Johnnie Wilson v. Braeburn Presbyterian Church--Appeal from 80th District Court of Harris County

Reversed and Remanded and Majority and Concurring Opinions filed November 27, 2007

Reversed and Remanded and Majority and Concurring Opinions filed November 27, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00215-CV

____________

JOHNNIE WILSON, Appellant

V.

BRAEBURN PRESBYTERIAN CHURCH, Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2005-14847

C O N C U R R I N G O P I N I O N

In a case such as this, the invitor=s duty to an invitee is to either warn of the dangerous condition or to make the premises reasonably safe. See Bill=s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 369 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). I agree with the majority that Braeburn did not meet its duty to make safe merely by contacting the service company. I write separately to address Braeburn=s duty to warn.

Braeburn acknowledges that it gave no warnings but argues that its duty to warn Awas discharged by Ms. Wilson=s own knowledge and appreciation of an open and obvious danger.@ In Parker v. Highland Park, Inc., 565 S.W.2d 512, 521 (Tex. 1978), the Texas Supreme Court explicitly rejected the notion that an invitee=s knowledge of a dangerous condition can alleviate the invitor=s duty to warn. Rather, the invitee=s knowledge is an issue of contributory negligence that does not affect the duty to warn. See id.; Grey Wolf Drilling Co. v. Boutte, 154 S.W.3d 725, 734B35 (Tex. App.CHouston [14th Dist.] 2004, vac. by agr.); Flint v. Mickelsen, 781 S.W.2d 409, 410 n.2 (Tex. App.CHouston [1st Dist.] 1989, no writ). This court has clearly held that an invitor satisfied its duty when it warned an invitee of a dangerous condition, even though the invitee was already aware of it. See Bill=s Dollar Store, 77 S.W.3d at 369B70; June v. Dan Kirby Assocs., No. 14-94-00561-CV, 1995 WL 506012, at *1B3 (Tex. App.CHouston [14th Dist.] Aug. 25, 1995, writ denied). Braeburn could have similarly discharged its duty here, but it did not. Admittedly, it may seem awkward to require an invitor who has not made a condition safe to warn an invitee of that danger even if the invitee is already aware. However, that result is dictated by Parker, which unequivocally holds that an invitee=s knowledge of a dangerous condition cannot alleviate the duty to warn.[1] See Furr=s, Inc. v. Logan, 893 S.W.2d 187, 192 (Tex. App.CEl Paso 1995, no writ) (rejecting defendant=s argument that it owed no duty to plaintiff who knew of danger because Aa warning would have been superfluous to one who already knew and appreciated the danger,@ stating that such a theory Ais an evocation of the old >no duty= doctrine@ that the supreme court Ahas long since abolished@).

I agree with the majority that there is a fact issue on the question of Braeburn=s control of the dangerous area. If Braeburn had the requisite right to control and thus a duty to warn or make safe, it did not discharge that duty here. Thus, I respectfully concur.

/s/ Leslie B. Yates

Justice

Judgment rendered and Majority and Concurring Opinions filed November 27, 2007.

Panel consists of Justices Yates, Seymore, and Edelman.* (Edelman, J., Majority).

[1] Braeburn relies on Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 28 (Tex. App.CHouston [1st Dist.] 1995, writ denied), in which the First Court of Appeals held that Aif there are dangers that are open and obvious of which an invitee knows or of which it is charged with knowledge, then the occupier owes the invitee no duty to warn or protect the invitee.@ However, the Summers court relied on Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex. 1963), which the Parker court explicitly overruled. See Parker, 565 S.W.2d at 516B17. Thus, we decline to follow Summers.

* Senior Justice Richard H. Edelman sitting by assignment.