The question presented by this appeal is whether the no-duty doctrine is still a viable one in the trial of premises cases. This case deals with invitees and tenants and does not involve licensees or trespassers. Mrs. Ruth Parker was injured when she fell while descending a dark stairway located on the premises of Highland Park, Inc. She sued Highland Park and recovered a judgment on a jury verdict for $17,123.00. This case arose before the effective date of the comparative negligence statute. Art. 2212a. The trial court's judgment for Mrs. Parker was upon the jury findings that (1) the stairs were not properly lighted, (2) which caused the stairs to be unusually dangerous for use, (3) Highland Park was negligent in not causing the stairs to be properly lighted, (4) which was a proximate cause of Mrs. Parker's injuries. The jury refused to find (5) that Mrs. Parker was negligent in undertaking to descend the stairs, (6) or in the manner in which she descended the stairs, but (7) found that Mrs. Parker received a warning of the danger as she proceeded down the stairs. She had been visiting Judge and Mrs. Massey. Mrs. Massey had said to her, "Ruth, be careful." The court of court of civil appeals with a divided court reversed the judgment and rendered judgment for Highland Park. 545 S.W.2d 275. That court placed its decision squarely upon the holding that the defendant owed the plaintiff no duty since the darkness in the stairwell was open and obvious to Mrs. Parker, citing Robert E. McKee, General Contractor, Inc. v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); Lowe Chemical Co. v. Greenwood, 433 S.W.2d 695 (Tex.1968), and Wesson v. Gillespie, 382 S.W.2d 921 (Tex.1964). We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.
Mrs. Parker went to the apartment of Judge and Mrs. Frank Massey during the afternoon of October 23, 1971. The Masseys had been renting their apartment from Highland Park for about two years. Mrs. Parker and Mrs. Massey are sisters. After dinner and at about eight fifteen in the evening, those three persons prepared to leave the second-floor apartment to drive Mrs. Parker to her home in another part of the city. Upon opening the door they saw
Mrs. Parker and Mrs. Massey then proceeded cautiously to descend the steps. The steps were so narrow that it was easier for persons to go in single file. Mrs. Massey followed Mrs. Parker so she could direct the light on the steps in front of Mrs. Parker who was about three steps in front. She was holding the light low so Mrs. Parker could see the steps. Mrs. Parker held onto the rail on the right side of the steps. After descending six steps Mrs. Parker reached a flat landing at which point the stairs made a right angle turn to the right. There was a step from that landing to a second flat landing and then six more steps to the ground floor. When Mrs. Parker made the turn at the first landing, she did not remember that there was a step which separated the first and second landings. See Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625 (1941). Mrs. Parker said that she had been on the stairs to visit her sister every six weeks to two months and a few times at night, but the stairway was always lighted before. She moved from the first landing and while still holding to the rail, she stepped off the first landing. She testified that she swung around to the right, and she tried to grab the rail with her left hand. She testified that the light from the flashlight was obscured by the right turn and the posts on the stairway.
The Massey apartment shared the common foyer and stairs with another apartment. The foyer and stairs were inside the building but outside the apartments. The Masseys controlled the lights inside their apartment, but Highland Park, Inc. exercised complete control over the area and the lights outside the apartment. The entire apartment complex consisted of 204 apartments and the lights for the halls and stairs were set to come on and go off at predetermined times. An employee of Highland Park, Inc. was responsible for setting the automatic timing device. It had to be reset periodically as the days grew shorter, and by October 23 there was a total darkness by 8:15 P.M., when the accident occurred.
