Premises Liability

Published on: June 9, 2021

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

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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Published on: November 17, 2020

Texas Court Addresses Assumption of Control in Negligence Lawsuit Against Employer

By Carabin Shaw

CS-San-Antonio-9-300x300 Recently, a Texas district court issued an opinion in a lawsuit stemming from injuries a man suffered during a workplace altercation. According to the record, the plaintiff worked in a storeroom of a clothing store that is operated by a larger company. The plaintiff and another employee became involved in a verbal altercation requiring intervention from a supervisor. The supervisor presented the parties with the options to either quit their jobs, change shifts, or continue working together-they chose to continue working together. About a week after the verbal altercation, the men became involved in another argument, and the employee punched the plaintiff. Both of the men were terminated from their positions. The plaintiff filed a lawsuit against the parent company, arguing that they were liable for his injuries because of negligent hiring, negligent training, negligent supervision, retention, and monitoring. A jury found in favor of the plaintiff, and the company appealed.

Among other issues, the company argued that they were not liable because the men were not employees of the parent company, but rather of a subsidiary. The company argued that the plaintiff did not establish that the defendant had an employment relationship with any of the parties involved, or that they controlled the subsidiary’s safety policies. Therefore, the jury’s finding was not supported by the evidence.

Under Texas laws, the court will sustain a sufficiency of the evidence challenge if there is a complete absence of an essential fact, the trial court is barred by the law to give weight to the evidence offered to prove a vital fact, if the preferred evidence is no more than a “mere scintilla,” or the evidence established the opposite of a vital fact. Evidence rises to a sufficient level if it would allow fair-minded people to differ in their conclusions. Further, if the evidence does not create more than a slight suspicion, it is not sufficient.

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Published on: November 7, 2020

WINTER WILL SEE RISE IN CARBON MONOXIDE POISONING WHICH KILLS 500 IN THE UNITED STATES EACH YEAR AND SENDS 50,000 TO EMERGENCY ROOMS

By Carabin Shaw

Every year nearly 500 people in the US die from what is a preventable death: accidental carbon monoxide poisoning. Nearly 50,000 people in the U.S. end up visiting emergency rooms each year due to CO poisoning. There are many ways to protect your family, loved ones, guests and renters. Whether you’re at home or traveling, there are steps you can take to help keep yourself and others safe from CO poisoning.

Owners of hotels, rental properties and homes have legal obligations to make sure their properties are serviced and do not pose a risk of renters, friends, family or guests developing CO Poisoning. Winter temperatures now mean an increase in heating systems running for hours which adds to the carbon monoxide risk.

Surprisingly, fumes are produced by more than furnaces.

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Published on: October 6, 2020

Recovering after a San Antonio Workplace Accident

By Carabin Shaw

pexels-oliver-king-4067795-300x200 Many Texans spend the majority of their time at work. As a result, San Antonio workplace accidents are very common, even for those with jobs that are not physically demanding. Indeed, an on-the-job accident can occur at any moment, and for almost any reason. Thus, all employees need to understand their options when it comes to recovering after a work-related accident.

There are two types of claims that a worker can bring after an on-the-job accident. The first, a workers’ compensation claim, is the more common of the two types of claims. The workers’ compensation system provides employees a simplified way to obtain compensation for a work-related accident without needing to prove that their employer was at fault. Because the workers’ compensation program is a no-fault system, these claims are typically quicker to process than traditional personal injury claims.

The main drawback of workers’ compensation claims is the availability of damages. Injured employees who successfully bring a Texas workers’ compensation claim can obtain benefits for their medical expenses, lost wages, and any decrease in earning capacity. However, unlike a personal injury case, a workers’ comp claim does not entitle an employee to non-economic damages.

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Published on: March 20, 2020

Texas Restaurants and Bars Have a Duty to Protect Patrons

By Carabin Shaw

adult-alcohol-bar-bartender-274192-scaled Under Texas premises liability law, restaurants and bars have a duty to protect their customers. However, the extent of this duty is often called into question in cases where someone is injured while visiting an eating or drinking establishment. In a recent opinion, the court was asked to determine whether the defendant bar owed the plaintiff a duty of care to protect him against the criminal acts of a third party.

According to the court’s opinion, the plaintiff and a friend were drinking at the defendant bar. While they were at the bar, there were no issues. However, at 3 a.m., when the bar closed, the plaintiff was attacked by another bar patron. The fight left the plaintiff permanently blinded.

The plaintiff filed a personal injury lawsuit against the bar, arguing that the bar was negligent for failing to take any steps to protect him against the criminal acts of the other bar patron. In support of his claim, the plaintiff pointed to the fact that the police had been called five times the previous year for fights occurring in the bar’s parking lot immediately after closing.

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