(concurring).
For a rule of liability of the possessor of land to a licensee, I prefer that of Section 342 of the Restatement of Torts. Both the trial court and the Court of Civil Appeals have applied that rule in reaching their judgments for this plaintiff. Under that rule, the possessor of land has no duty to inspect the land; but if he knows of facts which would put a reasonable person on notice of the defect and unreasonable risk of harm, he is charged with knowledge of the danger. It is an objective test of the defendant’s knowledge of the danger based upon facts within his actual knowledge. Restatement (Second) of Torts § 12(1) (1965). I am prepared to extend the duty of owner-occupiers of land in Texas accordingly.
I cannot, however, vote for recovery by this plaintiff. This is a premises defect and Section 18(b) of the Texas Tort Claims Act controls, as this Court holds. The Act would not make the State liable and suable for the janitor’s misapplication of wax. Furthermore, I would not ascribe to the Legislature an intention to give to this Court the power to modify the duty owed to a licensee and expand the State’s liability unless the Texas Tort Claims Act gave some indication of that intention.
SAM D. JOHNSON, J., joins in this concurring opinion.