Highland Park says that it is entitled to a favorable judgment because the trial court, over its objection, failed to submit as a part of the plaintiff's issues, a special issue which inquired whether the defendant either created or maintained the dangerous condition, or whether the defendant knew or should have known of the condition. The evidence that Highland Park created the darkened and dangerous condition on the steps is undisputed. By answers to admissions, Highland Park stated that on the second floor there was a light fixture inside the front stairwell and another at the back of the stairwell. There were two similar fixtures on the first floor. There were also lights just outside and inside the back door. All six of those lights were out when the accident occurred. Highland Park admitted that those lights were controlled by a mechanism recessed in the wall inside the back door on the first floor. It admitted that it was "probably one of its employees who was responsible for setting the automatic timer," and "the present information of the defendant is that Jerry Wilson probably had that duty." It said that it did not know who made the last setting or when it was made. It offered no contrary evidence to dispute or explain its answers. There is no evidence that anyone other than defendant had the right to change or ever had changed the timer. The lights came on automatically after the accident but before Mrs. Parker left in the ambulance, so it was not an instance of six defective bulbs being out at the same time. The undisputed proof is that defendant set the automatic timer so the lights would come on after total darkness.
The duty that the landlord owed to the Masseys as tenants extended to their
Other expressions of this duty owing a guest of a tenant under these circumstances are 49 Am.Jur.2d Landlord and Tenant, § 810 (1970); Annot., Landlord's Liability— Adequacy of Light, 66 A.L.R.3d 202, 344-51 (1975); Annot., 24 A.L.R.3d 388, 391-92 (1969).
The court of civil appeals denied judgment for Mrs. Parker without reaching the findings of the jury that the defendant was
The court of civil appeals in this case has followed the rule of McKee which required plaintiff invitee not only to prove affirmatively that the defendant was at fault by looking at defendant's conduct, but also to prove the absence of his own subjective knowledge and appreciation of any danger. The rule of McKee was that an invitee carried the extra burden to negate "no-duty." It also wrote that the extra burden was "an incident to the defensive issue of voluntary exposure to risk."
In Halepeska, a studied effort was made to separate and clarify the no-duty, voluntary assumption of risk and "open and obvious" concepts. The explanation for the long-standing confusion in the terms, of course, is that the subjective knowledge and appreciation elements of no-duty were also
The inextricable mixing of (1) the duty owed by a defendant and (2) a plaintiff's burden to negate his own knowledge and appreciation with (3) voluntary assumption of risk has been more recently recognized. In Ellis v. Moore, 401 S.W.2d 789, 793 (Tex. 1966), we explained how they are intertwined, saying: "Where the assumed risk doctrines of `no duty' or volenti are invoked, the duty of the defendant is to exercise ordinary care to make reasonably safe or to warn." [Emphasis added.] In Scott v. Liebman, 404 S.W.2d 288, 292-93 (Tex. 1966), the identification of the no-duty doctrine with voluntary assumption of risk was again stated: "To review, then, the basic concepts of assumed risk (no duty) and to place this opinion in context with others by this Court . . . ." The court then in Scott explained that the purpose of a warning is to supply the elements of knowledge and appreciation. Those are two of the three elements of voluntary assumption of risk.
No-duty, as thus explained, was said to defeat a plaintiff's action because a plaintiff's knowledge and appreciation of a danger cut off his action before reaching the issue about a defendant's negligence. As has been noticed before, the plaintiff's knowledge and appreciation are two elements which duplicate, overlap, and are segments of the voluntary assumption of risk doctrines which we abandoned in Farley v. M M Cattle Company, 529 S.W.2d 751 (Tex.1975). Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, 457-58 (Tex.1972).
We now expressly abolish the so-called no-duty concept in this case and, as expressed in Farley, "henceforth in the trial of all actions based on negligence . . ." The reasonableness of an actor's conduct under the circumstances will be determined under principles of contributory negligence. While this case arose prior to the adoption of the comparative negligence statute, in the trial of cases under that statute, one who is contributorily negligent is still entitled to have his negligence compared with that of the other participants in the event.
Our reasons for abolishing the no-duty concept need to be stated:
1. The appendage of "no-duty" to a plaintiff's burden to prove that a defendant owed a duty has contributed confusion which has defied the efforts of our best scholars at explanation and application. This court acknowledged this difficulty when it wrote in McKee v. Patterson, supra, "[i]t would greatly simplify our procedural problems if we could follow the course suggested by . . . Camp v. J. H. Kirkpatrick. . . and let this class of cases fall into the pattern of the usual negligence case, deciding the question of negligence and breach of duty on the part of the owner by looking only to his conduct and the question of voluntary exposure to risk on the part of the invitee by looking alone to his conduct, but to do so would be to ignore the well-settled law of this state . . . ."
