Hnmc, Inc. v. Francis S. Chan, Individually and as Personal Representative of the Estate of Leny Rey Chan, Jonathan Chan, and Justin Chan

Supreme Court of Texas
══════════
No. 22-0053
══════════

HNMC, Inc.,
Petitioner,

v.

Francis S. Chan, Individually and as Personal Representative of
the Estate of Leny Rey Chan, Jonathan Chan, and Justin Chan,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
═══════════════════════════════════════

Argued September 14, 2023

JUSTICE BUSBY delivered the opinion of the Court.

This personal injury case concerns whether a property owner has
a duty to make an adjoining public roadway safe from—or otherwise
warn of—careless third-party drivers. A nurse was struck and killed by
such a driver while crossing the public street next to the hospital where
she worked. The trial court and court of appeals held that the hospital
owed a specialized, case-specific duty to the nurse because the layout of
its exit and parking lot created a situation in which injury to others was
foreseeable.
We hold that courts should not attempt to craft case-specific
duties when recognized duty rules apply to the factual situation at hand.
Under these recognized rules, the hospital had a limited duty as a
premises occupier based on its exercise of control over certain parts of
the adjoining public right-of-way. But there is no evidence that any
dangerous condition the hospital controlled in the right-of-way caused
the nurse’s harm. Accordingly, we reverse and render a take-nothing
judgment.

BACKGROUND

Defendant HNMC owns and operates a hospital and a fenced
parking lot in Northwest Houston. The hospital and lot are on either
side of Cali Drive, a North–South street owned and maintained by
Harris County. The county’s right-of-way for Cali Drive extends past
either side of the street and includes the curb, grass medians, and
sidewalks.
One exit from the hospital opens to stairs that lead down to the
sidewalk abutting Cali Drive in the middle of the block. Near the bottom
of the stairs, in the county right-of-way, HNMC constructed a concrete
pad between the sidewalk and the street. The record includes evidence
that HNMC built the pad to help drivers drop off and pick up passengers
on Cali Drive. The pad is located across Cali Drive from the driveway
that cars use to enter and exit the parking lot. But the hospital exit and
the parking lot driveway do not line up exactly—the driveway is a few
feet North of the hospital exit. On the parking-lot side of the street,

2
HNMC placed traffic control signs in the county right-of-way to the
North of the driveway.
There are crosswalks at each end of the block that connect the
hospital to the parking lot’s pedestrian gates. But rather than walking
to the end of the block, using the crosswalks, and using the pedestrian
gates to access the lot, many of the hospital’s patients, visitors, and
employees who exit the building here simply cross Cali Drive in the
middle of the block and enter the lot through the driveway. There was
a crosswalk in the middle of the block as recently as 2011, but the county
abandoned the crosswalk, and its markings faded over time. The
abandoned crosswalk did not line up with the hospital exit, the concrete
pad, or the parking lot driveway. Instead, the abandoned crosswalk was
located a few feet South of the hospital exit and the concrete pad.
From 2008 through 2012, there were several vehicle accidents on
Cali Drive involving pedestrians. Concerned, HNMC wrote to the
county in 2009, asking it to implement new safety measures on Cali
Drive. The county conducted a traffic study, undertook some safety
measures, and unilaterally recommended that HNMC take additional
safety measures. HNMC did not take the recommended measures.
In 2015, after HNMC declined to take the safety measures and
after the abandoned crosswalk had mostly faded, Leny Chan was killed
while crossing Cali Drive. A nurse employed by HNMC for more than
30 years, Chan was leaving work and walking to her car located in the
HNMC parking lot. She came out of the hospital exit and proceeded to
cross Cali Drive in the middle of the block, intending to enter the
parking lot via the driveway.

