Error Preservation in the Texas Supreme Court: Premises Liability (February 10, 2024).

February 10, 2024

Dear Folks:

This is mostly a reminder about the treacherous nature of getting the charge right when it is unclear if the claim is a premises liability claim, or a negligence claim–and the treacherous nature of preserving a complaint about charge error. In a case involving a tragic accident, the Supreme Court held that “some of the duties addressed by the parties here sound in ordinary negligence while others sound in premises liability,” but since “[t]he exercise-of-control duty that we have concluded HNMC owed sounds in premises liability,” “a premises liability question must be submitted to the jury.” HNMC, Inc. v. Chan, No. 22-0053, 67 Tex. Sup. Ct. J. 231, __WL__, 2024 Tex. LEXIS 35, at *18 (Jan. 19, 2024). Here, the “ jury charge included only an ordinary negligence question and instructions” and “failed to include the essential elements of a premises liability claim.” Id. While that would normally mean the Plaintiff obtained an immaterial answer which would not support a judgment (see United Scaffolding, 537 S.W.3d 463, 572 (Tex. 2017)), the Supreme Court did not decide the case on an immaterial finding in HNMC. Instead, the Supreme Court noted that the court of appeals en banc majority held that the defendant “invited any charge error by opposing a premises liability submission requested by a different defendant,” and the defendant did not challenge that ruling before the Supreme Court.  HNMC, at *19.  This case emphasizes that both sides need to carefully analyze the nature of each type of premises/negligence claim submitted to the jury. If the plaintiff gets it wrong, it will have obtained an immaterial finding. If the defendant invites the error, it will have waived any complaint as to the immateriality. Scary, scary, scary stuff.

I hope this helps.  Y’all have a great weekend.


Steve Hayes;; 817/371-8759


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436

Meetings with Mr. Hayes will be by appointment only.

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