Personal Injury

Published on: September 21, 2015

Liability for Texas Restaurants When Patron Suffers Allergic Reaction?

In Gibbons v. Luby’s, Inc., the plaintiff suffered anaphylaxis at a Texas restaurant after eating a salmon croquette that she did not know contained whitefish, to which she was allergic. After she started eating, her throat became scratchy, and her face turned red. A restaurant employee told her that the ingredients included whitefish.

The plaintiff and her friend headed for the hospital, but it was too far away. The friend stopped at a fire station, and the paramedics treated her until an ambulance could come. She was unconscious by that point. She was taken to the hospital and diagnosed with anaphylactic shock, acute respiratory failure, and hypoxemia. By that time, Gibbons was unconscious.

Gibbons was taken by ambulance to the hospital, where she was admitted and diagnosed with anaphylactic shock, hypoxemia, and acute respiratory failure. The physicians sedated her, intubated her, and put her on life support. She was discharged two days later.

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Published on: September 21, 2015

Sufficient Evidence for Damages in Texas Car Accident Case

By Carabin Shaw

In Dabbs v. Calderon, a Texas Court of Appeals considered a case in which the defendant ran a red light and crashed into two cars. One of the passengers in one of the struck cars was pinned inside the car. When he was freed by emergency personnel, they found his leg was badly hurt. Doctors diagnosed him with a fracture in his shin bone and gave him a pain medication prescription, stabilized his leg, and discharged him. At home, his family had to cook for him and give him baths.

Three weeks later, his leg was covered in fracture blisters, and he had to stay at the hospital for five days. Six months later, he had to have a surgery, and he went to physical therapy three days a week for several months until April 2012. Later he testified that his right leg atrophied from non-use, and when he did try to use it, his foot would swell and turn blue.

The accident victim sued the woman who crashed into the two cars, claiming she negligently ran a red light because she was distracted. The woman claimed she couldn’t stop because her brakes failed.

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Published on: September 21, 2015

Injuries on a Texas Demolition Project

By Carabin Shaw

In Lopez v. Wildcat Cranes, a welder on a demolition project was injured. The welder was cutting a large steel beam, weighing thousands of pounds, which was located 25 feet above the surface of the roof, and removing it from the ceiling structure. The welder used a scissor lift to reach the beam, and another worker was going to cut the other end as soon as the welder finished cutting.

A crane was necessary to extract the beam. A company called Wildcat Cranes provided the crane, and its employee operated it. The one provided had a 12,000-pound capacity. The operator relied on a lift director to estimate the weight of the beam and direct the extraction by radio. The operator had the final decision as to whether the beam was within the crane’s capacity to lift. In this case, the lift director estimated the weight was 12,000 pounds, so he told the operator to apply a 6,000-pound counterweight. The estimate was not right.

As the beam was being cut, the operator knew something was wrong. The cab in which he was sitting began shaking, and a safety alarm went off, among other things. On the roof, the beam once cut fell four feet, and either it snagged the welder’s safety lanyard or hit the scissor lift. The welder was thrown from the platform and hung there by his safety lanyard. He climbed back on the platform without getting hurt.

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Published on: August 9, 2015

Can A Private Engineering Firm Have Sovereign Immunity From Personal Injury Lawsuits in Texas?

By Carabin Shaw

In Brown and Gay Engineering, Inc. v. Zuleima Olivares, the Texas Supreme Court decided an important issue related to sovereign immunity in personal injury lawsuits. The case arose when a drunk driver entered the exit ramp of Westpark Tollway and drove east in the westbound lanes for eight miles before crashing into a driver. Both of them were killed. The part of the road where they died was under the control of the Fort Bend County Toll Road Authority, a local government corporation that was created to design and build it.

The Authority had contracted with the defendant, an engineering firm, in accord with Texas Transportation Code section 431.066(b). This code section allows local governments to retain an engineer to develop a transportation system or facility. The engineering firm was responsible for providing the necessary equipment and personnel and for obtaining insurance for the project.

The mother of the victim of the drunk driving accident sued the engineering firm and others, arguing that the failure to design proper signs and other devices near the exit ramp where the drunk driver entered had legally caused the victim’s death. The Authority filed a plea to the jurisdiction, claiming governmental immunity, which was denied by the trial court. The appellate court reversed, holding the Authority had sovereign immunity based on its discretionary acts related to traffic safety devices. When the case went back to the trial court, the plaintiff nonsuited the government.

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Published on: August 9, 2015

Proximate Cause in a Texas Wrongful Death Case

By Carabin Shaw

In Sinclair v. Estate of Ramirez, the defendant appealed in connection with a verdict entered in favor of a decedent’s estate and his wife in a wrongful death case. The case arose when the decedent finished his welding job and drank 14-18 beers with his coworkers. He and two coworkers went to a nude cabaret, which was 50 miles away, and operated by the defendant. They drank through the evening inside the club. The decedent bought four private dances in a VIP room. At some point, the decedent got aggressive with a dancer. The dancer believed that he intended to rape her and escaped.

The dancer told the defendant. The decedent left the VIP room and asked for a refund. A witness testified that he wanted a refund because he thought he would get more because he paid for dances. The defendant refused to give the refund. The decedent threw a metal box at him. The defendant got a whip from the other side of the bar.

The decedent pushed through some doors, breaking them. To stop him from getting to an area where the defendant stored cash, the defendant ran after him. The decedent charged the defendant, who hit him with the whip. The club DJ pulled the decedent back, and the decedent fell to the floor, stunned. A club patron asked if the defendant wanted the decedent removed. The defendant said yes but later claimed he didn’t tell him to drag the decedent from the club.

