The Necessary Use Exception

The Necessary Use Exception: The Exception to Open-and-Obvious Dangers for Workplace Injuries and Premise Cases

In most premise cases, attorneys are always concerned with the “open and obvious” doctrine. Under this defense, the Defendant may assert as a defense that the hazard which caused the Plaintiff’s injury was so obvious and discoverable that a reasonable person would have avoided the hazard and would not have sustained the injury. This essentially is the death kneel to any premise case, as the case law allows courts to throw out claims that fall under this doctrine.

We ran into this problem in a recent premise case. Our client was injured in a fall, when he tripped into a large hole that he and his crew created. The client fully admitted that he knew of the holes and created the holes, clearly falling into an ironclad defense. Our client, despite having grievous injuries, had been rejected from multiple attorney’s offices before coming to us.

Our strategy was to use a little-known exception to the open-and-obvious rule: the Necessary Use Exception. Under this exception, the Plaintiff’s awareness of the risk does NOT relieve the duty of the Defendant to make the premises safe.

Premise Defendants always argue that under premises-liability principles, a property owner or landholder generally has no duty to warn or protect from open, obvious, or known hazards. Parker v. Highland Park, Inc., 565 S.W.2d 512, 513-514 (Tex. 1978). However, especially for workplace injuries, the necessary use exception carved out by the Texas Supreme Court in Austin v Kroger Tex. L.P., 465 S.W.3d 193, 207 (Tex. 2015), provides narrow relief to the ironclad defense. Under the exception, the Court expressly recognized the exception to the general rule when the facts demonstrate that (1) it was necessary that the invitee use the unreasonably dangerous premises and (2) the landowner should have anticipatedthat the invitee was unable to avoid the unreasonable risks despite the invitee’s awareness of them.” Austin at 207.

The Austin v. Kroger, LP Court solidified the necessary-use exception to the general premises liability rule, based on the Texas Supreme Court’s decision in Parker v. Highland Park, Inc. Austin, 465 S.W.3d at 206. In Parker, the plaintiff fell down a set of improperly lighted stairs despite knowing of the danger presented by the darkness and taking steps to mitigate the risk. Parker v. Highland Park, Inc., 565 S.W.2d 512, 513-514 (Tex. 1978). The Texas Supreme Court held that because the staircase was the only way for the Parker plaintiff to leave her sister’s apartment, her knowledge of the danger was no bar to recovery because it was necessary to use the staircase to leave the apartment. Id. at 521. The Court explained:

[We] retain Parker as an example of an exception that recognizes a landowner’s duty to make the premises safe when, despite an awareness of the risks, it is necessary that the invitee use the dangerous premises and the landowner should have anticipated that the invitee is unable to take measures to avoid the risk. When this necessary use exception applies, like the criminal activity exception, the plaintiff’s awareness of the risk does not relieve the landowner’s duty to make the premises safe, but it remains relevant to the issue of proportionate responsibility.

Id. at 208. (emphasis added).

The Parker court noted several factors which aid in the Court’s determination, stating: “[o]ne’s conduct after he is possessed of full knowledge, under the circumstances may be justified or deemed negligent depending upon such things as the plaintiff’s status, the nature of the structure, the urgency or lack of it for attempting to reach a destination, the availability of an alternative, one’s familiarity or lack of it with the way, the degree and seriousness of the danger, the availability of aid from others, the nature and degree of the darkness, the kind and extent of a warning, and the precautions taken under the circumstances by a plaintiff in walking down the passageway.” Parker, 565 S.W.2d at 520.

The idea is based on Blanks v. Southland Hotel, Inc., 229 S.W.2d 357, 360 (Tex. 1950). In this case, the Supreme Court again applied the necessary-use exception where the plaintiff tripped and fell while descending a poorly lit stairway from his hotel room on the ninth floor. The stairway was the only path of travel to and from the room because the elevator had broken. Id. Therefore, the Court held that the necessary use of the stairway acted as an exception to the application of contributory negligence in the plaintiff’s case. Id. Importantly, the Court noted that “[w]hile his situation in this regard was voluntary in the sense he willingly became a tenant on the ninth floor, it was involuntary in the sense that it was the only way provided by the Hotel whereby he, as such tenant, could use his room.” Id.

Workplace and premise danger cases have to always fight against the “open and obvious” defense. However, necessary use does allow for narrow exceptions that can put many defendants on the backfoot, even in cases once thought to be unwinnable. As in our example, we were to successfully argue the exception applied to our case and got our client a large settlement at pretrial. At CvPA, we always work toward getting our clients the best possible outcome, no matter what the problems might be.

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