defects in deciding how the work should be done, what equipment to use in doing it and whether its workers need any warnings. Placing the duty on an independent contractor to warn its own employees or make safe open and obvious defects ensures that the party with the duty is the one with the ability to carry it out. If owners and occupiers have no duty to warn an independent contractor of open and obvious defects, the defendants had no duty to warn Moritz that the ramp he had been using for more than a year had no handrails.

The Respondent argued and the Fort Worth Court of Appeals had held that the 1976 decision of Parker vs. Highland Park, 565 S.W.2d 512, 517 (Tex. 1976) abolished all no-duty arguments. Knowledge and appreciation of open and obvious dangers went solely to the issue of comparative negligence on Moritz’s part. The Texas Supreme Court rejected this argument. According to the Court, Dixon v. Van Waters and Rogers, 682 S.W.2d 533, 533-34 (Tex. 1984), interpreting Parker had explained that Parker abolished a certain kind of no-duty defense. It did not abolish all duty questions whatsoever. As in any other negligence action, a defendant in a premises case is liable only to the extent it owes the plaintiff a legal duty. Whether such a duty exists is a question of law for the court and is not for the jury to decide under comparative negligence or anything else. Hence, for the fifth time in the last ten years, the court unequivocally held an owner-occupier of land has no duty to warn an independent contractor of open and obvious dangers on the property.

Moritz has until June 30, 2008 to request a rehearing of the court’s ruling.