2. This court, based on logic, has already undermined the no-duty rule that the court in McKee felt bound by stare decisis to follow. Our decision in 1975 in Farley v. M M Cattle Company, 529 S.W.2d 751,
The definition included three elements: (1) knowledge, (2) appreciation, (3) the voluntary encounter. Greenhill, Assumed Risk, 20 Sw. L.J. 1, 12 (1966). When Farley abolished voluntary assumption of risk, it terminated the whole doctrine, all three elements. The contention now is that the first and second elements (knowledge and appreciation by the plaintiff) in some way survived Farley and Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975), and still live under the name of "no-duty." Voluntary assumption of risk included and is inseparable from no-duty.
3. The legislature by its adoption in 1973 of the comparative negligence statute evidenced a clear policy purpose to apportion negligence according to the fault of the actors. See generally Tex.Rev.Civ.Stat. Ann. art. 2212a. That system replaced the harsh system of absolute victory or total defeat of an action by such doctrines as contributory negligence, voluntary assumption of risk, and also the included doctrine known as no-duty. This was a reason assigned in Farley and earlier in Rosas for the elimination of the no-duty rule in its inclusive form of voluntary assumption of risk. The survival of no-duty (plaintiff's knowledge and appreciation) as a total bar is incompatible with the legislative purpose of the comparative negligence statute. Farley, Rosas, Adam Dante, and article 2212a have now wholly eroded any foundation for the McKee reasoning grounded upon stare decisis. See Note, 7 Tex.Tech.L.Rev. 765, 767-69, 771-72 (1976).
4. The no-duty doctrine is so elusive that precedent is non-predictive and unhelpful. This was a reason assigned for the abolition of no-duty in the form of voluntary assumption of risk. Rosas v. Buddies Food Store, supra, 518 S.W.2d at 539. Edgar, Voluntary Assumption of Risk in Texas Revisited—A Plea for its Abolition, 26 Sw. L.J. 849 (1972).
5. The no-duty rule imports a plaintiff's subjective knowledge of a condition into an objective general duty rule. As stated in Rosas, the intrusion of subjective intent of a plaintiff on a behavioral tort runs counter to the traditional resolution of liability that is determined by objective standards of negligence. Rosas, supra, at 538. See Keeton, Annual Survey of Texas Law, Torts, 24 Sw. L.J. 1, 5-6 (1970); see also Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, at 455 and 458, and compare footnote 1 with footnote 2.
6. The no-duty doctrine has been generally condemned. It is a harsh doctrine and
7. A large body of Texas law, which has never been overruled, demonstrates that premises cases are more easily tried under ordinary negligence and contributory negligence principles. Our decision in Harvey v. Seale, 362 S.W.2d 310 (Tex.1962), abolished the no-duty requirements in a limited class of premises cases and returned them to trials upon negligence principles, that is, whether the plaintiff and defendant acted reasonably. See generally Keeton, Annual Survey of Texas Law, Torts, 29 Sw. L.J. 2, 4 (1975). A number of earlier decisions show that all premises cases are more understandably tried that way. In 1952, Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413 (Tex.Civ.App.1952, writ ref'd n. r. e.), cited and discussed the cases that had tried premises cases as negligence cases. The next year the supreme court in Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60, 63-64 (1953), relied upon the same precedents as controlling over the no-duty holding of Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948). More recently this court again cited and reasserted the validity and simplicity of the same cases in Rosas v. Buddies Food Store, 518 S.W.2d 534, 539 (Tex.1975), as reasons for abolishing voluntary assumption of risk. In Farley, we adopted those reasons.