3
At the same time, James Budd was beginning to leave the parking
lot in his car. He reached the driveway, pulled up past the traffic control
signage located in the right-of-way to his right, and stopped. He looked
to his left (South), his right (North), and then looked forward as he began
to turn left out of the parking lot to proceed South on Cali Drive. Budd
struck Chan as he was turning left. Emergency services responded, but
Chan died that evening as a result of her injuries.
Chan’s estate and surviving family members (collectively Chan)
sued Budd and Siemens Medical Solutions USA, Inc., Budd’s employer.
Siemens designated HNMC and Harris County as responsible third
parties, and Chan then added HNMC as a defendant. At the end of trial,
the jury was given an ordinary negligence charge and found all parties
negligent. The jury apportioned liability as follows: 40% to Budd, 30%
to Harris County, 20% to HNMC, and 10% to Chan. The trial court
rendered judgment on the verdict, and Chan settled with Budd and
Siemens.
HNMC appealed, arguing among other things that (1) it owed no
duty to Chan, (2) Chan failed to obtain a premises liability finding,
(3) there is no evidence of liability or damages, and (4) any liability is
barred by the Workers’ Compensation Act because Chan was an HNMC
employee leaving work when she was killed. A panel of the court of
appeals agreed with the first argument and reversed, holding that
HNMC had no duty to ensure Chan’s safety while crossing the street
and rendering a take-nothing judgment. HNMC, Inc. v. Chan, No. 14-
18-00849-CV, 2020 WL 2832780, at *1 (Tex. App.—Houston [14th Dist.]

4
May 28, 2020), withdrawn and superseded on reconsideration en banc,
637 S.W.3d 919 (2021).
But the court granted reconsideration en banc and affirmed the
trial court’s judgment in a 5-4 decision. Chan, 637 S.W.3d at 926. The
en banc majority noted the general rule that property owners owe no
duty to make safe public roadways appurtenant to their property and
identified four exceptions to that rule. Id. at 929. Instead of applying
any of these rules, however, the majority recognized a new duty specific
to this situation by analyzing the factors listed in Greater Houston
Transportation Co. v. Phillips. Chan, 637 S.W.3d at 930-36 (citing
Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). The majority next concluded
that HNMC had invited any error regarding the failure to secure a
premises liability finding and that sufficient evidence supported the
verdict. Id. at 936-940. And the majority held that HNMC failed to
assign error to the trial court’s refusal to apply the Workers’
Compensation Act because HNMC’s appellate brief attacked only the
denial of its motion for summary judgment, which is not reviewable on
appeal following a trial. Id. at 928 (citing Cincinnati Life Ins. Co. v.
Cates, 927 S.W.2d 623, 625 (Tex. 1996)).1

1 Federal precedent had similarly been against the reviewability of a

denial of summary judgment, but the Supreme Court of the United States
recently held that the denial of summary judgment on purely legal grounds
may be challenged on appeal. Dupree v. Younger, 598 U.S. 729, 735-36 (2023).
Because we decide this case on duty and evidentiary issues, we have no
occasion to consider whether Dupree should inform our own standard on the
reviewability of summary judgment denials.

5
ANALYSIS

HNMC raises two issues in its petition for review. First, it argues
that it did not owe a duty of reasonable care to Chan while she was
crossing Cali Drive. Second, HNMC contends that because Chan was
leaving her place of employment when she was hit, the Workers’
Compensation Act bars any liability to HNMC, her employer. Because
both issues raise questions of law, we review them de novo. Aleman v.
Tex. Med. Bd., 573 S.W.3d 796, 802 (Tex. 2019).

I. HNMC had a limited duty to Chan because it placed a
concrete pad, driveway, and signs in the county
right-of-way.

“The threshold inquiry in a negligence case is duty.” Elephant
Ins. Co., LLC v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022) (quoting
Phillips, 801 S.W.2d at 525). Whether a defendant owes a plaintiff a
duty “is a question of law for the court to decide from the facts
surrounding the occurrence in question.” Phillips, 801 S.W.2d at 525.
But courts should only consider recognizing a new duty “[w]hen a duty
has not been recognized in particular circumstances.” Pagayon v. Exxon
Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017); see also Kenyon, 644
S.W.3d at 144. If a court has not already decided whether certain
circumstances will give rise to a duty, the relevant question is “whether
a duty should be imposed in a defined class of cases.” Pagayon, 536
S.W.3d at 504; see also Houston Area Safety Council, Inc. v. Mendez, 671
S.W.3d 580, 583 (Tex. 2023). We therefore begin our analysis by
considering whether certain recognized duty or no-duty rules apply in
these circumstances.

