Premises Liability

Published on: April 29, 2019

The Texas Recreational Use Statute and Its Limitations

As the second largest state in the U.S., Texas has a diverse range of terrain making it a great state for recreationalists. However, in Texas, approximately 95% of all the land is privately owned and landowners are not required to allow others on their land. To encourage landowners to open up their property for the public’s recreational use, Texas lawmakers have passed a recreational use statute (RUS). Texas recreationalists should be aware of the state’s RUS, as it can limit an accident victim’s ability to recover for their injuries through a Texas premises liability lawsuit, even if their injuries were the result of a landowner’s negligence.

Texas Statutes Chapter 75 discusses limitations on a landowner’s liability. Collectively, these statutes constitute the Texas RUS. Specific to this discussion, sections 75.002 and 75.003 pertain to the private, non-agricultural land that is used for recreational purposes. The RUS defines recreational activity broadly, including hunting, fishing, swimming, boating, camping, hiking, exploring, bicycling, dog-walking, and “pleasure driving”, among other activities.

Under the Texas RUS, a landowner who gives permission for others to enter their property for recreational purposes does not assure that the property is safe and does not owe their guest any greater duty than they would owe to a trespasser. Similarly, the landowner cannot be held liable for any injuries that are caused by the guest while on their property.

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Published on: April 29, 2019

Texas Supreme Court Dismisses Claim after Pregnant Woman Falls in Dam

By Carabin Shaw

The Texas Supreme Court recently issued an opinion in a Texas personal injury case involving the death of a 19-year-old pregnant woman who fell into a dam near Fort Worth. According to the court’s opinion, the woman tried to walk across the dam when she slipped and fell into the river and drowned. She was five months pregnant at the time. The woman’s parents sued the local water district, which built and maintained the dam, alleging that it was at fault for their daughter’s death. The water district, which is considered a governmental entity, claimed that it was immune from suit for that reason. The plaintiffs claimed that the district was not immune from suit because the claim fell under a specified waiver of immunity.

Governmental immunity generally protects political subdivisions of the state, including cities and counties. However, there are exceptions to the general rule of immunity. For example, the state is not immune for claims involving “use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.” Under section 101.056 of the Texas Tort Claims Act, there is an exception to waivers of immunity if the claim is based on:

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or

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Published on: March 21, 2019

Texas Premises Liability Cases Involving Accumulations of Snow and Ice

By Carabin Shaw

Last month, a state appellate court issued a written opinion in a Texas premises liability case discussing when a landowner can be held liable for injuries caused on their property by accumulations of snow or ice. Ultimately, the court concluded that the plaintiff failed to establish that her slip-and-fall accident was the result of an “unnatural” accumulation, and thus the court affirmed the lower court’s granting of summary judgment in favor of the defense.

The Facts of the Case

According to the court’s opinion, the plaintiff was injured when she fell on a patch of ice as she was walking into a shopping mall. Evidently, the plaintiff arrived at the mall two days after a winter storm had left several inches of snow on the ground. The plaintiff parked her car in the mall parking lot, exited her vehicle, and began to approach the entrance. As the plaintiff was walking up a sloped pedestrian walkway, she fell and landed on a patch of ice. After her fall, the plaintiff noticed that there was a grainy substance, either sand or deicer, on the ground. The plaintiff also saw that there was a pile of snow at the top of the sloped ramp.

The mall filed a motion for summary judgment, arguing that under Texas law a landowner is not liable for injuries caused by the natural accumulation of snow on their property. The plaintiff claimed that by piling the snow at the top of the ramp and by applying sand or a deicer, what may have been initially a natural accumulation of snow became unnatural.

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Published on: October 19, 2018

Court Finds State Liable for Injuries Caused by Drop-off on Road’s Edge

By Carabin Shaw

Texas plaintiffs can have difficulty bringing claims against a governmental entity due to governmental immunity. However, there are many exceptions to governmental immunity that allow plaintiffs to bring claims against governmental entities. In a recent case before a Texas appeals court, the court upheld a claim against the Texas Department of Transportation after the plaintiff was involved in a car accident.

