Until last Friday an owner whose premises harbored some known or knowable danger could not avail itself of the argument that it had no duty either to warn invitees or to render its premises safe even when the danger was “open and obvious” and even when the invitee was aware it. The “no-duty” rule that had once meant “no money” for plaintiffs who slipped and fell in the very spills they were paid to clean up had been abolished years before and Texas became a “no no-duty” state. The idea behind abolishing the rule was that Texas’ then new comparative fault scheme, especially once coupled with a bar on recovery whenever plaintiff’s fault is greater than 50%, would sort things out fairly, and spare judges the bother of untangling knotty issues of duty in the bargain. The results were otherwise.

If a deliberating jury wants to keep turning pages until it gets to one with blanks for the money they want to give away it’s not hard to figure out how to do it. They just have to solve this riddle: “Answer [the damages question] if you answered “Yes” for Danny Defendant to [the liability question] and answered: 1) “No” for Pauline Plaintiff to [the liability question], or 2) 50 percent or less for Pauline Plaintiff to [the percentage of causation question]”. Without the no-duty rule to screen out obviously meritless claims juries began to return verdicts which when compared to the underlying facts were simply absurd. Compounding the problem, efforts to reconcile the reasoning behind the reversal of a judgment for e.g. a plaintiff who’d been shown a hole by a premises owner and then promptly stepped in it anyway, and a rule the absence of which implies that a premises owner owed the plaintiff a duty irrespective of the hole’s obviousness or the plaintiff’s awareness of it, produced a number of appellate opinions which were, to put it kindly, confusing.

With Austin v. Kroger the Texas Supreme Court has declared that the era of “no no-duty” is over. An owner still has a duty to maintain its premises in a reasonably safe condition but that duty is discharged by warning of hidden dangers. Open and obvious dangers, and those of which an invitee is aware, don’t give rise to a duty to warn or to remediate in the first place. Two exceptions remain and both are quite limited. The first involves criminal activity by a third party and arises when the premises owner “should have anticipated that the harm would occur despite the invitee’s knowledge of the risk”. The second exception arises in the context of “necessary-risk”. If an invitee is aware of a hazard and yet must cross it nonetheless then a duty to lessen the attendant risk likely remains.

All in all it’s a very good opinion though I wish they’d spent a bit of time on the issue of why an open and obvious danger, or one of which an invitee is aware, cannot give rise to a duty, because it’s vitally important to understanding the no-duty rule.

Any system that adjudicates outcomes based on fault rests upon the idea that the parties being judged have agency – that they have both the faculty of reason and the ability to act according to their reason. When a party with agency is confronted with a known and avoidable danger the risk drops to zero so long as the party acts according to her reason, which is to say “reasonably”.

Since duty (in this context, at least) manifests only when a risk rises to a level at which a reasonable person would take action (i.e. warn or remediate) there can be no duty to act in a no risk (i.e. open and obvious) situation.

So, (and at last I come to the point) what always bothered me about the no-duty rule was that it essentially denied that individuals have agency. By denying that Texans couldn’t be assumed to be reasonable, to be the sort of people who upon seeing a hole decide to walk around it,  the no-duty rule denied that they had the faculty of reason and/or the ability to act upon it.  Stranger still, the rule assumed that the typical defendant, a corporation, did have agency which is why it got stuck with the duty. Thus corporations could be assumed to have agency but not so the state’s citizens. Ugh. Glad that chapter’s behind us.