Personal Injury

Published on: March 21, 2019

The Importance of Preserving Texas Appellate Issues

Judges who preside over Texas personal injury cases have an immense amount of influence over the outcome of the case. While the judge is not usually the one who makes the ultimate determination regarding a defendant’s liability (that issue is reserved for the jury), judges make all pre-trial and evidentiary rulings that come up throughout the trial. Thus, it has been said that a judge creates the “landscape” in which a case is brought.

Of course, judges are elected officials who, at the end of the day, are human and can make mistakes. For this reason, the Texas court system allows a party who believes that a judge made a legal error during the proceedings to appeal the issue to a higher court. Typically, appellate courts will only review the issues that are raised on appeal, and will only hear claims that comply with the Texas Rules of Appellate Procedure.

Appellate courts are designed to resolve conflicts between trial courts and to correct incorrect applications of the law. For example, if a court in Dallas is resolving an issue of state law differently than a court in San Antonio, an appellate court may decide to hear a case that presents the issue to clarify how the law should be interpreted. Also, appellate courts can reverse incorrect rulings that were made by trial judges.

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Published on: December 11, 2018

Proportionate Liability in Texas Personal Injury Cases

By Carabin Shaw

Determining fault in a Texas car accident can be a very complex matter, depending on the surrounding circumstances. While some accidents involve few parties and present straightforward issues, other cases involve complex fact patterns that require judges and juries to consider and apply numerous legal doctrines.

One of the more common issues that can arise in a Texas personal injury lawsuit that may make the case more complicated is the presence of multiple parties, each of which shares some amount of fault in causing an accident. A common example of this type of case is a Texas chain reaction accident.

In these cases, Texas courts apply what is commonly known as the doctrine of comparative fault. In Texas, however, the doctrine is referred to as “proportionate liability.” Chapter 33 of the Texas Civil Practice & Remedies Code discusses proportionate liability and how it applies in Texas personal injury cases.

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Published on: October 19, 2018

Texas Supreme Court Dismisses Dog Bite Case Against Military Contractor

By Carabin Shaw

The separation of powers doctrine is central to our democracy. Unfortunately, however, the application of the doctrine can mean that some Texas personal injury cases cannot be resolved by the courts because they concern unreviewable decisions made by the executive and legislative branches.

In a recent case against a military contractor, a woman filed a lawsuit after she was allegedly bitten by a dog on a United States Army base in Afghanistan. She was working as an administrative clerk at the base, and one day the dog allegedly escaped from her kennel, ran toward her, jumped and bit the woman’s shoulder. The dog also bit her buttocks before it was pulled off of her.

The woman sued the company that provided dogs to the Armed Services, alleging that the company negligently trained and handled the dog and that the dog bit her as a result. The company had trained the dog in the U.S. before being sent to Afghanistan. The dog was stationed at the base to protect soldiers and others by sniffing out improvised explosive devices (IEDs). The company claimed that the Army was at fault because of its use of the dog and because of the way it housed the dog. The company also argued that the court could not consider the case due to the political question doctrine.

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Published on: August 23, 2018

Texas Court Grants New Trial to Truck Accident Victim after Defense Counsel Alludes to Plaintiff’s Immigration Status

By Carabin Shaw

Recently, a state appellate court issued an opinion in a Texas truck accident case discussing an important issue regarding what constitutes inappropriate comments with respect to a plaintiff’s ethnicity or immigration status. The case required the court to determine if the plaintiff should be granted a new trial after defense counsel made several comments alluding to the plaintiff’s inability to legally work in the United States.

The Facts of the Case

The plaintiff was injured in an accident with the defendant truck driver. The plaintiff claimed that the defendant made an illegal lane change and collided with her vehicle. According to the plaintiff, after the accident the defendant apologized for causing the accident, and admitted that it was his fault. The defendant later took back those statements, claiming that when he learned more about how the accident occurred, and the plaintiff’s role in causing it, he no longer believed he was at fault.

The plaintiff was not legally permitted to work in the United States and the defense counsel hoped to bring that fact to the attention of the jury. However, in a pre-trial motion, the court disallowed comments on the plaintiff’s immigration status.

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Published on: February 13, 2018

Holding a School District Liable in Texas

By Carabin Shaw

In a recent Texas bus accident decision, the court considered the parents’ claim that a school district had caused their son’s death. The son, who was disabled, started going to school in the district at age three. The district picked him up in a bus used to pick up disabled students. The boy would stay in his wheelchair while being lifted onto the bus, and the wheelchair was locked into place by the district employees. The bus had both a driver and an attendant.

One day in December, the boy became unresponsive while traveling to school in the bus. The driver and attendant saw he was in distress and stopped the bus. They waited for an ambulance rather than take him to a nearby ER. They didn’t try to resuscitate him while they waited. However, their decisions to stop and wait for an ambulance were in accord with District procedures related to students who face conditions requiring medical care while traveling on the school buses.

