holding that an objection should make "the trial court aware of the complaint, timely and plainly"
How later courts described this case
- holding that an objection should make "the trial court aware of the complaint, timely and plainly"
- holding that even if objection by the State failed to make clear that the charge submitted only a special defect theory and not a premises defect theory, the State preserved error by its requested jury question that would have submitted premises defect theory to jury, and trial court’s refusal to submit the requested question constituted a clear refusal to submit the premises defect theory
- holding that there “should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.”
- stating that to establish liability for a premises defect, “a licensee must prove that: (1) a condition of the premises created an unreasonable risk of harm to the licensee; (2) the owner actually knew of the condition . . .”
Written by the judges who cited it.
Distinguished
Distinguished by Linda Faust and Donnie Faust v. BNSF Railway Company (2011)
for preserving charge error, Payne is factually distinguishable from
Distinguished by Thomas Carnival, Inc. and Paul Atkins v. Robert Lutkins (1993)
The Payne case, however, is distinguishable.
The opinion
DISSENTING OPINION ON SECOND 1 MOTION FOR REHEARING
GONZALEZ, Justice.
On further reflection and study, I believe that the Court’s writing on preservation of error is incorrect. For the reasons expressed in the dissenting opinion, 838 S.W.2d 235, 241 (Mauzy, J., dissenting, on motion for rehearing), I would grant the motion for rehearing and affirm the judgment of the court of appeals.
. Ordinarily, under Rule 190(d) of the Texas Rules of Appellate Procedure, we do not entertain second motions for rehearing in the Supreme Court. However, we may make exceptions where, as here, we withdraw a prior opinion and issue a substantially revised one in its place. Cf. TexR.App.P. 100(d) (providing for "further motion for rehearing” to complain of new judgment or opinion in the court of appeals.)