Personal Injury

Published on: August 23, 2021

Texas Negligence Lawsuit Against Outdoor Expedition Company

Recently, an appellate court issued an opinion in an accident lawsuit involving a Texas resident. The victim’s joined his church group on an out-of-state wilderness expedition trip. The church hired a company to arrange the group’s activities. The company required the participants to complete a “registration form” and “medical form.” On the first day of the trip, the victim participated in a rappelling course. However, during the course, he became inverted, fell, and died. The victim’s wife filed a lawsuit against the rappelling company.

In response to the lawsuit, the company moved for summary judgment arguing, amongst several issues, that Texas law did not apply to the case. Cases involving Texas residents suffering injuries in another state can pose many challenges to plaintiffs. The law provides that in diversity actions, the court should apply the conflict-of-laws rules of the forum state. This also applies in contract language dispute matters.

In this case, Texas laws require liability releases to be “adequately conspicuous,” which is a stricter standard than Colorado law. As such, the plaintiff contended that because her husband signed the release in Texas, Texas law should apply. However, the magistrate judge concluded that Colorado law controlled the matter. On appeal, the appellate court explained that Colorado law applies because diversity actions require courts to apply the conflict-of-laws rules of the forum state.

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Published on: August 17, 2021

Nearly 60 Percent of Child Car Seats Are Misused and Dangerous

By Carabin Shaw

San Antonio, Texas: It’s back to school and back on the roads in Texas, make sure your children are safely buckled up or strapped in for trips in the car.

Motor vehicle crashes are a leading cause of death among children. While most people believe their children are properly buckled up, the National Highway Traffic Safety Administration (NHTSA) points out that 59% of all car seats are misused. The best way to keep young children safe in your vehicle is to make sure they’re properly buckled up in a car seat. That means selecting a car seat that’s appropriate for a child’s age and size and installing it correctly.

“We encourage parents to take advantage of car seat safety checks available during Passenger Safety Week (September 19-25^th). With proper car seat, car seat installment, and seat belt placement, children are far safer during a motor vehicle collision,” said Carabin Shaw Attorney Carla Dixon. “Knowing the guidelines for height and weight for your children is also extremely important to ensure your child is in the proper car seat or booster seat. Serious injuries can be greatly reduced as well if we place children rear-facing car seats until ages 2-4.”

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Published on: July 30, 2021

Texas Amusement Park Injury Lawsuit

By Carabin Shaw

Texas’ year-round warm climate combined with vast open spaces make the state home to an array of theme parks, amusement parks, and outdoor recreational parks. While these locations are a great place for couples and families to spend a day together, they also pose many risks to park-goers and employees. While serious injuries at a Texas amusement park are uncommon, they occur and can result in lifelong consequences.

For example, The New York Times recently reported on chemical exposure at a Texas amusement park. In late July, 26 people suffered exposure to bleach and sulfuric acid at a Six Flags amusement park. Park officials became aware of the incident when nearly 60 people began experiencing burning and breathing problems while in the shallow end of a children’s pool. Authorities evacuated the park and had the affected individuals wash their eyes under the fire truck’s hose. However, nearly half of the individuals were taken to the hospital, and one person remains in critical condition.

The children’s pool should maintain a pH balance of 7. However, testing revealed that the pool contained a combination of 35 percent sulfuric acid and approximately 12 percent bleach. While investigators do not believe the contamination was intentional, they are unsure how the event occurred. The chemicals found in the pool are the typical chemicals that the park uses every day to clean and sanitize the pool. However, they are investigating the system that injects the chemicals to determine whether the system malfunctioned. Safety logs indicated that safety officials inspected the park about three weeks before the incident. A County Judge closed down the park until the investigation is complete. Further, the Judge indicated that the park should have been recording the pH balance levels; however, they have yet to discover whether that log exists.

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Published on: July 29, 2021

Court Finds Texas Has Jurisdiction to Hear Products Liability Lawsuit

By Carabin Shaw

The Supreme Court of Texas recently issued an opinion in a lawsuit against an insulation products company. According to the court’s opinion, the plaintiffs built a home in Texas and purchased products from a spray foam insulation company. The insulation was designed to make the home quieter and energy efficient by sealing areas where air loss occurs. Shortly after the installation, the family began suffering from various ailments, including coughing spells, burning eyes, allergies, and headaches. The company advised the family that the spray foam smell would dissipate over time. The company then sent an “independent contractor” sales representative to inspect the property; however, the family never received the inspection results.

In response, the family filed a lawsuit against the spray foam company, alleging various claims, including products liability and negligence. They argued that their injuries arose from the sale and installation of the spray foam used in their home. In response, the company contended that because the company never sold or advertised any of the products in Texas, the state did not have jurisdiction over the matter. Further, they argued that they did not have any involvement with the company that inspected the property. The appeals court agreed, finding that the plaintiffs failed to establish that Texas had either general or specific personal jurisdiction over the defendants.