6
A. Because duty rules already address this class of
cases, the Phillips factors should not be used to
create a duty.

Relying on authority from other courts of appeals, the en banc
majority identified a background no-duty rule and four “exceptions” in
which a premises owner may owe a duty to persons who are not on its
property. Chan, 637 S.W.3d at 929-930. Our Court’s precedent has
described these rules somewhat differently.
The majority correctly articulated a background no-duty rule for
adjacent streets: “a property owner . . . has no duty to ensure the safety
of a person who leaves the owner’s property and suffers injury on an
adjacent public roadway, or to ensure that person’s safety against the
dangerous acts of a third party.” Id. at 929. As we explain below, this
rule is supported by our precedent, and it applies to a defined class of
cases that includes the facts of this case.
The en banc majority then opined that this rule “is subject to
certain exceptions,” and it cited several of our cases. Id. But most of the
cases cited do not directly address duties on public roads, so they are not
truly exceptions to the background no-duty rule. Rather, they describe
certain classes of cases in which we have recognized that a defendant
can owe a duty on premises it does not own or occupy. And the parties
in this case dispute whether the facts here—which do involve a public
road—fall within any of these classes.2

2 We confine our analysis to the duty rules addressed by the parties and

do not attempt to identify an exhaustive list of rules that could inform whether
a duty exists on these facts. See In re City of Lubbock, 666 S.W.3d 546, 556
(Tex. Crim. App. 2023) (citing United States v. Sineneng-Smith, 140 S. Ct.

7
The first duty is that owed by a party who “undertakes to make
[a] premises safe for others.” Wilson v. Tex. Parks & Wildlife Dep’t, 8
S.W.3d 634, 635 (Tex. 1999). The second is the duty owed by a
landowner whose land contains a dangerous condition or excavation
appurtenant to a public highway. See Alamo Nat’l Bank v. Kraus, 616
S.W.2d 908, 910 (Tex. 1981). The third is the duty owed by a property
owner or occupier who assumes actual control of adjacent property. See
Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324 (Tex. 1993).
And the fourth is the duty owed by a property owner or occupier who
knows of an obscured danger near the entrance or exit of his property.
See Renfro Drug Co. v. Lewis, 235 S.W.2d 609, 615 (Tex. 1950). We
discuss each of these duties below.
After setting out all of these rules regarding duty, the majority
did not analyze their application. Instead, it proceeded to apply the
factors listed in Greater Houston Transportation Co. v. Phillips to
determine whether HNMC owed a duty to Chan. See Chan, 637 S.W.3d
at 930-36. This was error.
When a duty or no-duty rule already exists that contemplates a
particular case’s factual situation, the balance addressed in Phillips has
been struck. Thus, there is no need to apply the Phillips factors, and
doing so is improper. The Phillips factors are inapplicable in cases
where there is a duty rule that takes the factual circumstances at issue
into account. See Pagayon, 536 S.W.3d at 503; cf. Mendez, 671 S.W.3d
at 583-85 (analyzing whether existence of duty “remained an open

1575, 1579 (2020)); Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 782 (Tex.
2020).