The plaintiff was driving a tractor-trailer on Highway 83 traveling toward Laredo. Another tractor-trailer stopped in front him, and he slowed and went onto the shoulder to avoid colliding with the tractor-trailer. The plaintiff hit an 8 ¾ inch drop-off between the shoulder and the ground. One of the truck’s tires went onto the ground and as the plaintiff tried to bring the tire back onto the shoulder, the tire popped, causing the tractor-trailer to tip over onto its side. The plaintiff brought a premises liability claim against the Texas Department of Transportation, but the Department argued that it was immune from suit. A jury found the Department was negligent, and the court awarded the plaintiff $250,000 in damages. The Department appealed the decision, arguing again it was immune from suit.

Governmental Immunity under Texas Law

Governmental immunity protects the political subdivisions of the state from suit, such as counties, cities, and school districts. A Texas governmental entity is normally immune from lawsuit unless specifically waived under Texas law. The plaintiff has the burden of showing how immunity has been waived. Governmental immunity is waived for certain claims under the Texas Tort Claims Act.

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Published on: August 23, 2018

Texas Court Finds Refinery May Be Liable After Injury Occurred During Contractor’s Repairs

By Carabin Shaw

Property owners can try to evade liability in some personal injury cases by claiming that a contractor was at fault for an accident. However, even when a contractor is used, property owners may still be on the hook. In a recent case before a Texas appeals court, the court explained why a refinery could still be held liable after a contractor’s employee was injured while the contractor was completing repairs.

The plaintiff, a supervisor, worked at a company that was providing maintenance and repairs at a refining facility in Texas. He was injured at work one day when hot liquid sprayed out of a pipe, causing him to suffer severe burns. A solution of raw bauxite dirt and sodium hydroxide called “process liquor” was being pumped through the pipes. Because the process liquor caused residue to build up in the pipes over time, the pipes had to be cleaned from time to time. Some employees were using a jackhammer to remove a deposit that had formed in a pipe when hot liquor sprayed out of the pipe and onto the employee.

The plainitff had to be airlifted to the hospital due to the severity of the burns. He alleged that the refinery was negligent in failing to ensure that the liquor was emptied from the pipe before allowing work to begin. The employer argued that the refinery was not liable for his injury under Chapter 95 of Texas’s Civil Practice and Remedies Code, because the work was being done by a contractor.

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Published on: August 23, 2018

Texas Supreme Court Explains Defendant’s Responsibility to Name Responsible Third-Party Within Allotted Time

By Carabin Shaw

Texas’s Supreme Court recently considered a Texas personal injury case in which the defendant attempted to name another individual as a responsible third-party after the statute of limitations governing the plaintiff’s claim had expired. The court had to determine if the defendant should be allowed to bring in the third-party, or if by waiting until after the statute of limitations expired resulted in the forfeiture of this right.

The Facts of the Case

The plaintiff sued a restaurant after she was injured when a television fell off the wall and hit her. During discovery, when the woman asked who installed the television, the restaurant stated that it was installed by a certain individual. However, the restaurant also stated that it believed the parties had been correctly named, did not name any other potentially parties, and stated that it would supplement its response with the name of a responsible third-party. The restaurant did not supplement its responses before the statute of limitations expired.

Two weeks after the statute of limitations had expired, the restaurant moved for leave to designate the individual as a responsible third-party and it supplemented its discovery responses. The plaintiff argued that it was too late for the defendant to designate another responsible party because the statute of limitations had expired and the defendant failed to timely disclose that the individual might be designated as a responsible third-party.

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Published on: August 23, 2018

Federal Appellate Court Permits Texas Slip-and-Fall Plaintiff’s Case to Proceed

By Carabin Shaw

Recently, a federal appellate court issued a written opinion in a Texas slip-and-fall case that arose after the plaintiff slipped and fell in a Wal-Mart store. The case required the court to determine if the trial court was proper in dismissing the plaintiff’s lawsuit after granting Wal-Mart’s motions for summary judgment. Ultimately, the court concluded that summary judgment was not appropriate for Wal-Mart because the plaintiff’s proposed theory of how the accident occurred was the most plausible among those suggested by the parties.The Facts of the Case

The plaintiff was shopping at Wal-Mart when he slipped and fell in a puddle of clear liquid that was left in an aisle. The puddle was at a low-lying area of the floor, where brown tile met white vinyl.

