Personal Injury

Published on: June 8, 2017

Texas City’s Failure to Address a Safety Hazard

In a recent Texas appellate case, four people sued the City of Austin under the Texas Tort Claims Act and the recreational use statute. The case arose when a man driving under the influence drove off the street, jumped a curb, and drove onto a hiking and biking trail next to the road. The car and a traffic warning sign struck and killed two people who were walking, a man and a woman. The man died due to his injuries. The drunk driver was sentenced to five years in prison for aggravated assault with a deadly weapon.

The man’s survivors sued the drunk driver and the city. Against the city, they asserted claims of gross negligence, negligence, premises defect, and special defect and argued that the city had breached its duties under the recreational use statute. They claimed that the city failed to safely build the trail, knew of previous incidents when vehicles traveled over the curb and onto the trail in the same location, and failed to appropriately warn or repair the dangerous condition. They also argued that the city maintained policies that required it to repair the problem once a danger was identified and that their failure to build a barrier was a failure to carry out a ministerial action that the city’s own policies required.

The city claimed that governmental immunity barred the plaintiffs’ claims, since sovereign immunity wasn’t waived for its discretionary choices related to the design of the road and the safety features to be installed. The plaintiffs responded that there was no immunity because the failure to fix the danger on the trail was a negligent failure to implement its own policy, rather than an initial design or policy choice for which there was immunity.

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Published on: April 4, 2017

Intentional Injury by a Government Employee in Texas

By Carabin Shaw

In a recent Texas appellate case, the plaintiff argued that the lower court should not have granted a county’s plea to the jurisdiction. The case arose when the Deputy Constable for the county used his Glock to shoot and injure the plaintiff.

When he applied for the job, the Deputy Constable had revealed he was medicated for mood stabilization because of a chemical imbalance. In the five years before being employed with the county, he held 21 jobs and was fired from 12. He’d been dismissed from a law enforcement academy within 4 months of attending because he’d failed minimum safety standards for traffic stops, lied, and was unable to function as a team member, among other reasons.

When he was hired, he identified the Glock as his primary weapon and the county approved his use of this firearm. Before the incident that resulted in the plaintiff’s injuries, he was involved in four other incidents, including an anger management issue as a security guard, two road rage incidents, and showing hostility toward two other law enforcement officers.

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Published on: December 14, 2016

Designating Responsible Third Parties for Workplace Injuries in Texas

By Carabin Shaw

Under Tex. Civ. Prac. & Rem. Code §§ 33.001-33.017, a defendant in a personal injury lawsuit in Texas can designate anyone who is alleged to have caused or contributed to injuries as a responsible third party.

In Re Bustamante considered whether a trial court had appropriately denied a motion for leave to designate responsible third parties. The case arose when a man in the course and scope of his employment was hurt at his workplace, the Cleo Convenience Center, when Irasma Estrada Riojas drove a vehicle into him, pinning him to a wall.

A day before the statute of limitations period ended, the man and his wife sued several defendants, including Cleo Bustamante, who owned the company that employed him. They did not sue Riojas or the employer. The employer had provided workers’ compensation, while Riojas had settled.

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Published on: November 9, 2016

Liability for Injuries from Tangible Property in Texas

By Carabin Shaw

In Constantino v. Dallas County Hospital District, the plaintiff appealed an order dismissing her personal injury case. The plaintiff had sued a county hospital for personal injuries after a television fixed to the wall in her aunt’s hospital room fell on her shoulder and arm and hurt her. She claimed the hospital had negligently furnished personal property in an unsafe condition. Ordinarily, a governmental hospital would be immune from suit, except under certain conditions in which it is waived.

In this case, the plaintiff claimed waiver under Texas Civil Practice & Remedies Code § 101.021(2) on the ground that her injuries had been caused by the use of tangible real or personal property. She argued in the alternative that the falling television was a premises defect, such that immunity was waived under § 101.022.