This is a partial list of premises cases that were tried on simple negligence and contributory negligence issues: Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex. 1963); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357 (1950); Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950); Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585 (1948); United Gas Corporation v. Crawford, 141 Tex. 332, 172 S.W.2d 297 (1943); Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625 (1941); McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442 (1941); Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698, 699 (1940); Gulf, C. & S. F. Ry. Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227 (1888); Dunlap v. Executive Inn Motor Hotel Corporation, 404 S.W.2d 842 (Tex.Civ. App.1966, writ ref'd n. r. e.); Mundy v. Stiles, 257 S.W.2d 750 (Tex.Civ.App.1953, writ ref'd n. r. e.); H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501 (Tex.Civ.App. 1949, writ ref'd n. r. e.); Texas & N. O. R. R. Co. v. Wood, 166 S.W.2d 141 (Tex.Civ. App.1942, no writ); Northcutt v. Magnolia Petroleum Co., 90 S.W.2d 632 (Tex.Civ.App. 1936, writ ref'd).
The facts in Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357 (1950), were that Mr. Blanks was a tenant on the ninth floor of the hotel. There was no elevator from the eighth to the ninth floor. He fell while ascending the steps in the dark stairs. The defendant hotel pleaded that it owed no duty because Mr. Blanks knew the stairs were dark, but the case was tried on negligence and contributory negligence issues.
There are many instances in which a person of ordinary prudence may prudently take a risk about which he knows, or has been warned about, or that is open and obvious to him. His conduct under those circumstances is a matter which bears upon his own contributory negligence. Contributory negligence is defined in the case sub judice as the "failure to use ordinary care. . . to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances." One'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. Those are matters which bear upon "the reasonableness of an actor's conduct in confronting a risk . . under principles of contributory negligence." Farley, supra, 529 S.W.2d at 758. See Annot., Premises Liability—Inside Hall, 24 A.L.R.3d 388, 391-92 (1969); Keeton, Assumption of Products Risks, 19 Sw. L.J. 61, 67-69 (1965). It was said in Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413, 417-18:
A plaintiff's knowledge, whether it is derived from a warning or from the facts, even if the facts display the danger openly and obviously, is a matter that bears upon his own negligence; it should not affect the defendant's duty. A plaintiff may be contributorily negligent as a matter of law by reason of his conduct after he possesses knowledge of the condition. A condition that is open and obvious is proof of knowledge and appreciation as a matter of law, Massman-Johnson v. Gundolf, 484 S.W.2d 555 (Tex.1972), but that phrase is not "a separate concept." Adam Dante, supra, 483 S.W.2d at 459. Knowledge and appreciation, though proved as a matter of law, do not necessarily establish contributory negligence as a matter of law. In a case that is controlled by the comparative negligence statute, a plaintiff's contributory negligence that is established as a matter of fact or as a matter of law must then be compared with the negligence of the other parties, assuming that there is a finding of proximate cause in each instance.
Coffee v. F. W. Woolworth Co., 536 S.W.2d 539 (Tex.1976), was recently before this court. It concerned an injury to Mrs. Coffee when she ran into an empty platform inside the defendant's store. The case was tried as a negligence case. The opinion stated the jury findings in support of the plaintiff's negligence theory, but the opinion did not state that the jury refused to find that the plaintiff failed to keep such a lookout as a person using ordinary care would have kept. Our opinion discussed the occupier's contention that the dangerous condition was open and obvious, and we held that the evidence did not establish that state of facts as a matter of law. We should have made clear in the opinion that an open and obvious condition relates to a plaintiff's conduct under the contributory negligence issue.
We conclude that there is evidence which supports the jury findings that Mrs. Parker was not contributorily negligent in undertaking to descend the stairs or in the manner in which she descended the stairs. Cf. United Gas Corporation v. Crawford, 141 Tex. 332, 172 S.W.2d 297 (1943). There is evidence that she did not go down the stairs in darkness. She waited until a flashlight was obtained and Judge Massey had successfully moved downstairs ahead of her. She was descending the steps while the light was directed at the steps she was descending. She was holding to the rail and moving slowly and cautiously. See Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953), Blanks v. Southland Hotel, supra; Lang v. Henderson, supra; Walgreen-Texas Co. v. Shivers, supra.
The plaintiff obtained findings that the defendant was negligent and that she was not negligent. We reverse the judgment of the court of civil appeals and affirm that of the trial court.
McGEE, J., concurs.
McGEE, Justice, concurring.
I agree with the opinion, but I would add that there should be no instruction to the