Reversed and Remanded and Majority and=20
Concurring Opinions =
filed=20
November 27, 2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-06-00215-CV
____________
JOHNNIE=20
WILSON, =
Appellant
V.
BRAEBURN=20
PRESBYTERIAN CHURCH, =
Appellee
On Appeal from the =
80th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2005-14847
C O N C U=20
R R I N G O P I N I O N
In a case=20
such as this, the invitor=3Ds duty to=20
an invitee is to either warn of the dangerous condition or to make =
the=20
premises reasonably safe. See Bill=3Ds Dollar=20
Store, Inc. v. Bean, 77=20
S.W.3d 367, 369 (Tex. App.CHouston=20
[14th Dist.] 2002, pet. denied). I agree with the majority =
that=20
Braeburn did not meet its duty to make safe merely by contacting =
the=20
service company. I write separately to address =
Braeburn=3Ds duty to=20
warn.
Braeburn=20
acknowledges that it gave no warnings but argues that its duty to =
warn=20
Awas=20
discharged by Ms. Wilson=3Ds own=20
knowledge and appreciation of an open and obvious =
danger.@ In=20
Parker v. Highland Park, Inc., 565 S.W.2d 512, 521 (Tex. =
1978), the=20
Texas Supreme Court explicitly rejected the notion that an=20
invitee=3Ds=20
knowledge of a dangerous condition can alleviate the =
invitor=3Ds duty to=20
warn. Rather, the invitee=3Ds=20
knowledge is an issue of contributory negligence that does not =
affect the=20
duty to warn. See id.; Grey Wolf Drilling =
Co. v.=20
Boutte, 154 S.W.3d 725, 734B35 (Tex.=20
App.CHouston=20
[14th Dist.] 2004, vac. by agr.); Flint v. Mickelsen, 781 =
S.W.2d=20
409, 410 n.2 (Tex. App.CHouston=20
[1st Dist.] 1989, no writ). This court has clearly held that =
an=20
invitor satisfied its duty when it warned an invitee of a =
dangerous=20
condition, even though the invitee was already aware of it. =20
See Bill=3Ds Dollar=20
Store, 77=20
S.W.3d at 369B70;=20
June v. Dan Kirby Assocs., No. 14-94-00561-CV, 1995 WL =
506012, at=20
*1B3 (Tex.=20
App.CHouston=20
[14th Dist.] Aug. 25, 1995, writ denied). Braeburn could =
have=20
similarly discharged its duty here, but it did not. =
Admittedly, it=20
may seem awkward to require an invitor who has not made a =
condition safe=20
to warn an invitee of that danger even if the invitee is already=20
aware. However, that result is dictated by Parker, =
which=20
unequivocally holds that an invitee=3Ds=20
knowledge of a dangerous condition cannot alleviate the duty to =
warn. =20
See Furr=3Ds, Inc. v.=20
Logan, 893=20
S.W.2d 187, 192 (Tex. App.CEl Paso=20
1995, no writ) (rejecting defendant=3Ds argument=20
that it owed no duty to plaintiff who knew of danger because =
Aa warning=20
would have been superfluous to one who already knew and =
appreciated the=20
danger,@ =
stating=20
that such a theory Ais an=20
evocation of the old >no=20
duty=3D =
doctrine@ =
that the=20
supreme court Ahas long=20
since abolished@).
I agree=20
with the majority that there is a fact issue on the question of=20
Braeburn=3Ds control=20
of the dangerous area. If Braeburn had the requisite right =
to=20
control and thus a duty to warn or make safe, it did not discharge =
that=20
duty here. Thus, I respectfully concur.
/s/ =20
Leslie B. Yates
Justice
Judgment=20
rendered and Majority and Concurring Opinions filed November 27,=20
2007.
Panel=20
consists of Justices Yates, Seymore, and Edelman. (Edelman, =
J.,=20
Majority).
Braeburn relies on Summers v. =
Fort=20
Crockett Hotel, Ltd., 902 S.W.2d 20, 28 (Tex. App.CHouston [1st Dist.] 1995, writ denied), =
in which=20
the First Court of Appeals held that Aif there are dangers that are open and =
obvious of=20
which an invitee knows or of which it is charged with knowledge, =
then the=20
occupier owes the invitee no duty to warn or protect the=20
invitee.@ However, the Summers court =
relied on=20
Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex. =
1963),=20
which the Parker court explicitly overruled. See=20
Parker, 565 S.W.2d at 516B17. Thus, we decline to follow=20
Summers.
Senior Justice Richard H. Edelman =
sitting=20
by =
assignment. |