               IN THE SUPREME COURT OF TEXAS
                                        ══════════
                                          No. 18-1065
                                        ══════════

                                 HOMER HILLIS, PETITIONER,
                                                 v.


                               HENRY MCCALL, RESPONDENT
            ══════════════════════════════════════════
                          ON PETITION FOR REVIEW FROM THE
                 COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
            ══════════════════════════════════════════


                                    Argued January 9, 2020


       JUSTICE LEHRMANN delivered the opinion of the Court.


       The ferae naturae doctrine limits a landowner’s liability for harm caused by indigenous

wild animals on his property. In this premises-liability case arising out of a brown-recluse spider

bite, we are asked how the doctrine affects the scope of the landowner’s duty to his bitten invitee.

The landowner argues that he owed no duty to the invitee because he was unaware of the presence

of brown recluse spiders on his property and he neither attracted the offending spider to his

property nor reduced it to his possession. Further, the invitee had actual knowledge of the presence

of spiders on the property. The court of appeals held that the property owner failed to conclusively

establish the absence of a duty and thus reversed the trial court’s summary judgment in his favor.

We agree with the landowner and reverse the court of appeals’ judgment.
                                                   I. Background

         Homer Hillis owns a bed and breakfast (the B&B) and a neighboring cabin in

Fredericksburg, Texas. He used the B&B as a second home until 2012, when he began renting it

out, mainly on weekends. Hillis hired a housekeeper to prepare and clean the B&B before guests

arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any

pest problems. Thus, as Hillis described it, pest control at the B&B was conducted on an “[a]s

needed” basis.

         In early 2014, Hillis leased the neighboring cabin on the property to Henry McCall. 1 The

cabin had no washer or dryer and had only a small refrigerator, so Hillis permitted McCall to use

the laundry facilities and larger refrigerator in the B&B. McCall also offered to “open up” the

B&B for guests and others needing access, such as electricians and other maintenance workers.

According to McCall, Hillis typically called him several days before guests arrived and asked him

to perform various tasks. 2

         On December 12, 2014, McCall accessed the B&B at Hillis’s request to check the

dishwasher and investigate whether the sink was leaking. While checking under the sink for a

leak, McCall was bitten by a brown recluse spider, which is a venomous spider found in several

states, including Texas.




         1
             Karen Oringderff, McCall’s common-law wife, was also a tenant. She is not a party to this lawsuit.
         2
           Hillis disputed this characterization, stating that he typically did not affirmatively request McCall’s
assistance with respect to preparing the B&B for guests. Rather, Hillis merely accepted McCall’s offer to help, was
“happy that he was willing to do it, and . . . appreciated it.” For summary judgment purposes, we will accept McCall’s
version of events.

                                                           2
         Before he was bitten, McCall had observed spiders in both the cabin and the B&B on

several occasions and had notified Hillis about the general presence of spiders in the B&B. 3

According to Hillis, when McCall reported issues with insects or spiders, Hillis would pass along

the information to the housekeeper who prepared the B&B for guests. Hillis also averred that

customer reviews of the B&B had never complained of insects. Neither Hillis nor McCall had any

personal knowledge about the presence of brown recluse spiders on Hillis’s property specifically

or in the surrounding area. 4 However, Hillis explained that he had read reports on the internet that

brown recluse spiders “are habitats [sic] of Texas for a long time, and I assumed they were around

my property.” Hillis had heard of people being bitten by brown recluses “elsewhere,” but not on

his property.

         McCall sued Hillis for negligence under a premises-liability theory, alleging that the

presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous

condition, that Hillis knew or should have known of the condition, that Hillis owed McCall a duty

to adequately warn him of the condition or make the property safe, that Hillis breached that duty,

and that McCall suffered damages as a result. Hillis filed a motion for summary judgment, arguing

that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to

indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The

trial court granted the motion, and McCall appealed.




         3
             McCall was responsible for pest control in the cabin while Hillis remained responsible for pest control in
the B&B.
         4
          According to the court of appeals, “Hillis admitted in his deposition that he knew there was a population of
brown recluse spiders on the property.” 562 S.W.2d 98, 106 (Tex. App.—San Antonio 2018). Neither party references
deposition testimony to that effect, and our review of the record revealed no such testimony.

                                                            3
       The court of appeals reversed. 562 S.W.3d 98, 106 (Tex. App.—San Antonio 2018).

Viewing the evidence in the light most favorable to McCall, the court concluded that “McCall was

bitten by a spider in an artificial structure and Hillis knew or should have known of an unreasonable

risk of harm posed by the spiders inside the B&B.” Id. Accordingly, the court held that Hillis had

failed to establish as a matter of law the absence of a duty to warn or make safe under the doctrine

of ferae naturae. Id.

