Premises Liability

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 10, 2021

Texas Acid Leak Kills Two Employees and Injures Many Others

By Carabin Shaw

Recently, two employees died, and 30 others suffered injuries after a chemical leak at a LyondellBasell Industries (LBI) plant in Texas. The company is one of the largest plastics, chemicals, and refining companies in the world. The Texas company boasts that its chemicals have provided modern ways to enhance food and water safety worldwide.

According to a recent news report, the chemical leak involved acetic acid, which is a common food preservative used to make vinegar. The blast occurred around 7:30 in the evening when a cap burst on a line of acetic acid. Acetic acid is a clear, flammable liquid whose vapor can be corrosive to the eyes and skin. The burst released approximately 100,000 pounds of an acetic acid chemical mixture into the air. In addition to acetic acid, the burst released hydrogen iodide and acetate. The combination of these chemicals can be toxic and cause severe burns. Emergency responders and investigators are still investigating the accident; however, they do not believe that an explosion or fire caused the leak.

Chemical leaks such as the one at the Texas plant can be toxic and deadly to anyone in the vicinity. Chemical spills and leaks often occur because of negligence surrounding safety regulations, equipment, or employee training. Companies should make sure to properly train their employees and workers to ensure that they understand how to prevent spills and mitigate harm if a spill does occur. However, many companies prioritize economic gain over employee and community welfare. When this occurs, the companies may pressure workers to complete tasks in an unreasonable amount of time. This can naturally result in workers cutting corners to meet production deadlines.

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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 16, 2021

State Supreme Court Determines Jurisdiction Issue in Texas Electrocution Case

By Carabin Shaw

The Supreme Court of Texas recently delivered an opinion addressing whether the Texas Public Utility Commission (PUC) has jurisdiction over a negligence case involving a good Samaritan. Here, the deceased was electrocuted while trying to help victims of a crash that caused a power line to fall. The good Samaritan’s estate and family filed a negligence lawsuit against the power line company, arguing that they were negligent in their duty to design, construct, operate, and maintain its electricity system. They asserted that the company failed to ensure that they would de-energize portions of the distribution lines when they experience faults.

The accident occurred when one vehicle ran a red light and hit a wooden utility pole maintained by the company. The man was driving past the scene when he stopped to help the accident victims. As he was walking, the man came into contact with electricity radiating through the ground. The shock knocked him to the ground and his clothes caught on fire; tragically, he passed away three weeks later from his injuries.

In response, the power company filed a plea arguing that Texas’ PUC maintains jurisdiction over the case. In support of their claim, the power company argued that PUC has exclusive jurisdiction over an electric company’s utility rates, operations, and services, extends to adjudicating whether a company complied with the law. The defendants argued that the plaintiffs’ complaints bring up fundamental questions about how a power company maintains its distribution systems. The plaintiffs argued that the case falls under the Texas Estates Code, and the probate court has jurisdiction to adjudicate the matter.

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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 9, 2021

ACCIDENT INJURY REPORT: Two-Year-Old Who Fell Into Hot Tub At Kilgore Hotel Dies

By Carabin Shaw

May 9, 2021: KILGORE, Texas (KETK) – An East Texas toddler who was fighting for his life after a swimming accident at a Kilgore Texas hotel has died.

Luke Wayne Killough, age 2, died Friday, April 30 due to brain trauma. Luke was about to go swimming with his 4-year-old sister on Sunday, April 25 at the Kilgore Holiday Inn and Suites when he fell into the hot tub. His sister tried to save him but was unable to do so. She ran to her father, Scott Killough, who was nearby caring for his baby to tell him. Luke’s mother Dominique Killough said that the child told her father that her “boogie”, a nickname for her brother, was floating face-down in the hot tub.

According to the mother, Scott raced over, pulled Luke from the water and helped Luke throw up food that had become stuck in his throat.