8
question” before applying Phillips factors). And even when there is no
duty rule, the analysis contemplated in Phillips may only be used to
identify a class of cases in which a duty exists, not to craft a duty tailored
to the unique facts of an individual case. As we have explained, “the
factual situation presented must be evaluated in the broader context of
similarly situated actors. The question is whether a duty should be
imposed in a defined class of cases, not whether the facts of the case at
hand show a breach.” Pagayon, 536 S.W.3d at 504.
Here, the en banc majority recognized that at least one of the duty
rules applies to the factual circumstances in this case: a property owner
or occupier generally owes no duty to make an appurtenant roadway
safe for those leaving the property. That recognition alone demonstrates
that balancing the Phillips factors is inappropriate. Moreover, as our
analysis below makes clear, other rules addressing when a landowner
owes a duty to persons not on its property can also be applied to help
answer the duty question on these facts. For these reasons, the majority
erred in analyzing duty by balancing the Phillips factors.

B. HNMC owed Chan a limited duty because it
exercised some control over the adjacent
right-of-way.

Having concluded that the Phillips factors are not a proper
framework for analyzing the duty question in this case, we next consider
whether the various duty rules identified by the court of appeals and
addressed by the parties give rise to a duty here. We address each rule
in turn.

9
1. HNMC had no duty to ensure Chan’s safety
while she was crossing an adjacent public
road.

We first consider the background no-duty rule articulated by the
en banc majority: “a property owner . . . has no duty to ensure the safety
of a person who leaves the owner’s property and suffers injury on an
adjacent public roadway, or to ensure that person’s safety against the
dangerous acts of a third party.” Chan, 637 S.W.3d at 929. We described
the principle behind this “well-established rule of law” in Grapotte v.
Adams, holding that a property owner had no duty to ensure the safety
of a sidewalk abutting his property because the sidewalk was
maintained by the city, so any duty would rest on the city rather than
the neighboring owner. 111 S.W.2d 690, 691 (Tex. 1938). We have also
recognized time and again that generally “one person is under no duty
to control the conduct of another.” Nabors Drilling, U.S.A., Inc. v.
Escoto, 288 S.W.3d 401, 404 (Tex. 2009).3
This no-duty rule contemplates the factual situation in this case.
Chan left HNMC’s property and was struck in the public roadway by a
careless driver. As acknowledged by the Restatement, “no one would
think that a land possessor did have a duty of care to others for
conditions not caused by the possessor on public highways and streets
adjacent to the possessor’s land.” RESTATEMENT (THIRD) OF TORTS:

3 See also Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 720 (Tex.

1995) (“As a general rule, there is no legal duty in Texas to control the actions
of third persons.”); Phillips, 801 S.W.2d at 525 (same); Otis Eng’g Corp. v.
Clark, 668 S.W.2d 307, 309 (Tex. 1983) (“As a general rule, one person is under
no duty to control the conduct of another.” (citing RESTATEMENT (SECOND) OF
TORTS § 315 (Am. L. Inst. 1965))).

10
LIABILITY FOR PHYSICAL & EMOTIONAL HARM § 54 cmt. d (Am. L. Inst.
2012). Moreover, HNMC was under no duty to control the actions of
Budd, the careless third-party driver who struck Chan.
Because this rule applies to the factual situation at issue here,
HNMC owed no duty to Chan on the ground that she had left its
property and was crossing an adjacent roadway. Thus, we turn to the
other duty rules identified by the parties.

2. HNMC did not agree or contract to make the
road safe for others.

We next consider the duty that applies when “a person . . . agrees
or contracts, either expressly or impliedly, to make safe a known,
dangerous condition of real property.” Holland v. Mem’l Hermann
Health Sys., 570 S.W.3d 887, 897 (Tex. App.—Houston [1st Dist.] 2018,
no pet.). We addressed this rule in Wilson v. Texas Parks & Wildlife
Department, holding that “a party who does not own, occupy, or control
[the] premises may nevertheless owe a duty of due care if it undertakes
to make the premises safe for others.” 8 S.W.3d at 635; see also City of
Denton v. Page, 701 S.W.2d 831, 834-35 (Tex. 1986). Wilson makes clear
that this duty rule springs from the common-law doctrine of negligent
undertaking, which sounds in ordinary negligence. See 8 S.W.3d at 635
n.4 (quoting RESTATEMENT (SECOND) OF TORTS § 323 (Am. L. Inst.
1965)); see also Kenyon, 644 S.W.3d at 151 (explaining the doctrine).
In this case, there is no evidence that HNMC agreed or contracted
with anyone to reduce or eliminate the danger of crossing Cali Drive.
Instead, HNMC reached out to the county—the entity responsible for
the safety of the street—and requested that it make changes. By asking

