Premises Liability For A Malfunctioning Automatic Entry Gate

Attorney Answer

Often yes, but not simply because the gate malfunctioned. In Texas this is a premises liability claim, and the property owner or operator is generally responsible only if it knew or should have known the gate posed an unreasonable risk and failed to use reasonable care about it.

The duty depends on why you were there. A person on the property for the benefit of the owner or for the parties' mutual benefit is treated as an invitee, and that is the strongest position. In Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983), the Texas Supreme Court described the occupier's duty to an invitee as a duty to exercise reasonable care to protect against unreasonable risks of harm that the occupier knows about or should know about. Residents, their guests, customers and delivery drivers are usually in that category. Someone on the property without permission is not, and the duty owed is far narrower.

Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992), supplies the elements you would have to prove: that the owner had actual or constructive knowledge of the condition, that the condition posed an unreasonable risk of harm, that the owner failed to exercise reasonable care to reduce or eliminate the risk, and that the failure proximately caused the injury. Keetch also holds something worth knowing before you assume the case is easy. The fact that the owner created the condition can permit a finding of knowledge, but it does not establish knowledge as a matter of law. Knowledge stays a live question.

That is why the gate's history is the case. A gate that has closed on other vehicles, drifted shut early, or been reported as failing is a gate the owner should have known about. So are missing or broken safety sensors, a skipped service schedule, and complaints in a management file. If the gate had never done this before and was properly maintained, expect the owner to argue that nothing put it on notice. There may also be a separate claim against the company that installed or serviced the gate, which is a different question from the property owner's duty and one a lawyer should look at.

Expect an argument about your own share as well. Under Tex. Civ. Prac. & Rem. Code § 33.001 a claimant found more than 50 percent responsible recovers nothing, and § 33.012(a) reduces the award by the claimant's percentage. The owner will likely say you followed too closely behind the vehicle ahead or entered as the gate was already closing. That is the argument to expect, not a conclusion about your facts.

What you can do

1. Photograph the damage to the car and the gate itself, including the safety sensors, the control box, any posted signs and any visible make or model plate, before anything is repaired or replaced.

2. Report the incident to the property manager or owner in writing, keep a copy, and ask for their incident report number.

3. Ask the property manager in writing for the gate's maintenance and service records, the name of the company that services it, and any prior incident reports involving the same gate.

4. Write down the date, the time and anything the on-site staff said, and get the names of anyone who saw it.

5. Get a written repair estimate from a shop you choose, and keep it even if the insurer sends its own appraiser.

6. Ask your own insurer whether your collision coverage applies and whether it will pursue the property owner for what it pays, including your deductible.

7. Before signing anything the property owner or its insurer puts in front of you, ask a Texas lawyer what it releases.

Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. Tex. Civ. Prac. & Rem. Code § 16.003(a) generally requires suit for injury to property to be brought within two years after the day the cause of action accrues, and the same two-year period applies if you were also injured. When that period started on your facts, and whether anything changes it, is a question for a Texas attorney reviewing your actual dates. No date is calculated here.