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Published on: August 9, 2015

Apportionment of Damages in Texas Construction Accident Lawsuits

By Carabin Shaw

In Joyce Steel Erection, Ltd. v. Bonner, a Texas appellate court considered a plaintiff who was pinned by an extremely heavy concrete tilt wall at a construction site. He suffered serious injuries and needed numerous expensive surgeries. He sued Joyce Steel Erection, Ltd., Caruthers Construction, and Self Concrete, Inc. Joyce didn’t settle, but the others did.

The plaintiff proceeded to trial against Joyce. The jury found $3.5 million in past damages and $3.5 million in future damages. It determined the defendant was 34% at fault, the plaintiff was 34% at fault, and the plaintiff’s employer was 33% at fault. The trial court entered judgment against Joyce after deducting for the other parties’ degree of fault and the settlement amounts.

The defendant appealed, arguing that the trial court should have excluded any damages that could be attributed to the plaintiff’s employer and for failing to follow a particular formula in calculating prejudgment interest.

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Published on: May 3, 2015

Proportionate Responsibility in Texas Work Accidents

By Carabin Shaw

In Hassan v. Rock, a plaintiff appealed from a judgment awarding him $212,136.64 in damages because he didn’t think the trial court should have reduced the award by his proportionate responsibility for the accident. The defendant had hired the plaintiff as a day laborer to clear brush out of an empty lot that belonged to the defendant’s friend. The defendant used a Bobcat loader, and the plaintiff crouched under the bucket. The bucket fell and hurt the plaintiff.

The plaintiff sued the defendant for negligence and gross negligence. The plaintiff objected to submitting proportionate responsibility questions to the jury, claiming that proportionate responsibility didn’t apply because the defendant was his employer but didn’t have workers’ compensation insurance as required under Tex. Lab. Code § 406.033(a)(1).

Nonetheless, the trial court submitted the questions related to the plaintiff’s responsibility for getting injured to the jury. The jury found that the defendant was 57% responsible and the plaintiff was 43% responsible. The plaintiff moved to disregard the jury’s answers to the proportionate responsibility questions. The trial court denied the motion and rendered a judgment reducing the plaintiff’s damages award by 43%. The plaintiff appealed.

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Published on: May 3, 2015

Negligent Supervision in Texas

By Carabin Shaw

In ExxonMOBIL Corporation v. Pagayon, the Texas Court of Appeals considered a case in which a man died after a fight between himself, his son, and an employee of the defendant at the defendant’s service station and convenience store. The defendant appealed a judgment in favor of the man’s wife, children, and estate on their wrongful death claims.

Pagayon and Cabulang were employees at a convenience station. They and Pagayon’s father had known each other before the employment. The son had conflicts with Cabulang at work and told both his manager and his father about them. The father phoned Cabulang, and they spoke heatedly about the conflict.

While working together, Cabulang cursed at Pagayon and in Pagayon’s view threatened him and his father. A coworker told the store manager, but the manager simply told the son to stay away from Cabulang. The father came to the store to pick up his son, and Cabulang started a fight with him, hitting him multiple times in the head and back. The father was taken to the hospital emergency room. He was moved to the ICU, and when they tried to wean him from the respirator, he was transferred to a long-term intensive care facility. The father died of respiratory failure, renal failure, and cardiac arrhythmia. The organ failure was caused by sepsis, which is an infection of the blood.

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Published on: December 11, 2014

When Can A Nonparty to A Texas Contract Be Compelled to Arbitrate a Personal Injury Case?

By Carabin Shaw

In ENGlobal U.S. Inc. v. Gatlin, a Texas appellate court was asked to decide whether a party to a contract with an arbitration clause could compel arbitration of a personal injury claim by a nonparty to the contract under the doctrine of “direct benefits estoppel.” The case arose from Phillips 66’s ownership and operation of an oil refinery. The operator of the refinery had contracted with Clean Harbor, an industrial service contractor, to clean oil storage tanks at the refinery.

An employee of the industrial service contractor was working as a hydroblaster at the refinery. While working, the lanyard on his safety harness got caught in the walkway, resulting in his fall and back injury.

When the accident happened, ENGlobal was a contractor that performed engineering for Phillips 66. Their relationship was governed by a master service agreement that included an arbitration provision. The employee had not signed this agreement, and he sued Phillips 66, ENGLobal, and another company in order to recover damages. He alleged negligent undertaking and premises liability. Continue reading →

Published on: December 11, 2014

Wrongful Death on the Job in Texas

By Carabin Shaw

Most of the time, the only recourse for survivors of a family member who dies because of a job are workers’ compensation benefits. However, when an employer shows gross negligence and an employee dies, the rules are different. In Garay v. GR Birdwell, the decedent’s surviving spouse and a representative of the decedent’s minor child sued the decedent’s employer for wrongful death after the decedent died while operating a trench roller. The accident happened while the decedent was working on his employer’s behalf at a construction site.

The employer was completing construction of a concrete wall, and the decedent operated a trench compactor on the employer’s behalf. He had worked for the employer for five years without any accidents. Usually, workers used a remote control with the trench roller, but according to another employee, the decedent said the remote control wasn’t working, even though he was able to use it earlier in the day. Therefore, the decedent manually operated the roller. Another employee had manually operated it the same way many times before.

While operating the roller, the decedent stood at a pinch point between the roller and the wall. The roller pinned him there. His coworkers tried to get him out, but he already had suffered serious injuries and died there. Continue reading →