                                           II. Discussion

                                      A. Standard of Review

       A trial court’s order granting summary judgment is reviewed de novo. Tarr v. Timberwood

Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018). A party moving for traditional summary

judgment has the burden to prove that no genuine issue of material fact exists and that he is entitled

to judgment as a matter of law. ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex.

2018); see also TEX. R. CIV. P. 166a(c). “When reviewing a summary judgment, we take as true

all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve

any doubts in the nonmovant’s favor.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex. 2005) (citations omitted).

                            B. Premises Liability and Ferae Naturae

       “A claim against a property owner for injury caused by a condition of real property

generally sounds in premises liability.” Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 642

(Tex. 2016). When the claim is based on the property owner’s negligence, the threshold question

is whether the owner owed a duty to the injured person. See Brookshire Grocery Co. v. Goss, 262

S.W.3d 793, 794 (Tex. 2008). “The existence of a duty is a question of law for the court to decide


                                                  4
from the facts surrounding the occurrence” at issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.

1996). 5 Further, the duties owed by a landowner in a premises-liability case “depend upon the

role of the person injured on his premises.” Rosas v. Buddies Food Store, 518 S.W.2d 534, 535

(Tex. 1975). When the injured person qualifies as an invitee, 6 as McCall did, 7 then as a general

rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably

dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is

not.” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015); see also United Scaffolding,

Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017) (landowner’s duty to an invitee is to “use ordinary

care to reduce or eliminate an unreasonable risk of harm created by a premises condition which

the owner . . . knows about or in the exercise of ordinary care should know about” (citation

omitted)). In line with that rule, the duty does not extend to warning the invitee of hazards that

are open and obvious. Austin, 465 S.W.3d at 204.

         Notwithstanding the general rule regarding the duty a premises owner owes to invitees, we

have approached the scope of the duty differently in some circumstances. For example, we have

held that a premises owner generally has no duty to protect invitees from the criminal acts of third

parties on the owner’s property, but we recognize an exception “when the owner knows or has

reason to know of a risk of harm to invitees that is unreasonable and foreseeable.” Del Lago



         5
           We balance several factors in determining whether a duty exists, including the risk, foreseeability, and
likelihood of injury weighed against the social utility of the landowner’s conduct, the burden of preventing the injury,
and the consequences of placing that burden on the landowner. Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d
523, 525 (Tex. 1990).
         An invitee is “one who enters on another’s land with the owner’s knowledge and for the mutual benefit of
         6

both.” Rosas, 518 S.W.2d at 536.
         McCall alleged in his petition that he qualified as an invitee when he was bitten, and Hillis conceded as
         7

much for purposes of his summary judgment motion. We therefore assume without deciding that McCall was an
invitee.

                                                           5
Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010); see also Austin, 465 S.W.3d at 206

(characterizing the duty recognized in Del Lago as an exception to the general rule that a landowner

owes no duty to warn an invitee with respect to unreasonably dangerous conditions that are obvious

or known to the invitee). Pertinent to this case, we have also recognized that, with certain

exceptions, a premises owner generally owes no duty to protect invitees from wild animals on the

owner’s property. Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 896–97 (Tex. 2016). Under this

longstanding doctrine of ferae naturae, such a duty does not exist “unless the landowner actually

reduced indigenous wild animals to [his] possession or control,” “introduced nonindigenous

animals into the area,” or affirmatively “attract[ed] the animals to the property.” Id. at 897

(citations omitted); see also Nicholson v. Smith, 986 S.W.2d 54, 63 (Tex. App.—San Antonio

1999, no pet.).

        The reasoning underlying the doctrine is that wild animals “exist throughout nature” and

are “generally not predictable or controllable.” Nami, 498 S.W.3d at 897 (quoting 4 AM JUR. 2d,

Animals § 62 (2007)). 8 In turn, the mere fact that an indigenous wild animal has crossed a

landowner’s property line does not make the landowner better able to protect an invitee than the

invitee is to protect himself. Id.; see also Nicholson, 986 S.W.2d at 63 (“Under ordinary

circumstances, Texas landowners do not have a duty to warn their guests about the presence and

behavior patterns of every species of indigenous wild animals and plants which pose a potential

threat to a person’s safety . . . .”). The risk and foreseeability of injury do not outweigh the severe

burden and potential consequences of imposing a general duty on a landowner with respect to



        8
         We recognized in Nami that insects are treated as wild animals. 498 S.W.3d at 896 (citing RESTATEMENT
(SECOND) OF TORTS § 506 cmt. a (AM. LAW INST. 1977)). We see no reason to treat arachnids differently.

                                                      6
“indigenous wild animals in their natural habitat, in the normal course of their existence.”