The trial court granted the defendant’s plea to the jurisdiction on the premises defect claim but denied it on the other claim. The hospital appealed. The appellate court ruled that the plaintiff had simply styled the premises defect claim differently in her § 101.021(2) claim. It also ruled that the petition didn’t show she couldn’t cure the pleading defects and state a claim within the waiver of immunity under § 101.021(2).

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Published on: August 17, 2016

Negligent Entrustment in Texas

By Carabin Shaw

In Gonzalez v. Villafana, the plaintiff sued the defendants for damages suffered in a car crash with a car operated by Nestor Villafana but owned by Ramon Walle. The case arose when Walle, a muffler shop owner, visited a friend at his tire shop, hoping to talk about buying some land from the friend. Villafana was also a friend of the tire shop owner visiting the shop. Walle was in the shop for 30 minutes when his wife called to tell him about a customer at the muffler shop. Villafana asked for a ride to the muffler shop so that he could get a taco nearby.

Walle drove him. At the muffler shop, both men left the car, with Walle assuming Villafana would go get something to eat. Walle left his keys in the ignition. However, 30 minutes later, another friend called to tell him he’d seen his car in an accident. Villafana had been driving the car. Walle didn’t know the car was gone until he was informed about the accident.

The plaintiff sued Walle for negligent entrustment and Villafana for negligence. Walle filed for summary judgment. The trial court granted the motion and severed the plaintiff’s claims against Walle from the claims against Villafana so that the judgment was final as to Walle.

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Published on: July 7, 2016

Wrongful Death as a Result of a Flooded River in Texas

By Carabin Shaw

In Walker v. UME, Inc., a Texas Court of Appeals considered a case in which the trial court had entered summary judgment in favor of the defendants in a wrongful death case. The case arose in 2010, when two couples, the Walkers and the Johnsons, drove to Camp Huaco Springs for a weekend of camping and river rafting. They parked in two spots that they were assigned. On Saturday, they went on a canoe trip on the river and toured caverns. They went back to the campsite and went to bed in their RV campers. It was not raining at that time.

The couples hadn’t realized that there was a forecast of heavy rain. Cynthia Walker woke at around 6:00 a.m. There was thunder and lightning, and Terry Johnson (Cynthia’s brother) was screaming that they needed to leave. She realized that the river had risen overnight. The campers were floating. The two couples were swept down the river in the flood. Norman Walker died in the flood. His wife and the Johnsons were rescued but required medical care.

Cynthia Walker and others filed a lawsuit for premises liability and negligence against UME, Inc., which was doing business as Camp Huaco Springs, and WWGAF, which was doing business as Rockin ‘R River Rides and the Rivers brothers. The plaintiffs claimed WWGAF was a joint enterprise with UME and that it was the alter ego of the Rivers brothers. They also claimed that the defendants were aware that floods were likely at the campground, and they should have provided storm warnings and planned for flood awareness. They argued that the defendants should have used sirens to warn them and hired someone to evacuate guests and educate them about risks.

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Published on: July 7, 2016

Negligent Servicing Claim in Texas

By Carabin Shaw

In Iacono v. Stanley Black & Decker, a Texas product liability plaintiff appealed from a summary judgment motion brought by the defendant manufacturer. The case arose from injuries sustained in connection with the defendants’ automatic sliding glass doors at a hotel. The doors operate by using a controller. Three sensors located above and on each side of the door detect motion in order for the doors to open. A threshold sensor is located in the frame above the door. The latest date of installation of the doors in this case was early 1995. The hotel’s safety assurance manager testified that the hotel performed the service for the doors once they were installed, and they had been serviced twice since 1995, with replacement of certain parts.

The plaintiff went to a wedding at the hotel in 2013. As she came out with her walker, the automatic door closed on her. She fell and was injured. She sued the manufacturer on the grounds of negligence, product liability, breach of warranty, and gross negligence. The manufacturer claimed that the plaintiff’s suit was barred by the statute of limitations and the statute of repose, and it moved for partial summary judgment.