11
a neighboring landowner to make its property safer, the requesting
party does not undertake that obligation itself. The record also shows
that the county responded in part by unilaterally suggesting that
HNMC perform certain tasks, but HNMC did not do so. HNMC’s
inaction is not an agreement—express or implied—to make crossing
Cali Drive safer. See Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013)
(explaining that claim for negligent undertaking requires that “the
defendant undertook to perform services” for another). Accordingly,
HNMC did not undertake a duty to Chan.

3. The artificial conditions HNMC created were
either not on its property or not unreasonably
dangerous.

Next, we consider the duty of an “owner or occupant of premises
abutting a highway” to refrain from “jeopardiz[ing] or endanger[ing] the
safety of persons using the highway as a means of passage or travel.”
Kraus, 616 S.W.2d at 910. This duty rule, which we articulated in
Kraus, sounds in premises liability and has a long history. See Atchison
v. Tex. & Pac. Ry., 186 S.W.2d 228, 229 (Tex. 1945). Our cases have
applied it only when the premises owned or occupied by the defendant
contains “an excavation or other artificial condition so near an existing
highway that [the owner or occupier] realizes or should realize that it
involves an unreasonable risk to others . . . traveling on the highway.”
RESTATEMENT (SECOND) OF TORTS § 368. Notably, this rule applies only
to conditions that, “as and when created, involve unreasonable risk of
physical harm to persons outside the land because of their plan,
construction, location, or otherwise.” Id. § 364 cmt. a; see also id. § 368
cmt. a (explaining that section 368 is a “special application of the rule

12
stated in [section] 364”). Moreover, the rule applies only when the
property owner or possessor “knows or should know [the condition is]
unreasonably dangerous.” Id. § 368 cmt. h.
Unlike the next rule we discuss, this particular rule does not
address conditions outside the land, so it imposes no duty on HNMC
regarding the conditions it created in the county right-of-way.
Accordingly, the concrete pad, the parking lot driveway, and the signs
cannot support a duty under this rule. In addition, there is no evidence
that the conditions Chan identifies on HNMC’s property—the hospital
exit, the stairs leading down to the street, and the parking lot itself—
were dangerous. Nothing inherent in those conditions presented an
unreasonable risk of harm to those traveling on Cali Drive.
Accordingly, HNMC owed no duty to Chan under this rule.
The parties also discuss some court of appeals decisions that have
applied the Kraus rule to the release of a dangerous agency from a
landowner’s property onto a public road.4 We have not had an
opportunity to address this application of the rule, which appears to be
rooted in a different section of the Restatement recognizing liability for

4 See, e.g., Hirabayashi v. N. Main Bar-B-Q, Inc., 977 S.W.2d 704, 707

(Tex. App.—Fort Worth 1998, pet. denied) (concluding duty applied “where an
owner negligently releases upon the highway ‘an agency that becomes
dangerous by its very nature once upon the highway’” (quoting Naumann v.
Windsor Gypsum, Inc., 749 S.W.2d 189, 191 (Tex. App.—San Antonio 1988,
writ denied))); Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d 343, 350
(Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (holding nursing home
liable for failing to keep patient from wandering onto the highway). But see
Cabrera v. Spring Ho Festival, Inc., No. 03-09-00384-CV, 2010 WL 3271729, at
*4 (Tex. App.—Austin Aug. 20, 2010, no pet.) (holding crowd dispersing onto
highway was not sufficiently dangerous to implicate this rule).

