Premises Liability

Published on: December 20, 2017

Liability for Conflicting Traffic Signals in Texas?

In a recent Texas car crash decision, the plaintiff claimed she was hit by a car while using the crosswalk by a courthouse. The traffic light was flashing a walk signal when she started crossing, but the intersection light also gave drivers a protected left turn across the crosswalk with a green left turn arrow. The defendant turned left and hit her.

The plaintiff sued the defendant for negligent driving, but she also sued the city, county, and Department of Transportation for negligence in connection with the signals. She nonsuited the county and the Department. She supplemented her claims against the city by claiming that the city had entered into an agreement with the state in 2001. In this agreement, the city had undertaken to change the traffic signals as necessary and agreed to provide traffic lights at different intersections, including the place where she’d been injured.

She claimed the city was aware there was an issue with the traffic signals because there had been a similar accident in 2012 involving a conflicting left turn signal and a walk signal. She claimed the city police had investigated that collision, thereby allowing the city to become aware of the issue. The plaintiff alleged that even though the city knew there was a problem, it had breached its duties by failing to resolve the issue. It had not properly programmed the lights, and it had not maintained the lights or provided a safe crossing. She claimed these negligent omissions were the legal cause of her accident. She also claimed negligence per se based on violations of the Texas Manual on Uniform Traffic Control Devices section 4D.05(F)(1)(2) and City of Edinburg Resolution No. 01-1611.

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Published on: September 27, 2017

Running a Stop Sign Obscured by Tree Branches in Texas

By Carabin Shaw

In a recent Texas car accident case, the court considered a personal injury lawsuit that arose when the defendant ran a stop sign and crashed into the plaintiff. The defendant was visiting his brother from the UK, and he ran a stop sign. His car hit the plaintiff’s car. The plaintiff went to the ER, but the defendant walked away unscathed. The accident happened near a home.

The neighbors had a tree in their yard that the defendant told police blocked his view of the stop sign. The cop had not heard of any prior accidents at the intersection, and he’d never pulled anyone over for running that stop sign.

The plaintiff and his wife sued the defendant. The defendant designated the city and the property owners whose trees blocked the sign as responsible third parties. He argued that it was their negligent failure to trim the trees that was the legal cause of the accident.

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Published on: August 13, 2017

Is a Slip and Fall on Scaffolding a Premises Liability Case in Texas?

By Carabin Shaw

In a recent Texas Supreme Court opinion, the Court considered a slip and fall case brought against a scaffolding contractor. The case arose when a pipefitter was scheduled to work overtime at a refinery. For the overtime shift, he worked with a different crew than usual, but all crewmembers were employees. The crew had the job of conducting routine maintenance. The pipefitter’s job was dangerous, and he and others were on a scaffold 15 feet above the ground and received fresh air through special equipment.

The pipefitter slipped on some plywood that wasn’t nailed down, and as a result, he fell up to his arms through a hole in the scaffold and hurt his neck. A contractor hired by the pipefitter’s employer built the scaffold. The contractor was required to follow OSHA regulations and other policies, and it needed to inspect about 3,000 scaffolds at the refinery before and during work shifts and use. The scaffold at issue was inspected a week before the work started, but the contractor’s reps weren’t there on the date of the fall, and they were not there during the three days before it.

The pipefitter sued the contractor, claiming improper construction of the scaffold and failure to warn. The contractor didn’t raise the issue of premises liability. The jury found the contractor negligent. It assigned 51% responsibility to the contractor and 49% to the pipefitter/plaintiff. The damages awarded were $178,000 in future medical expenses only.

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Published on: June 8, 2017

Prior Knowledge of a Dangerous Property Condition in Texas

By Carabin Shaw

In a recent Texas appellate decision, an appellate court considered a premises liability lawsuit in which a former tenant challenged a summary judgment dismissal. The case arose when the plaintiff leased a house in Texas from the defendants under a written lease. He claimed that in January 2013, he tripped and fell on the driveway because of broken and loose rocks in the driveway. He alleged he broke his back due to the fall.

He sued the property owners on the basis of negligence and asked for punitive damages based on gross negligence. The property owners filed for summary judgment, arguing that they didn’t owe a duty to their lessee unless they had written notice that a repair was needed, as required by the lease, and they didn’t owe a duty to warn the plaintiff because the disrepair in the driveway was open and obvious, or else the plaintiff knew about its condition for at least six months before his fall. Later, in a supplemental motion, they also claimed that the driveway wasn’t in the property description in their deed to the property, there was no evidence they controlled the driveway, and the plaintiff had failed to put forth evidence that the driveway presented an unreasonable risk of injury.

