## Facts

- Delores Gail Howe slipped and fell on accumulated ice and snow on a sidewalk outside a Kroger store in a shopping center.
- Howe and her husband sued Kroger for negligence based on failure to maintain the sidewalk in a safe condition or warn of the hazard.
- Kroger operated the store as a tenant under a lease that designated sidewalks and similar areas as common areas.
- Under the lease, the landlord retained possession and control of common areas and agreed to maintain them, including removing snow and ice from sidewalks.
- The summary-judgment record contained no evidence that Kroger actually controlled the sidewalk or undertook to remove snow or ice there.

## Issues

1. Whether a shopping-center tenant owes premises-liability duties to invitees for injuries occurring on an exterior sidewalk designated as a landlord-controlled common area by the lease.
2. Whether the lease and undisputed evidence established, as a matter of law, that Kroger did not occupy or control the sidewalk, negating the duty element of negligence.

## Decision

- The appellate court affirmed summary judgment for Kroger.
- The court held the sidewalk was not part of the premises Kroger occupied or controlled.
- Because Kroger lacked possession or control of the sidewalk and did not assume maintenance duties, Kroger owed no duty to Howe regarding the icy condition.
- With duty negated as a matter of law, the negligence claim failed without reaching breach, causation, or damages.

## Legal Principles

- In Texas premises-liability claims, the duty to make property reasonably safe for invitees (or warn) generally applies only to areas the defendant occupies or controls.
- When a lease allocates possession and control of shopping-center common areas (including sidewalks) to the landlord, the tenant ordinarily has no duty for dangerous conditions in those areas absent evidence of actual control or voluntary assumption of the duty.
- A defendant is not generally required to prevent injury to others in areas outside its control absent a special relationship or an assumed duty.
- Summary judgment is proper when the evidence conclusively negates an essential element of the plaintiff’s claim, including duty.

## Conclusion

The court concluded that the landlord, not Kroger, retained control and maintenance responsibility for the sidewalk as a common area, and that no evidence showed Kroger assumed control or maintenance duties; therefore, Kroger owed no duty for the icy sidewalk and was entitled to summary judgment.


Howe v. Kroger Co., 598 S.W.2d 929 (Tex. Civ. App.—Dallas 1980)