13
“an activity” on the land that “involve[s] an unreasonable risk of
physical harm” to “others outside of the land.” RESTATEMENT (SECOND)
OF TORTS § 371. This case provides us with no such opportunity, as there

was no negligent activity on HNMC’s land that could give rise to a duty.

4. HNMC exercised control over parts of the
right-of-way by constructing the concrete pad,
driveway, and signs.

We next consider the duty that applies to a property owner or
occupier who “assumes actual control over a portion of adjacent
property.” Guereque v. Thompson, 953 S.W.2d 458, 467 (Tex. App.—El
Paso 1997, pet. denied). We recognized this duty in Wal-Mart Stores,
Inc. v. Alexander, holding that “[a] lessee is responsible for those areas
adjacent to the demised premises which it actually controls.” 868
S.W.2d at 324.5 When Wal-Mart built a ramp in a parking lot adjacent
to its leased premises “[o]n its own initiative and at its own expense,”
we applied this rule to conclude that “it assumed actual control of the
ramp area” and thus “had a duty of reasonable care to maintain the
safety of the ramp.” Id. at 324-25.6 But “an owner or occupier of land

5 See also Page, 701 S.W.2d at 834-35; Holland, 570 S.W.3d at 897 (“A

lessee who assumes actual control over a portion of adjacent property also
assumes legal responsibility for that adjacent portion.” (quoting Hirabayashi,
977 S.W.2d at 707)); RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL
& EMOTIONAL HARM § 49 Reporters’ Note cmt. a. We have also “recognized
that under some circumstances, one who creates a dangerous condition, even
though he or she is not in control of the premises when the injury occurs, owes
a duty of due care.” Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.
1997).
6 See also County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002)

(“The relevant inquiry is whether the defendant assumed sufficient control

14
has no duty to ensure the safety of others on adjacent property that is
not within its control.” Holland, 570 S.W.3d at 897; see also Grapotte,
111 S.W.2d at 691 (looking to actual control to determine whether
defendant owed duty to make appurtenant sidewalk safe).
Here, the parties agree that HNMC exercised control over parts
of the county-owned right-of-way adjacent to its property by
constructing a concrete pad next to the street on the hospital side of Cali
Drive, constructing a driveway over the right-of-way on the other side
for cars to use in traveling between the parking lot and the street, and
erecting traffic control signs in the right-of-way next to the driveway.
Accordingly, HNMC had a duty to address any dangerous conditions in
those limited areas of the right-of-way where it actually exercised
control.

5. A careless driver in the public road is not an
obscured danger.

Finally, we consider the duty that applies to property owners and
occupiers when “an obscured danger exists on land directly appurtenant
to the land owned or occupied, and where that danger is near a place
where invitees enter and exit the landowner’s or occupier’s property.”
Holland, 570 S.W.3d at 897. This duty sounds in premises liability, and
we applied it in Renfro Drug. 235 S.W.2d at 615 (“The duty to keep the
premises in a reasonably safe condition was not limited to the rented . . .

over the part of the premises that presented the alleged danger so that the
defendant had the responsibility to remedy it.”); cf. Martinez, 941 S.W.2d at
912 (holding that “[b]y simply erecting a wall around its own leased premises
to separate that space from the rest of the building, Science Spectrum did not
exercise control over the area adjacent to its premises”).

15
space alone but extended as well to the entrances into and the exits from
the [occupied space].”). On the other hand, a property owner or occupier
has no duty to make safe or warn of a “dangerous condition that is
undisputedly open and obvious.” SandRidge Energy, Inc. v. Barfield,
642 S.W.3d 560, 563 (Tex. 2022) (citing Los Compadres Pescadores,
L.L.C. v. Valdez, 622 S.W.3d 771, 788 (Tex. 2021) (citing
Massman-Johnson v. Gundolf, 484 S.W.2d 555, 556-57 (Tex. 1972))).
Here, Chan was injured by an open and obvious danger: a careless
driver. Although she characterizes certain conditions both on and off
HNMC’s property as dangerous and asserts that those conditions
contributed to the situation that led to Chan’s death, nothing about the
conditions she identifies was obscured or made those conditions
dangerous in and of themselves. See Chan, 637 S.W.3d at 960-61
(Jewell, J., dissenting). Rather, it was Budd’s careless driving that
ultimately killed Chan, and nothing about that danger was obscured
either. The risk of injury inherent in crossing any busy street as a
pedestrian is unquestionably open and obvious. HNMC thus owed no
duty under this rule.

