§ 101.022.Duty Owed: Premise and Special Defects

The provision that makes most premises claims against government hard to win.

If a claim arises from a premise defect, the governmental unit owes only the duty that a private person owes to a licensee on private property — unless the claimant pays for the use of the premises.

A licensee is owed little. The duty is not to injure them wilfully, wantonly, or through gross negligence, and to warn of or make safe a dangerous condition of which the owner has actual knowledge and the licensee does not. Actual knowledge, not constructive knowledge — a governmental unit that should have discovered a hazard but did not owes nothing.

The payment exception restores the invitee duty, which includes a duty of reasonable inspection. A visitor who pays admission is owed materially more than one who does not.

Subsection (b) preserves two duties from the limitation. The reduced duty does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets, nor to the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning devices as the traffic device section requires.

"Special defect" is the concept that carries roadway claims, and the statute gives two examples rather than a definition — excavations and obstructions — which is why whether a given hazard is a special defect or an ordinary premise defect is so often the dispositive question.

Subsection (c) removes the payment exception on toll roads: for a premise defect on a toll highway, road, or street, the licensee duty applies regardless. Paying a toll is not paying for the use of the premises in the sense that would otherwise raise the duty.