Nicholson, 986 S.W.2d at 62; see also Brantley v. Oak Grove Power Co., No. 10-12-00135-CV,

2012 WL 5974032, at *3 (Tex. App.—Waco Nov. 29, 2012, no pet.) (mem. op.) (holding that a

landowner owed no duty to a construction worker who was bitten by a spider at a construction site,

in part because the spider was “in its natural habitat in the normal course of its existence” and the

employer had engaged in no affirmative or negligent acts to draw spiders to the area).

       However, courts applying the ferae naturae doctrine have long recognized an additional

exception to the general no-duty rule, holding that a landowner:

       could be negligent with regard to wild animals found in artificial structures or
       places where they are not normally found; that is, stores, hotels, apartment houses,
       or billboards, if the landowner knows or should know of the unreasonable risk of
       harm posed by an animal on its premises, and cannot expect patrons to realize the
       danger or guard against it.

Nami, 498 S.W.3d at 897 (citing various treatises); see also Overstreet v. Gibson Prod. Co., 558

S.W.2d 58, 61 (Tex. App.—San Antonio 1977, writ ref’d n.r.e.) (noting that a landowner owes no

duty to exercise reasonable care to protect invitees from the acts of wild animals on the property

“until he knows or has reason to know that the dangerous acts by wild animals are occurring or

about to occur”). Under that exception, a duty akin to the general duty owed to invitees under

Texas law—that is, a duty to warn of or make safe from an unreasonably dangerous condition

about which the owner knows or reasonably should know but the invitee does not—arises with

respect to “wild animals found in artificial structures or places where they are not normally found.”

Nami, 498 S.W.3d at 897.

       We generally agree with the policies underlying imposing such a duty on landowners with

respect to wild animals that pose an unreasonable risk of harm inside artificial structures like


                                                 7
homes, stores, hotels, and offices. While landowners cannot be held to account for every animal

that finds its way inside, particularly small animals like insects and spiders that may easily enter

and escape detection, we also do not expect invitees as a general matter to exercise any particular

vigilance with respect to wild animals when inside. 9 Thus, when a wild animal enters such a

structure, and the owner knows or has reason to know about the animal’s presence and the

unreasonable risk of harm presented thereby but the invitee does not, it is reasonable to expect the

owner to take steps to alleviate the danger or at least warn the invitee of it. See Overstreet, 558

S.W.2d at 61, 63 (holding that a grocery store owner was not liable to a patron who was bitten by

a rattlesnake inside the store where nothing in the record suggested that the owner “knew, or had

reason to know from past experience, that there was a likelihood that snakes presented a danger to

patrons”). 10

         Hillis argues that this exception amounts to a “new duty” that places an untenable burden

on landowners. We disagree. First, it comports with the general premises-liability duty imposed

on landowners with respect to invitees as well as the consistently recognized caveat to the ferae

naturae doctrine. Nami, 498 S.W.3d at 897; see also Nicholson, 986 S.W.2d at 62; Overstreet,

558 S.W.2d at 61. Second, the fact that the duty hinges on the owner’s knowledge or reason to




         9
           In light of these considerations, the fact that the injury occurs in or near any type of artificial structure does
not necessarily give rise to the exception. For example, in Brantley, the plaintiff was bitten by a spider while “standing
on a concrete slab [at a construction site] with a partial structure and no roof.” 2012 WL 5974032, at *3. The court
of appeals, noting testimony that “there were spiders everywhere in the field” at the site, held that the spider that bit
the plaintiff was in its natural habitat and no duty was owed. Id. While we cannot anticipate how the doctrine would
apply with respect to every type of artificial structure imaginable, we can say that we do not view barns and billboards
in the same way as structures like houses, hotels, offices, and retail stores in evaluating the duty owed with respect to
wild animals.
          We need not address whether an additional exception exists when a landowner has actual knowledge of an
         10

unreasonable risk of harm presented by a wild animal on his property (even while outside) and the patron neither
knows nor reasonably should know of the risk.

                                                             8
know of an unreasonable risk of harm is significant. Unfortunately, many insects and spiders are

commonly found indoors. The ever-present possibility that an insect or spider bite may occur

indoors does not amount to an unreasonable risk of harm imposing a duty on property owners to

guard against or warn of this fact of life. To that end, knowledge of the presence of a harmless

indigenous insect or spider does not in and of itself amount to a reason to know of the presence of

the kinds of insects or spiders that present a danger to invitees. On the other hand, a property

owner who knows or should know of an unreasonable risk that dangerous indoor pests will bite

invitees in his particular building has a duty to alleviate the danger or warn of it if the invitees

neither know nor should know of the heightened risk. This strikes an appropriate balance between

protecting invitees and ensuring that the burden placed on landowners is not unduly onerous.

        Having outlined the parameters of the pertinent duty, we turn to its application to the facts

of this case.

                                            C. Analysis

        Viewing the evidence in the light most favorable to McCall, the pertinent facts are as

follows:

        •   Hillis’s property is in Fredericksburg, in the Texas Hill Country.

