by George Christian
Reversing a decision by the San Antonio Court of Appeals with significant negative consequences for property owners and general contractors, the Texas Supreme Court has ruled for the first time that independent contractors may not recover in premises liability for an injury resulting from an open and obvious danger. TCJL previously filed an amicus brief urging the Texas Supreme Court to grant review and reverse the court of appeals.
JMI Contractors, LLC v. Jose Manuel Medellin (No. 24-0846; June 26, 2026) arose from an injury accident at a construction site. JMI, a restoration and renovation company, retained Hernandez, an independent roofing specialist, to do the roofing work on an apartment project. Hernandez brought in another independent contractor, Medellin, whom he had worked with in the past, to assist in performing the work. While working on the flat roof, Medellin, while rolling out a sheet of material for a waterproof seal, stepped backward and fell off the roof. He sued JMI for negligence, gross negligence, and premises liability.
A jury awarded more than $4.6 million in damages, including $1.3 million in mental anguish damages and $1 million in punitive damages. JMI appealed. A split San Antonio Court of Appeals affirmed, applying the necessary-use exception to an independent contractors despite the fact that SCOTX had never done that. JMI sought review, which SCOTX granted.
In an opinion by Justice Hawkins, a unanimous Court reversed and rendered judgment for JMI. First, the Court took up the jury’s finding of liability against JMI on Plaintiff’s negligent activity theory (it also found liability on his premises liability claim). JMI argued that Plaintiff’s theory failed as a matter of law because the “injury arose from nonfeasance—an unguarded roof edge,” rather than a malfeasance, a contemporaneous negligent act by another person. The Court agreed. After reviewing 80 years of SCOTX authority, Justice Hawkins concluded that “we have time and time again addressed the distinction between premises liability and negligent activity” and has consistently ruled that a claim may sound in one or the other, but not both. In fact, the only case in which the Court has recognized a negligent-activity claim in the construction accident context, Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001), neither party asserted a premises liability theory at all. The decision rather turned on “the general contractor’s decision to fully control the particular plaintiff’s activity in a way that creates a heightened danger that in turn causes that plaintiff’s injury.” In any event, the Court went on, Plaintiff’s injury in this case nonfeasance, not the general contractor’s malfeasance, so the case sounded in premises liability. The Court left the question of whether both nonfeasance and malfeasance could occur in a single-injury case to another day. And whether one or the other occurred in a particular case is for the court to decide as a matter of law based on “the essence or gravaman of that particular claim against that particular defendant.” Additionally, the Court added, a plaintiff has to prove that “the defendant retained full control over the plaintiff’s activity and increased the risk of injury by creating a danger.” We may someday see a case that satisfies this very high bar for a negligent-activity claim, but this case was not one of them.
Turning to the premises liability claim, the Court rejected Plaintiff’s contention (and the court of appeals’ ruling) that although the danger was open and obvious, Defendant owed a duty of care to Plaintiff under the necessary-use exception. This exception “provides that despite an invitee’s awareness of the risk presented by an open and obvious condition, a landowner or occupier may nevertheless by liable if the invitee must necessarily confront the dangerous condition and the owner or occupier ‘should have anticipated that the invitee is unable to take measures to avoid the risk’” (citation omitted). As Justice Hawkins pointed out, the Court has twice questioned whether the exception should even apply to general contractors or owners in connection with open and obvious conditions on a jobsite. The Court has now answered the question: the exception does not apply.
This ruling flowed directly from the Court’s prior holdings that independent contractors were at least as well-equipped as general contractors or owners either to avoid or mitigate open and obvious dangers. Contractors who are hired to do a particular job are expected to know how to do it and have the freedom to refuse a job that they believe is too dangerous. In the present instance, Plaintiff was an experienced roofing contractor, knew of the inherent dangers of working on roofs, brought his own equipment to the worksite, and recognizes both the benefits and drawbacks of using harnesses or lanyards while working on a roof. The necessary-use exception simply does not apply in this context. The Court reversed the court of appeals and rendered a take-nothing judgment in favor of JMI.
Justice Busby filed a concurring opinion agreeing with the Court’s determination that JMI did not retain control over Plaintiff’s work activity but emphasized that the decision “[did] not modify our retained-control precedents in reaching this conclusion but simply applies them.”
This is a sound decision that closes a dangerous loophole in the general rule that property owners and general contractors have no duty to an invitee to safeguard against injuries arising from an open and obvious condition on the property. Justice Hawkins’s opinion should also be read by any and all lawyers who pursue or defendant premises liability claims. It clearly lays out the development of Texas law, the policy decisions underlying the law, and the various fact patterns that implicate premises and negligent-activity theories.