Under Texas law, a court must have subject matter and personal jurisdiction over the parties to issue a judgment. Texas courts can assert personal jurisdiction over a nonresident if the state’s long-arm statute permits exercising jurisdiction and comports with federal due-process guarantees. Specific jurisdiction applies when the defendant’s contact with the state is purposeful, and the cause of action arises from those contacts.

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Published on: July 12, 2021

Recreational Aviation Accident Claims in Texas

By Carabin Shaw

Hot air balloon rides and other similar in-air recreation activities are a unique and thrilling experience for many participants. While these excursions provide the public with a special vantage point, there are inherent risks in participating in these activities. Texas hot air balloon accidents can pose many challenges to victims and their loved ones. The public is urging lawmakers to push for more protections for balloon riders. This push stems from the Federal Aviation Administration’s failure to implement regulatory changes following a devastating 2016 hot air balloon accident.

A recent investigative news report highlighted the frustration the Texas hot air balloon accident victims’ families are experiencing nearly five years after the accident. A woman lost her daughter and granddaughter in a hot air balloon accident in 2016. According to reports, the women were two of the 16 people who died when the hot air balloon flew into a power line. The hot air balloon pilot had reportedly taken a combination of various prescription medications before the flight. The woman is working with lawmakers on legislation that would require commercial balloon operators to take medical and physical exams before licensure. However, as the fifth anniversary of the accident passed, the Federal Aviation Administration is yet to implement any of the rules or regulations. However, even with oversight, hot air balloons continue to pose serious risks to operators and passengers. Recently, five people died in a New Mexico hot air balloon accident. The hot air balloon hit a power line and separated the balloon from the gondola where the passengers stand.

Despite regulations, hot air balloons continue to pose significant risks to passengers. There have been about 20 hot air balloon accidents every year and about 26 fatalities in the last twenty years. Although hot air balloon fatalities seem low, the statistics should be looked at relative to the number of people who ride these vessels. There are many reasons these accidents occur, and the majority involve some degree of negligence. The leading causes of hot air balloon accidents are:

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Published on: June 17, 2021

Court Permits Defense to Request Healthcare Billing Records in Texas Car Accident Lawsuit

By Carabin Shaw

CS-San-Antonio-9-300x300 The Supreme Court of Texas recently issued an opinion finding that a trial court abused its discretion in denying a defendant’s discovery request. The case arose after the plaintiff suffered injuries in a Texas car accident with a tractor-trailer driven by the defendant’s employee. After the accident, the parties took photos, exchanged identifying information, and drove away without reporting injuries. A few days after the accident, the plaintiff sought medical treatment and underwent several surgeries on his spine and shoulder. His medical providers charged him over one million dollars for the surgeries and treatment. The plaintiff did not pay for the care. His attorneys notified the healthcare providers that they would protect the healthcare providers’ interest if they settled the underlying personal injury lawsuit. However, they specified the settlement would only include reasonable and necessary medical charges.

During the trial, the defendants served subpoenas on the plaintiff’s healthcare providers. Specifically, they wanted information related to the providers’ billing practices and rates. Three of the providers filed motions to quash the subpoenas, and the trial court granted the motions. The defendant narrowed the requests, but the healthcare providers responded that the narrowed requests contained the same defects.

Under the rules of evidence, evidence is “relevant” if it has “any tendency” to make a fact more or less probable. For pre-trial discovery, evidence that may not be admissible at trial may still be permitted, so long as it’s “reasonably calculated to lead to the discovery of admissible evidence.” In the context of personal injury lawsuits, medical records and bills reasonably related to a party’s injuries or damages are typically relevant.

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Published on: June 9, 2021

Court Finds Volunteers in Texas Church Fire Accident Were Licensees, Not Invitees

By Carabin Shaw

The Supreme Court of Texas recently issued an opinion in a premises liability case involving teenage church volunteers who suffered injuries in a fire. The church hosted an annual festival featuring rides, games, music, and vendors—the church profits from the festival from receiving a portion of the sales from vendors and sales. The 4-H Leaders Association (4-H) rented a booth at the festival to sell various food items. 4-H paid the church to rent the booth, but the church did not receive any profits from the booth’s sales. According to the record, a fire broke out in the booth, and five volunteers, four of whom were teenagers, suffered injuries in the fire.

The trial primarily hinged on the cause of the fire, the plaintiffs arguing that it stemmed from a defective propane tank, while 4-H and the church argued that it was from one of the volunteers spilling ice into a fryer. The trial court found in favor of the defendants, and the appellate court affirmed in part and reversed in part. The appellate court found that the plaintiffs did not have a claim against 4-H but remanded the case against the church for a new trial.

Under Texas law, a property owner or occupier’s duty to someone on their property depends on the person’s status. Typically, property owners owe invitees a duty to “exercise reasonable care to protect against unreasonable risk of harm,” that the owner knew or should have known through reasonable diligence. Texas property owners owe licensees a lesser duty to use ordinary care to warn of or make a dangerous condition, that the owner knows of, safe.

