Can a Texas Store Refuse to Pay Because the Hazard Was 'Open and Obvious'? (Austin v. Kroger & Two Exceptions)
Direct Answer Under Texas Law
In Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015), the Supreme Court of Texas held that a landowner generally has no duty to warn or protect an invitee against a premises defect that is objectively 'open and obvious' or already known to the invitee—EXCEPT in two critical situations recognized by the Court: (1) The Criminal-Activity Exception (Timberwalk negligent security cases), and (2) The Necessary-Use Exception (Parker v. Highland Park, where the invitee had to use the dangerous area—such as the only staircase exiting an apartment—and could not avoid the risk despite knowing of it)!
Critical Texas Procedural Trap to Watch Out For
Just because a puddle, pothole, or step was 'visible if you stared straight down at your feet' does NOT make it 'open and obvious' as a matter of law! Clear water on shiny white grocery tile, unpainted curb drops in dim lighting, or hazards obscured by eye-level retail displays are routinely held NOT open and obvious.
Recommended Action Plan for Texas Claimants
Document why the hazard was visually camouflaged (clear liquid on glossy tile, glare, lack of yellow safety contrast paint) or why the Necessary-Use Exception under Austin v. Kroger applied.
Detailed Texas Statutory & Case Law Breakdown
Under Texas Premises Duty & Necessary-Use Exception and controlling Texas appellate precedent in Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015); Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978), Texas trial and appellate courts apply strict statutory rules to this exact issue. Unlike generic multi-state legal summaries, Texas tort procedure under the Civil Practice and Remedies Code (CPRC), Insurance Code, Transportation Code, and Labor Code enforces specific statutory formulas—including the 51% proportionate responsibility bar (CPRC § 33.001), paid-or-incurred medical expense admissibility (CPRC § 41.0105 / Haygood), and mandatory statutory lien caps (Prop. Code Ch. 55 & Ins. Code Ch. 140).
Step-by-Step Texas Procedural Checklist
- Verify the exact statutory text of Texas Premises Duty & Necessary-Use Exception and how Texas courts apply Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015); Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978) in your county's appellate district.
- Beware of the Texas Procedural Trap: Just because a puddle, pothole, or step was 'visible if you stared straight down at your feet' does NOT make it 'open and obvious' as a matter of law! Clear water on shiny white grocery tile, unpainted curb drops in dim lighting, or hazards obscured by eye-level retail displays are routinely held NOT open and obvious.
- Execute the Texas Action Plan: Document why the hazard was visually camouflaged (clear liquid on glossy tile, glare, lack of yellow safety contrast paint) or why the Necessary-Use Exception under Austin v. Kroger applied.
- Preserve all physical, electronic, and medical billing records early so your CPRC § 18.001 affidavits and TRCP 194.2 Initial Disclosures are complete.
Frequently Asked Questions Under Texas Law
Can a Texas Store Refuse to Pay Because the Hazard Was 'Open and Obvious'? (Austin v. Kroger & Two Exceptions)
In Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015), the Supreme Court of Texas held that a landowner generally has no duty to warn or protect an invitee against a premises defect that is objectively 'open and obvious' or already known to the invitee—EXCEPT in two critical situations recognized by the Court: (1) The Criminal-Activity Exception (Timberwalk negligent security cases), and (2) The Necessary-Use Exception (Parker v. Highland Park, where the invitee had to use the dangerous area—such as the only staircase exiting an apartment—and could not avoid the risk despite knowing of it)! Key Texas Trap to Avoid: Just because a puddle, pothole, or step was 'visible if you stared straight down at your feet' does NOT make it 'open and obvious' as a matter of law! Clear water on shiny white grocery tile, unpainted curb drops in dim lighting, or hazards obscured by eye-level retail displays are routinely held NOT open and obvious.
What Texas statute and Supreme Court / appellate precedent control the 'open and obvious' defense (austin v. kroger)?
This question is governed in Texas by Texas Premises Duty & Necessary-Use Exception and the legal standards articulated in Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015); Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978). Recommended step: Document why the hazard was visually camouflaged (clear liquid on glossy tile, glare, lack of yellow safety contrast paint) or why the Necessary-Use Exception under Austin v. Kroger applied.
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