Property Owner Facing a Claim After a Fall in the Yard

Q: Does a property owner have to tell their insurer about an injury on the property before a lawsuit is filed?

As a practical matter, yes, and sooner rather than later. Homeowners and general liability policies typically require prompt notice of an occurrence that could give rise to a claim, and in exchange the insurer takes on the defense and pays covered amounts up to the policy limits. Late notice can jeopardize that protection. It is also why owners are usually advised to route every letter, call and demand from the claimant to the insurer rather than negotiating or making payments directly, since informal payments and admissions can complicate coverage without resolving the claim.

Q: What does an injured visitor have to prove in a Texas premises-liability case?

Under Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992), a premises-condition claim by an invitee turns on four things: the owner or occupier had actual or constructive knowledge of the condition; the condition posed an unreasonable risk of harm; the owner or occupier failed to use reasonable care to reduce or eliminate the risk; and that failure proximately caused the injury. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983), states the underlying duty: reasonable care against unreasonable risks the occupier knows or should know about. Keetch also holds that an owner who created the condition may be found to have known of it, but that fact alone does not establish knowledge as a matter of law.

Q: Does being partly at fault stop a premises-liability recovery in Texas?

Not unless the injured person's share is large enough. Tex. Civ. Prac. & Rem. Code § 33.001 bars recovery only if the claimant's percentage of responsibility is greater than 50 percent. Below that line, § 33.012(a) reduces the damages by the claimant's own percentage. Texas is not a pure comparative-fault state, and it is not a state where one defendant automatically owes the whole judgment: under § 33.013(a) a defendant generally pays only its own percentage, unless § 33.013(b) applies because that defendant is more than 50 percent responsible or acted in concert in certain intentional conduct.

Question

Someone fell in my yard, and she claims she was hurt and wants compensation.

A. Jason Velez · Accepted Answer

Someone falling on your property does not automatically make you responsible for it. But do not ignore the demand, and do not try to settle it yourself — the first call should be to your homeowners insurer. Texas does not treat a property owner as an insurer of everyone who comes onto the land. What you owed the person depends on why she was there and on what you knew about the condition she fell on. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983), states the duty owed to an invitee — reasonable care to protect against unreasonable risks of harm the occupier knows or should know about. A visitor to a private yard is often placed in a different category than a customer at a business, and that classification changes what you had to do. It is one of the first things a lawyer or an insurance adjuster will sort out, and it can end the claim. Whatever the category, she has to prove the elements set out in Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992): that you had actual or constructive knowledge of the condition, that it posed an unreasonable risk of harm, that you failed to use reasonable care to reduce or eliminate the risk, and that this caused her injury. Wanting compensation is not the same as proving those things. Uneven ground, a slope, a normal yard in normal condition — those are usually not hidden hazards. A hole you knew about and left uncovered, a broken step, a sprinkler line she could not see in the dark, a dog run wire strung across a path: those are different, because the knowledge element is satisfied. Her own care counts too. Under Tex. Civ. Prac. & Rem. Code § 33.001, a claimant found more than 50 percent responsible recovers nothing at all, and under § 33.012(a) any lesser share reduces what she can recover by her own percentage. Under § 33.013(a), each responsible party generally pays only its own percentage, with the narrow exceptions in § 33.013(b). The most important practical point: most homeowners policies require prompt notice of an occurrence that could lead to a claim, and in exchange the insurer both defends you and pays what you are legally obligated to pay, up to the limits. Handling this on your own — arguing about it, or paying her something to make it go away — can put that protection at risk and rarely ends the matter. What you can do 1. Report it to your homeowners insurer now, in writing, even though no lawsuit has been filed. Tell them what you know and let them open a file. 2. Photograph the exact spot today, before anything changes or gets repaired, along with the approach she took, the ground surface, and the lighting. Include something for scale. 3. Write down what you actually observed and when — the date, the time, the weather, who was present, what she said, and why she was on your property. Give that to your insurer, not to her. 4. Do not discuss fault with her, do not apologize in writing for causing it, and do not offer or make any payment toward her bills. Those things get used later and buy nothing. 5. Send every letter, call, bill, form and message from her or anyone acting for her straight to your insurer, and let the insurer respond. Do not give a recorded statement to her side. 6. Fix a genuine hazard if there is one, for safety — but photograph it first, exactly as it was. 7. If you have no homeowners coverage, or your insurer says it will not defend you, talk to a Texas attorney right away. In that situation the defense would be yours to pay for, and the sooner it is set up the cheaper it is. Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts with a Texas attorney is worth more than any general guidance, including this page. ⏱ Time limits apply. Tex. Civ. Prac. & Rem. Code § 16.003(a) requires a suit for personal injury to be brought not later than two years after the day the cause of action accrues, so your exposure is not open-ended — but do not assume it has run, and do not count the date yourself. Have a Texas attorney or your insurer confirm where the claim stands, and keep your photographs and notes until it is closed.

Property Owner Facing a Claim After a Fall in the Yard

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