The incident was captured on low-resolution video that showed an auto-scrubber floor-cleaning machine pass over the area where the tile met the vinyl. The machine – which dispenses a soapy liquid, scrubs the floor, and then sucks up any remaining liquid – paused over the area where the plaintiff fell. The video was too poor in quality to determine with any certainty that liquid was left behind.

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Published on: April 30, 2018

Court Determines Texas Plaintiff’s Workplace Injury Case Was Filed Too late

By Carabin Shaw

In a recent case, the state’s Supreme Court ruled against a plaintiff in a Texas workplace injury case. The plaintiff was employed by an energy company, where his employer and another energy company were drilling for oil. The incident that resulted in this lawsuit occurred when an employee of the other energy company asked him to clean up a spill of fracking liquid; however, the employee did not provide him with any protective gear. Evidently, the liquid contained toxic chemicals that came into contact with the plaintiff’s body. The plaintiff’s skin was burned when it came into contact with the liquid, and within hours, he was in severe pain. About four months later, he was diagnosed with squamous cell cancer.

Procedural Posture

About two years after being diagnosed with cancer, the plaintiff sued several entities but did not include the energy company that employed the employee who instructed him to clean up the spill. However, shortly thereafter, the plaintiff amended his petition to include the company, alleging that it was negligent in allowing the liquid to leak and asking him to clean it up without protective measures. He argued that the company was liable for his cancer, which was a new illness that developed from his exposure.

The energy company argued that they were entitled to summary judgment because the claim was filed past the statute of limitations. The plaintiff argued that the statute of limitations was tolled because he could not have known about their negligence until after he was diagnosed with cancer. The trial court granted summary judgment in favor of the company, and the court of appeals then reversed the decision. The defendant then appealed to the Texas Supreme Court.

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Published on: April 30, 2018

Texas Supreme Court Dismisses $2 Million Judgment for Submitting Improper Claim to Jury

By Carabin Shaw

Seemingly small decisions in a case can end up making or breaking a case. In a recent Texas construction injury case, the Supreme Court of Texas dismissed a $2 million judgment on appeal after the plaintiff submitted a negligence claim to the jury instead of a premises liability claim.

The Facts of the Case

An employee was working on scaffolding at a refinery when he slipped on a piece of plywood, causing him to fall through a hole in the scaffold and suffer a neck injury as a result. The scaffolding was constructed by a scaffolding company that the employee’s company had hired to build scaffolds at the refinery. The scaffolding company was required to inspect every scaffold at the refinery before each work shift and before each scaffold’s use. There were almost 3,000 scaffolds at the refinery at the time. The scaffolding company’s employees were not present on the date of the employee’s fall.

The employee brought a lawsuit against the scaffolding company, arguing that the company improperly built the scaffolding and failed to remedy or warn of a dangerous condition. The case went to trial, and the trial court submitted a general negligence question to the jury. The jury found the scaffolding company was negligent and awarded the employee $2 million in past and future damages. The scaffolding company appealed, arguing that the court should not have submitted a general negligence question to the jury because the claim was a premises liability claim.

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Published on: April 30, 2018

Slip and Fall in a Texas Apartment Bathroom

By Carabin Shaw

In a recent Texas slip and fall case, the plaintiff had sued the owner and operator of the apartment complex where he used to live. He claimed that one night in January, he slipped and fell on damaged laminate flooring in his apartment. He claimed that the defendants had failed to keep a safe living environment and carelessly left damaged bath flooring. He alleged that he suffered severe pain due to back and neck injuries, and he stated damages of more than $450,000.

The defendants answered with a general denial and two motions for summary judgment. They claimed that he could respond with premises liability or negligent activity and that even though his petition didn’t specify his precise theory of negligence, the issue was solely a premises liability dispute.

The defendants argued that to recover damages based on a premises liability theory, the victim needed to prove they had actual or constructive knowledge of the property condition that presented an unreasonable risk of injury. They also argued that to recover damages under the negligent activity theory, the plaintiff had to show their affirmative contemporaneous actions caused the injuries. They also argued that to win under a gross negligence theory, he had to establish a negligent act or omission that involved an extreme chance of risk and that the actor actually, subjectively was aware of this risk, but continued on with conscious indifference to others’ welfare.

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