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Published on: June 4, 2021

Texas Contractor’s Duty of Care to Independent Contractor

By Carabin Shaw

collection-of-construction-safety-helmet-38070-300x197 The Supreme Court of Texas recently issued a decision following a petition from review from the Court of Appeals for the Fifth District. The court was tasked with determining whether a general contractor on a construction project owed a duty of care to a subcontractor’s employee who suffered injuries on the job. The general contractor hired a subcontractor to erect a concrete tower. The victim, an employee of the subcontractor, suffered injuries when the tower detached and fell on his legs. The victim filed a lawsuit against the general contractor alleging negligence and gross negligence. He argued that the defendant had contractual and actual control over the subcontractor’s work and thus owed the victim a duty of care. The trial court found in the defendant’s favor, and the court of appeals reversed.

On petition to the Supreme Court of Texas, the defendant argued that it did not owe the victim a duty of care. Generally, under Texas law, an entity that employs an independent contractor does not maintain a duty to ensure that the subcontractor performs its work safely. However, an exception applies when the contractor maintains some level of control over the way the contractor performs the work that caused the damage. The element of control must relate to the activity or condition that caused the injury. Further, the control must extend to the “means, methods, or details” of the independent subcontractor’s work.

In this case, the defendant argued that it did not have actual control over the subcontractor. It cited testimony where the subcontractor’s superintendent stated that the contractor did not instruct any of the subcontractor’s employees and no one from the contracting company told him how to install the tower or its braces. In response, the plaintiff argued that the contracting company asserted actual control by having someone on-site every day to inspect for safety. Additionally, someone from the company was there to inspect on the day of the accident, and the company was aware that the towers were not appropriately braced for wind. However, the court found no evidence that the contracting company exercised control over the subcontractor’s work. Further, the court reasoned that the courts have not recognized the presence of a safety employee as enough to give rise to actual control.

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Published on: May 24, 2021

Family Files Lawsuit After Texas Truck Accident Outside of SpaceX Launch Site

By Carabin Shaw

A family initiated a Texas wrongful death lawsuit against SpaceX following a car accident outside its launch site. According to a recent news report, the tragic accident occurred when the family left a campsite early after officials called for an evacuation because of rising tides. While driving home, the family was involved in a harrowing accident with a large semi-truck that was stopped in front of SpaceX. The accident took the life of the 35-year-old husband and father and resulted in serious injuries to the man’s wife and three young children. An autopsy report states that the man died from “blunt force” trauma due to the motor vehicle collision.

The family filed a wrongful death lawsuit alleging that SpaceX was grossly negligent because they failed to provide adequate lighting and warnings around their facility. Further, their claim contends that the spacecraft and rocket manufacturer did not maintain procedures to direct stopped or obstructive delivery vehicles to avoid these types of accidents. Moreover, the family maintains that the company, and not the local government, maintains responsibility for addressing the increased traffic that their company begets. The family argues that the company prioritized quick completion of their facility rather than the safety of those traveling on the dark and narrow roadway. In response, the company purports that the family, not the company, maintains responsibility for the collision. The company’s attorney stated that the man failed to use necessary “care and caution,” as is expected of a reasonably ordinary person when navigating the highway.

This case presents many issues regarding who maintains responsibility for maintaining Texas roads. There are many reasons that Texas roadways fall into disrepair and become dangerous hazards to motorists. While city planning and infrastructure development may address the party responsible for designing a dangerous roadway, it still leaves the question of who is responsible for road maintenance. In these situations, many parties may hold responsibility for repairing and modifying roadways to meet current demands. A federal, state or local government may all hold some responsibility for a road’s upkeep. However, the question only gets more complex when a large business drastically impacts a roadway. In these cases, fault and liability may become more convoluted. It is crucial that those who suffer injuries on a Texas roadway contact an attorney to discuss their rights and remedies.

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Published on: May 13, 2021

Supreme Court of Texas Upholds $15M Verdict in Product Liability Claim

By Carabin Shaw

activity-board-game-connection-desk-613508-300x200 The Supreme Court of Texas issued a decision in Emerson v. Johnson, upholding a multi-million dollar verdict in a Texas product liability lawsuit. The record indicates that the plaintiff, a highly experienced HVAC repairman, suffered severe burns to over 60% of his body while installing an HVAC unit. After an outdated and malfunctioning compressor in the unit exploded, the unit released scalding hot liquid all over the man. Despite the man’s HVAC experience, there was no way he could have known that the new compressor incorporated outdated technology inside the unit.

The man filed a product liability lawsuit against both the product’s manufacturer and an affiliate who designed and made the unit. He argued that the defendants defectively designed and manufactured the terminal and compressor. After a trial, a jury found that the older terminal design was unreasonably dangerous. The defendant asked the court to overturn the verdict based on legal sufficiency grounds or for a retrial because of a jury charge error.

On appeal to the Supreme Court, the defendants’ case largely rested on their contention that the plaintiff failed to present evidence that the terminal was unreasonably dangerous. A defective design inquiry requires the jury to find that the product is unreasonably dangerous as designed. The jury must consider the utility of the product and the risk of its use.

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