The plaintiff filed an amended complaint and summary judgment response. She argued that her negligence claims were based on the manufacturer’s acts and omissions in service call years, so they weren’t barred by the statute of repose. She also claimed her negligence cause of action wasn’t barred by the statute of limitations. However, the trial court granted the partial summary judgment motion. The manufacturer then filed a final summary judgment motion, arguing that all that was left were product liability claims based on the motion sensors, which were manufactured by a separate company, and that since it was a non-manufacturing seller, it could not be liable. This motion also was granted.

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Published on: June 12, 2016

Statute of Limitations and Service of Process in Texas Personal Injury Cases

By Carabin Shaw

In Shaw v. Lynch, a police sergeant alleged that he’d responded to a report that the defendant was recklessly driving an ATV through the neighborhood. He came to the scene, and then the defendant gunned the engine of the ATV and purposefully drove the ATV over the police sergeant. The police sergeant claimed this caused him severe leg injuries and other injuries, and he sued the ATV driver.

The ATV driver denied the allegations in the complaint and moved for summary judgment. He argued that the plaintiff hadn’t actually served him with the complaint until after the two-year statute of limitations that applied to personal injury lawsuits had expired. He argued that there was no proof the plaintiff showed due diligence in serving him, and he had instead delayed two months. In addition to attaching proofs of service and citation, the defendant also attached a judgment that was entered against him in the related criminal action.

The plaintiff argued that the district clerk had caused the delay and that he’d been duly diligent. His attorney submitted an affidavit that he’d expected service on the defendant within a week or two, but a month passed before a return of service or answer was filed, and he’d had to straighten things out with the process server. The process server had also submitted an affidavit noting that it accepted assignments throughout the state and in this case had been unsuccessful in subcontracting the particular assignment.

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Published on: June 12, 2016

Statute of Limitations in Texas Minor’s Wrongful Death

By Carabin Shaw

In Durham v. Children’s Medical Center of Dallas, a Texas appellate court considered whether the Texas Constitution’s Open Courts Clause stopped the statute of limitations from running in a deceased 12-year-old’s survival and wrongful death claims against her health care providers.

The case arose from the medical care of the decedent, a 12-year-old girl born in 1993. In 2006, she was seriously hurt in Hawaii. Among other things, the Hawaii doctors found that she had a dilation of the ascending aorta that was not trauma-related. They recommended she follow up with a Texas cardiologist.

She was transferred to the Children’s Medical Center of Dallas with the help of her general pediatrician. However, the pediatrician didn’t see her after her transfer or before she died. She was treated by a Dr. Rupp and a nurse practitioner, and then she was discharged on the same day and told to come back for follow-up orthopedic surgery. That day, she was evaluated by Dr. Copley and then operated on. She stayed at the Children’s Medical Center for a few weeks, receiving care also from Dr. Holland and Dr. Kines, and then she was transferred again to another hospital, Scottish Rite. Two years later, at age 15, she became ill and died of aortic rupture.

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Published on: June 12, 2016

Texas Employer Liability for Temp Workers

By Carabin Shaw

In Tractor Supply Co. of Texas, LP v. McGowan, the plaintiff sued a tractor supply distribution company and related parties for personal injuries. The case arose when a temporary staffing company assigned the plaintiff to work in the tractor supply distribution center. Employees of the center trained, supervised, and instructed him on his job duties.

The plaintiff was working as a picker on the date of the accident. Another employee was loading a pallet and pushed another pallet loaded with dog food off the rack. This landed on the plaintiff, causing serious injuries.

The plaintiff prevailed at trial. The defendant tractor supply distribution company appealed, arguing that the court had made a mistake in depriving it of the exclusive remedy defense provided by the Texas Workers’ Compensation Act.

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