Common Questions / Premises Liability
The store says I should have watched where I was going. Can I still recover?
Usually, yes. You should have seen it is a comparative fault argument, which in Texas reduces recovery rather than erasing it unless your share exceeds half. The stronger defense, that the danger was open and obvious, has real exceptions, including hazards a customer had no choice but to cross.
Two defenses wearing one sentence
When the adjuster says you should have watched where you were going, two distinct legal arguments are hiding in the folksiness. The first is comparative fault: you were partly careless, so pay yourself part of the damages. The second is stronger and structural: the danger was open and obvious, and Texas landowners generally owe no duty to warn or protect invitees from dangers as visible to the customer as to the store. The first argument haggles over percentages; the second tries to end the case. Both are fought constantly in premises litigation, both are beatable, and neither should be conceded on a phone call.
The open-and-obvious rule, and the cracks the Supreme Court built into it
The Texas Supreme Court has confirmed the general rule but preserved its exceptions, and the one that matters most in ordinary cases is necessary use: when the invitee had to cross the dangerous condition to do what they lawfully came to do, and could not reasonably avoid it despite seeing it, the landowner's duty survives. The tenant whose only stairway is the broken one, the customer whose sole route to the registers runs through the wet lobby, awareness of a hazard you cannot decline is not a defense to maintaining it. And before any exception is reached, obviousness itself is a fact fight: lighting, sight angles, color contrast against the floor, the clutter and displays engineered to pull eyes toward merchandise, a hazard is not legally obvious merely because it was physically present, and photographs taken from the customer's actual approach settle arguments the defense would rather have in the abstract.
The comparative fight, by the numbers
Where fault is genuinely shared, Texas apportions it: your recovery is reduced by your percentage, and survives entirely unless a jury puts you over fifty percent. In practice the defense's opening position, mostly your fault, is a negotiating anchor, not a verdict, and it is moved with the same evidence that proves the store's knowledge: the inspection logs that skipped the hour, the prior complaints, the video showing employees walking past the hazard you supposedly should have seen better than they did. A store that failed its own inspection policy is poorly positioned to lecture a customer about vigilance, and juries relish the comparison.
Do not grade your own case
People talk themselves out of valid claims with the adjuster's script in their own voice. Whether the danger was legally obvious, whether you had any real choice, and where the percentages truly land are lawyer questions with evidence answers, and at Silver Key Law the evaluation that answers them is free.
Injured in Arizona? Some rules on this page are Texas-specific. Arizona differs on points that change outcomes, including pure comparative fault and government-claim deadlines. See our Arizona answers or call (888) 508-6967.
Related: Proving the Store Knew · Partly At Fault in Texas · Submit Your Case · All Common Questions
This page is general information about Texas law, not legal advice about your specific situation. Deadlines and outcomes depend on facts; talk to a lawyer about yours.
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