        •   Hillis rented a cabin on the property to McCall and used a residence on the property as
            a B&B, mainly for weekend rentals.

        •   Hillis conducted pest control in the B&B on an as-needed basis by instructing the
            housekeeper to set off bug bombs if she saw pests while preparing the B&B for guests.

        •   McCall, an invitee, was bitten by a brown recluse spider inside the B&B while checking
            under the kitchen sink for a leak.

        •   Brown recluse spiders are indigenous to Texas.



                                                 9
        •    Hillis had read about brown recluse spiders on the internet and knew that they were
             indigenous to Texas and thus that they could be on his property.

        •    McCall did not know brown recluse spiders were indigenous to Texas.

        •    McCall had seen spiders on several occasions in both the cabin and the B&B. When
             he saw spiders in the B&B, he would notify Hillis, who passed along the information
             to the housekeeper who prepared the B&B for guests.

        •    Customer reviews of the B&B had never mentioned insects.

        •    Hillis had no actual knowledge of the presence of brown recluse spiders on his property
             before McCall was bitten.

        •    McCall had no actual knowledge of the presence of brown recluse spiders on Hillis’s
             property before McCall was bitten.

        On these facts, we hold that Hillis owed McCall no duty as a matter of law, notwithstanding

the fact that the injury occurred inside the B&B. McCall’s position is essentially that because

Hillis knew spiders had been seen in the B&B, and because he knew brown recluses are found in

Texas, he knew or should have known that a dangerous brown recluse spider was in the B&B and

thus had a duty to warn McCall. 11 We disagree.

        First, as noted, knowledge of the general intermittent presence of spiders does not

necessarily amount to knowledge of an unreasonable risk of harm, and Hillis had no particular

reason to know that brown recluses, or other venomous spiders, were inside the B&B. Although

Hillis knew that brown recluses are indigenous to Texas, the record does not show that he had

identified or should have identified that the spiders McCall previously reported seeing inside the

house presented a danger. Indeed, McCall testified in his deposition that the spiders he had seen

in the B&B and reported to Hillis before McCall was bitten were the “[s]ame type of spiders” he


        11
           McCall does not contend that Hillis engaged in any affirmative or negligent acts to draw venomous spiders
to the property.

                                                        10
had seen in his previous home in Fredericksburg, and nothing in the record indicates that he was

referring to brown recluses or to any other type of venomous spider. The record thus conclusively

negates a determination that Hillis knew or had reason to know of an unreasonable risk of harm

presented by brown recluse spiders inside the B&B.

         Further, McCall and Hillis had identical actual knowledge of the presence of spiders on the

property: both knew that they had been seen in the B&B periodically, and neither knew of the

presence of brown recluses or of other types of venomous spiders. 12 According to McCall, Hillis

should have warned him that the spiders McCall himself had seen could have been venomous. But

it is simply common knowledge that some spiders are venomous and others harmless. We will not

impose a duty on a landowner to warn an invitee about something he already knows. See Nami,

498 S.W.3d at 897 (recognizing that imposition of a duty with respect to wild animals inside an

artificial structure depends in part on a determination that the invitee cannot reasonably be

expected “to realize the danger or guard against it”).

         As noted, the existence of a duty is a question of law that depends on the underlying facts.

Walker, 924 S.W.2d at 377. Even with respect to wild animals found inside, an owner’s duty to

invitees does not extend beyond warning about or making safe from unreasonably dangerous




         12
            The court of appeals did not consider the effect of McCall’s awareness of the presence of spiders inside
the B&B on whether Hillis owed him a duty, holding that “Hillis did not assert McCall’s knowledge as a basis for
summary judgment [and instead] relied exclusively on the doctrine of ferae naturae to negate the element of duty.”
562 S.W.3d at 100 n.1. We disagree with that narrow characterization of Hillis’s summary judgment motion. In
challenging the existence of a duty in that motion, Hillis focused principally on the absence of evidence that he had
attracted brown recluses to the property; however, he explicitly referenced McCall’s knowledge as supporting a
finding that no duty was owed. Hillis then elaborated on the significance of that knowledge in his reply in support of
the motion. We will not ignore the relevant evidence of McCall’s knowledge that Hillis expressly brought to the trial
court’s attention in his summary judgment motion and reply.

                                                         11
conditions about which the owner knows or has reason to know but the invitee does not. On the

record before us, we hold that Hillis negated a duty to McCall as a matter of law.

                                         III. Conclusion

       The trial court correctly granted summary judgment for Hillis on McCall’s premises-

liability claim. Accordingly, we reverse the court of appeals’ judgment and render judgment that

McCall take nothing.



                                                        ________________________________
                                                        Debra H. Lehrmann
                                                        Justice


OPINION DELIVERED: March 13, 2020




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