II. HNMC’s limited duty does not support the judgment.

Having determined the contours of the duty owed by HNMC, we
next consider whether the jury’s finding that HNMC was negligent
supports the judgment in Chan’s favor. We conclude that it does not.
Under the negligence question submitted to the jury, we hold there is no
evidence that a dangerous condition controlled by HNMC proximately
caused Chan’s death.

16
The jury charge. Before addressing the sufficiency of the
evidence, we caution that parties should consider carefully whether each
applicable duty sounds in premises liability or ordinary negligence so
that the correct question(s) can be included in the jury charge. We have
held in several cases that a jury’s affirmative answer to an ordinary
negligence question cannot support a recovery for injury caused by a
premises defect. E.g., United Scaffolding, Inc. v. Levine, 537 S.W.3d
463, 472 (Tex. 2017). Absent special instructions or definitions, a jury
question regarding negligent activity does not include the essential
elements of a defendant’s liability for failing to exercise reasonable care
in warning about or making safe a dangerous premises condition. See
id. (citing Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529
(Tex. 1997); Keetch v. Kroger Co., 845 S.W.2d 262, 266-67 (Tex. 1992);
H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259-60 (Tex. 1992)).
Thus, if a defendant properly preserves the issue, the remedy for
submitting a negligent activity question when the defendant’s duty
sounds in premises liability is rendition of a take-nothing judgment.
United Scaffolding, 537 S.W.3d at 483.
As discussed above, some of the duties addressed by the parties
here sound in ordinary negligence while others sound in premises
liability. The exercise-of-control duty that we have concluded HNMC
owed sounds in premises liability. In Wal-Mart Stores v. Alexander, we
held that a property owner or occupier “is responsible for those areas
adjacent to the demised premises which it actually controls.” 868
S.W.2d at 324. In so doing, we cited the Second Restatement’s definition
of “possessor of land” for the assertion that a party exercising actual

17
control over land owes premises-type duties in the area it controls. See
id. (citing RESTATEMENT (SECOND) OF TORTS § 328E; Atchison, Topeka &
Santa Fe Ry. v. Smith, 563 S.W.2d 660, 665-66 (Tex. Civ. App.—Waco
1978, writ ref’d n.r.e.); Howe v. Kroger Co., 598 S.W.2d 929, 930 (Tex.
Civ. App.—Dallas 1980, no writ)). Accordingly, to hold a defendant
liable for breaching this duty with respect to defective conditions it
controls, a premises liability question must be submitted to the jury.
But in this case, the jury charge included only an ordinary
negligence question and instructions. The charge defined negligence as
“the failure to use ordinary care” and then asked whether “the
negligence, if any, of [Budd, HNMC, Chan, or Harris County]
proximately cause[d Chan’s] death.” The charge thus failed to include
the essential elements of a premises liability claim. See United
Scaffolding, 537 S.W.3d at 472 (citing Corbin v. Safeway Stores, Inc.,
648 S.W.2d 292, 296 (Tex. 1983)).
The en banc majority held that HNMC invited any charge error
by opposing a premises liability submission requested by a different
defendant. See Chan, 637 S.W.3d at 937 (citing Del Lago Partners, Inc.
v. Smith, 307 S.W.3d 762, 775 (Tex. 2010)). Chief Justice Christopher
disagreed in dissent, contending that it was Chan’s obligation to ensure
that a charge sufficient for her theory of liability was submitted to the
jury, and HNMC was under no obligation to object to the incorrect
submission. See id. at 950 (Christopher, C.J., dissenting) (citing United
Scaffolding, 537 S.W.3d at 481). Because HNMC has not challenged the
majority’s holding about invited error in this Court, we express no view
regarding whether it was correct.