Within an hour of getting on the bus, the boy died. His parents sued the district in the following year for wrongful death and survival damages. They later amended their complaint to allege that the bus driver had negligently driven such that their son had been tossed around in his wheelchair, that the driver had driven at an unsafe speed and disregarded curbs, bumps, and stops, that District employees hadn’t properly used available mirrors and cameras to observe their son during the trip, and that locks on the support chair were used in an unsafe and negligent way.

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Published on: February 13, 2018

Golf Course Injury in Texas

By Carabin Shaw

In a recent Texas premises liability case, the plaintiff was a member of a country club that had a golf course. He also owned an associated condo unit. The 16th hole of the gold course had an elevated green, around which were cliffs. While playing that hole, the plaintiff tripped, rolled, and fell off the side. His shoulder was severely injured.

The plaintiff sued the ranch, the designer, and the owner of the country club, claiming gross negligence, negligence, and premises liability. They filed motions for summary judgment. The lower court granted summary judgment in favor of them. He acknowledged documents related to his membership at the country club and his ownership of the associated condominium unit included releases that acknowledged and assumed risks associated with the club facilities.

He claimed that a supplemental declaration violated the statute of frauds and that the release wasn’t enforceable because it didn’t meet the fair notice requirements. The evidence wasn’t disputed that he signed a lot sales contract in buying a condo unit. The agreement stated the unit he was contracting to buy was subject to restrictions and conditions. The agreement included a defined term. The declaration referenced a statement that a copy of the documents had been gotten by the buyer. The contract also stated that the declaration was recorded.

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Published on: December 20, 2017

Liability for Conflicting Traffic Signals in Texas?

By Carabin Shaw

In a recent Texas car crash decision, the plaintiff claimed she was hit by a car while using the crosswalk by a courthouse. The traffic light was flashing a walk signal when she started crossing, but the intersection light also gave drivers a protected left turn across the crosswalk with a green left turn arrow. The defendant turned left and hit her.

The plaintiff sued the defendant for negligent driving, but she also sued the city, county, and Department of Transportation for negligence in connection with the signals. She nonsuited the county and the Department. She supplemented her claims against the city by claiming that the city had entered into an agreement with the state in 2001. In this agreement, the city had undertaken to change the traffic signals as necessary and agreed to provide traffic lights at different intersections, including the place where she’d been injured.

She claimed the city was aware there was an issue with the traffic signals because there had been a similar accident in 2012 involving a conflicting left turn signal and a walk signal. She claimed the city police had investigated that collision, thereby allowing the city to become aware of the issue. The plaintiff alleged that even though the city knew there was a problem, it had breached its duties by failing to resolve the issue. It had not properly programmed the lights, and it had not maintained the lights or provided a safe crossing. She claimed these negligent omissions were the legal cause of her accident. She also claimed negligence per se based on violations of the Texas Manual on Uniform Traffic Control Devices section 4D.05(F)(1)(2) and City of Edinburg Resolution No. 01-1611.

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Published on: October 28, 2017

Train and Car Collide in Texas

By Carabin Shaw

In a recent Texas train accident case, the plaintiffs appealed a summary judgment granted in favor of a railroad company and a corporation. The railroad company claimed that the plaintiff driver had caused a crash with its train by failing to yield the right of way at an intersection of tracks and highway. At the time of the accident, the plaintiff had been warned of a crossing by a black and white railroad crossing sign, but he ignored the warning and stopped in such a way that he blocked the tracks.

The railroad company claimed the plaintiff was negligent and negligent per se. The driver answered the petition and raised affirmative defenses. Later, the driver counterclaimed, arguing the railroad company had legally caused him disabling injuries. He raised respondeat superior, negligence, negligence per se, and gross negligence as theories of recovery. After that, the parties filed amended petitions to add the plaintiff driver as a co-plaintiff against the railroad company and corporation.

The railroad company moved for summary judgment, arguing it was entitled to judgment as a matter of law because the plaintiff had stopped the car he was driving in such a way that he parked the trailer on the tracks and failed to provide the right of way to the train. The driver responded to the motion but attached no evidence. Later, he filed a statement and an actuarial report.

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Published on: August 13, 2017

Guest Accidentally Shot at Texas Barbecue

By Carabin Shaw

A recent Texas injury case arose when a woman was inadvertently shot by a guest hosted by the defendant. She sued the defendant under theories of negligent activity and premises liability. He moved for summary judgment, and the court granted the motion.

She appealed. First, she argued it was a mistake for the lower court to grant summary judgment on her premises liability theory, since a gun was brought to a place where guests were imbibing alcohol. She believed this was gross negligence. Second, she argued it was a mistake for the lower court to issue a summary judgment on her claim of negligent activity.

The defendant had hosted an evening barbecue, and he’d invited his cousins, among others. The plaintiff was dating one of the cousins, who invited her to the barbecue. One cousin came with a small child, who played with the host’s son inside. The guests were outside drinking beer, but none of them appeared to be drunk.

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Published on: June 8, 2017

Texas City’s Failure to Address a Safety Hazard

By Carabin Shaw

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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