In the recent Texas Supreme Court case of Del Lago Partners, Inc. v. Smith, 53 Tex. Sup. J. 514 (December 6, 2007)(http://www.supreme.courts.state.tx.us/Historical/2010/apr/061022.htm),  the Texas Supreme Court has revisited the area of a property owner’s liability for the criminal activity of a third party and held for the Plaintiff. While not retreating from its prior cases on premises liability, the Court did affirm the viability of the theory of premises liability.

 
The facts in Del Lago were that a wedding party and members of a fraternity were both drinking in the bar at the Del Lago resort on Lake Conroe. After several of the fraternity members made advances on female members of the wedding party, a dispute arose between the two groups. In the end, Plaintiff, Bradley Smith, was seriously injured in the brawl that broke out.

 
The Court found that “Del Lago observed — but did nothing to reduce — an hour and a half of verbal and physical hostility in the bar” between the wedding party and the fraternity party. Despite a “palpable and escalating tension, Del Lago continued to serve drunk rivals who were engaged in repeated and aggressive confrontations.” Id. Rather than call on-site security or the local police, Del Lago’s bar personnel then attempted to close the bar early themselves, triggering a crowded exodus that erupted in a brawl.

 
The Court held thal Del Lago had a duty to protect Smith because Del Lago had actual and direct knowledge that a violent brawl was imminent between drunk, belligerent patrons and had ample time and means to defuse the situation. Del Lago’s duty arose not because of prior similar criminal conduct but because it was aware of an unreasonable risk of harm at the bar that very night. The Court reiterated that when a landowner “has actual or constructive knowledge of any condition on the premises that poses an unreasonable risk of harm to invitees, he has a duty to take whatever action is reasonably prudent” to reduce or eliminate that risk.

 
But how does that affect your business? Hopefully, it will not, but as always, “fore warned is forearmed.”

 
In previous decisions, the Texas Supreme Court had severely limited the common law theory of premises liability, which holds that a land owner or landlord may be liable to invitees for unreasonably dangerous conditions of the property.

 
For instance, in the slip and fall context, the Court has required that a store owner have either actual or constructive knowledge of the unreasonably dangerous condition before liability could be assessed. See, i.e., Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 409 (Tex. 2006). As a practical matter, this trend has virtually eliminated the classic slip and fall case.

 
In the area of liability for the criminal activity of a third party, a landowner was responsible for the acts of third parties ”only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable.” Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999).

 
With Del Lago however, the Court has found a set of facts in which the risk of criminal conduct was both unreasonable and foreseeable, and in which liability may be imposed on the landowner. The lesson from Del Lago is that there is no blanket protection for landowners from unreasonably dangerous conditions on their property, and they must therefore take reasonable steps to make the propert safe for invitees or guests. 

 
At the Vethan Law Firm, we can help business owners recognize and manage the risks involved in operation; not only from premises liability, but from other risks inherent in operation. And, if litigation does occur, we can vigorously defend the business in both the state and federal courts of Texas.

 Call us today for a consult if you have any questions or concerns regarding protecting your business’ hard-earned assets.

 It’s your business; protect it.