18
The evidence. Instead, HNMC argues that the charge required
proof of breach and proximate cause that Chan failed to provide. Having
reviewed the record, we conclude that no reasonable jury could find that
the areas of the public right-of-way controlled by HNMC included
unreasonably dangerous conditions that proximately caused Chan’s
death. Ultimately, the hazard Chan faced was a careless driver on Cali
Drive: a hazard for which HNMC was not responsible in an area where
it had not exercised control.
The concrete pad and driveway: The evidence at trial showed
that HNMC installed both the concrete pad and the parking lot driveway
in the public right-of-way on opposite sides of Cali Drive. Chan contends
that these features, combined with the location of the hospital exit and
adjoining stairs on HNMC’s property, “concentrated” vehicles and
pedestrians into the same area and “funneled” exiting pedestrians over
the public sidewalk and HNMC’s concrete pad, into the public street and
through the county’s abandoned crosswalk, and then across the public
right-of-way on the other side and into the driveway of HNMC’s parking
lot.
But the record shows that HNMC did not control the abandoned
crosswalk, and that the crosswalk did not connect to either the pad or
the driveway—it was located to the South of both. In addition, there is
no evidence that the condition of the pad or the driveway posed an
unreasonable risk of harm. For example, there were no “funneling” rails
or other barriers on the sidewalk or concrete pad that made it
unreasonably difficult for Chan to access the marked crosswalks at the
ends of the block.

19
Nor is there any evidence that Budd’s careless driving upon
exiting the driveway was influenced by the condition of the driveway.
When Chan faced the driver in the street, both she and the driver had
left the area of the public right-of-way where HNMC exercised control.
For these reasons, no reasonable jury could find that HNMC breached
its duty regarding a dangerous condition of the pad or driveway in a
manner that proximately caused Chan’s death.
The signs: Chan also contends that the signs HNMC placed in
the right-of-way North of the driveway blocked the view of drivers
exiting the parking lot. But Budd gave uncontroverted testimony that
he pulled up beyond the signs to his right and stopped before observing
Cali Drive in each direction, and that he was looking forward—in the
direction his vehicle was moving and away from the signs—when he
turned left out of the parking lot and struck Chan. Another HNMC
employee walking with Chan confirmed that Budd was looking forward
when he hit Chan. The signs to Budd’s right thus did nothing to obscure
his view to the left, where he was turning and Chan was crossing. And
Chan’s crossing location was in the street South of the driveway, outside
the area where HNMC exercised control. Accordingly, no reasonable
jury could find that the signs HNMC placed in the right-of-way, even if
dangerous, proximately caused Chan’s death. Because the evidence is
legally insufficient to support the jury’s finding of proximate cause
regarding the signs or its finding of breach regarding the pad or
driveway, HNMC is entitled to a take-nothing judgment. See Sw. Key
Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 270 (Tex. 2002).

20
CONCLUSION

Generally, a property owner or occupier owes no duty to make an
adjoining public road safe or to warn of potential danger in the roadway.
But when a property owner exercises actual control over adjacent
property, it does owe premises liability duties to those injured by
conditions in the controlled area. Here, HNMC exercised control over
limited areas of the public right-of-way abutting Cali Drive. But Chan
was not injured by conditions in the controlled area. Instead, she was
tragically killed by the careless acts of a third-party driver, a risk for
which HNMC was not responsible and from which it had no duty to
protect Chan. We therefore reverse the court of appeals’ judgment
affirming the judgment on the verdict in Chan’s favor, and we render
judgment that the Chan parties take nothing. See TEX. R. APP. P.
60.2(c).

J. Brett Busby
Justice

OPINION DELIVERED: January 19, 2024

21