# State Department of Highways & Public Transportation v. Payne

> Texas Supreme Court · December 22, 1992 · 838 S.W.2d 235

URL: https://www.frixlaw.com/law-library/cases/9676860

## Case

- **Full name:** STATE DEPARTMENT OF HIGHWAYS & PUBLIC TRANSPORTATION, Petitioner, v. Kenneth Herschel PAYNE Et Ux., Respondents
- **Court:** Texas Supreme Court
- **Decided:** December 22, 1992
- **Citations:** 838 S.W.2d 235; 1992 WL 233650
- **Precedential status:** Published
- **Opinion:** On rehearing by Gonzalez
- **Judges:** Doggett, Gammage, Gonzalez, Hecht, Mauzy
- **Cited by:** 1,019 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9676860

## How later opinions describe it (automated extraction)

- 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 tria…
- 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 . . .”
- holding “[t]here 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”

## Opinion text

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.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9676860. Public record. Not legal advice.