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Published on: April 19, 2021

Dangers of Water Parks Which Neglect to Inspect Their Facilities Daily for Safety

By Carabin Shaw

April 2021: Playa del Carmen, Q.R. Mexico— A criminal investigation into the death of a 13-year-old boy at an Xcaret water park has been opened. In a press release, the Attorney General of the Mexican state made the announcement after it was notified of the death of the child via a private hospital.

According to the Attorney General, staff from the hospital reported the drowning death of Leonardo Luna-Calvo, 13. In their official news release, Attorney General of Quintana Roo said, “the rule of law in Quintana Roo is firm and there will be no privileges for any group or person who intends to omit the responsibility that corresponds by law.”

Waterpark management has to inspect what they require from employees responsible for the safety of the guests at their facility on a daily basis. Tragic events like this are preventable if safety measures are carefully and routinely followed.

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Published on: April 13, 2021

Texas Property Owners’ Liability for Employee Contractor Injuries

By Carabin Shaw

collection-of-construction-safety-helmet-38070-300x197 The Supreme Court of Texas recently issued an opinion in a case involving a property owner’s liability for injuries an employee contractor sustained while working on the property. The case arose when the two construction workers suffered injuries while working on a condominium project owned by the defendant. The defendant hired an individual instead of a general contractor to manage the project. A high-voltage power line hung behind the property, and the defendants told the project manager about the line because it was “too close” to the building. The project manager advised the plaintiffs to begin the project even though the power line was still intact. While working on the project, electricity shot down the rebar, and the power line snapped, causing the workers to suffer burns and other serious injuries.

The workers filed a negligence lawsuit against the power company and the defendants. The trial court entered a judgment per a jury finding that the property owner was liable under ordinary-negligence and premises-liability theories.

The defendant appealed, arguing that the employee’s evidence was not legally sufficient under Chapter 95. In response, the plaintiffs argued that the Chapter does not apply, the defendant waived some arguments, and the evidence was legally sufficient. Amongst several issues, the defendant argued that they could not be held liable because the danger was open and obvious. Under Texas law, a danger is open and obvious when the invitee possesses “knowledge and full appreciation” of the hazard’s extent and nature. Typically, when the danger is open and obvious, the property owner does not maintain a duty to warn of the danger or make the premises safe. Inquiries regarding whether a danger is open and obvious are not subjective but rather what a reasonably prudent person would have known. Courts will look to the totality of the “particular circumstances.”

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Published on: December 14, 2020

Are Companies Liable for Accidents Caused by Texas Independent Contractors?

By Carabin Shaw

pexels-ian-panelo-3087484-200x300 Many Texas companies hire independent contractors because of their cost-effective nature. With an independent contractor, companies can use the contractor for a particular project when it needs to be done and are free from being tethered to the particular contractor when the work is complete. When a contractor’s actions cause an accident, however, there is a question of liability on the company’s part. Is the contractor or the company responsible? It can often be a complicated question.

For example, in a recent Texas Supreme Court opinion, the court considered a case involving the liability of a company that hired an independent contractor. When a Texas utility company entered into a contract with an independent contractor, the utility company issued a work order for the independent contractor to remove a utility pole. To remove the pole, it needed to be pulled out of the ground, and then the hole would be filled with dirt. The independent contractor completed the project and filled the hole, and another company that the utility company contracted with to inspect the work of its contractors confirmed that the job was complete. The plaintiff was mowing her lawn when she stepped into a hole that was two and a half feet deep in the area where the pole had been removed. The plaintiff sued the utility company, its independent contractor, and the company responsible for checking the contractor’s work for negligence. The trial court and court of appeals sided with the defendants by granting summary judgment, and the plaintiff appealed.

On appeal, the plaintiff argued that the utility company owed a duty to her to ensure that the independent contractor performed its job in a safe manner. Because the removal of the pole was inherently dangerous work and the utility company had a contractual right to control the independent contractor, they owed her a duty. However, the court disagreed and sided with the defendants, arguing that there was no duty on the part of the utility company to the plaintiff.

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