The plaintiff responded, stating that he knew of the defect but didn’t know of the specific stone that came loose at the end of the driveway. He also filed an untimely amended response. Summary judgment was granted.

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Published on: June 8, 2017

When is a Warning Adequate in a Texas Slip and Fall?

By Carabin Shaw

In a recent Texas slip and fall case, the plaintiff walked around a wet floor warning sign that was situated in the hall outside the bathroom in the defendant’s convenience store. The restrooms were at the back of the store and could be accessed through an open entry that led to a small hall.

Surveillance video showed that there was a yellow warning sign that said “wet floor” located in the entry. When the plaintiff turned the corner and walked into the hall to go to the restroom, he walked past the sign. He also walked past an employee who was wet-mopping the floor. While he was inside the restroom, the employee wet-mopped the entrance where the sign was located. She moved the sign while mopping, mopped the spot where the warning sign was, and then returned the sign to the original place.

Two minutes after going into the restroom, the plaintiff left the bathroom and slipped and fell on the wet hallway floor a few feet from the location of the sign. He was hurt and sued the defendants for personal injuries based on premises liability. As a customer, the plaintiff was considered an invitee to the store under Texas law.

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Published on: June 8, 2017

Texas City’s Failure to Address a Safety Hazard

By Carabin Shaw

In a recent Texas appellate case, four people sued the City of Austin under the Texas Tort Claims Act and the recreational use statute. The case arose when a man driving under the influence drove off the street, jumped a curb, and drove onto a hiking and biking trail next to the road. The car and a traffic warning sign struck and killed two people who were walking, a man and a woman. The man died due to his injuries. The drunk driver was sentenced to five years in prison for aggravated assault with a deadly weapon.

The man’s survivors sued the drunk driver and the city. Against the city, they asserted claims of gross negligence, negligence, premises defect, and special defect and argued that the city had breached its duties under the recreational use statute. They claimed that the city failed to safely build the trail, knew of previous incidents when vehicles traveled over the curb and onto the trail in the same location, and failed to appropriately warn or repair the dangerous condition. They also argued that the city maintained policies that required it to repair the problem once a danger was identified and that their failure to build a barrier was a failure to carry out a ministerial action that the city’s own policies required.

The city claimed that governmental immunity barred the plaintiffs’ claims, since sovereign immunity wasn’t waived for its discretionary choices related to the design of the road and the safety features to be installed. The plaintiffs responded that there was no immunity because the failure to fix the danger on the trail was a negligent failure to implement its own policy, rather than an initial design or policy choice for which there was immunity.

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Published on: June 8, 2017

Injury While Working on a Texas Telephone and Power Line Pole

By Carabin Shaw

In a recent Texas appellate decision, a plaintiff appealed a take-nothing judgment in his personal injury and premises liability claim against an electrical company. The case arose when a man was working as a telephone lineman for a subcontractor of AT&T.

The subcontractor’s work was to install a new line of telephone cable on specific utility poles. These poles had been built in the 1940s in the city’s roads, based on a franchise agreement. At the time, the defendant owned the poles, and they were jointly used by the defendant and AT&T as power and telephone lines, based on an agreement made between their predecessors.

The defendant’s primary power line was attached to every other pole. When installing a new telephone line, the plaintiff used a chain hoist attached to a pole to which the power line was attached. As he took hold of the chain hoist, he tugged it, and the power line attached to the pole touched a bolt on the top of another pole to which it was attached. There was an excessive current that blew the fuse and caused a piece of metal to impale the plaintiff’s hand.

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Published on: April 4, 2017

Psychiatric Patient’s Family Brings Texas Wrongful Death Lawsuit

By Carabin Shaw

In a recent Texas appellate case, the appellate court considered a survival and wrongful death lawsuit involving governmental immunity. The decedent had escaped from his bed at a hospital while receiving psychiatric treatment. He was not secured by wrist or ankle restraints when he left. He suffered fatal injuries when a train hit him shortly after his escape from the facility.

The decedent was brought by paramedics to the facility in 2013 after police found him unconscious. He was admitted for treatment at the main campus at around 10 p.m. and seemed to have an altered mental status that included combativeness and agitation. A notation on the hospital records stated possible drug abuse, and his history showed he had schizophrenia.

The decedent took out his catheter close to 11 p.m. and screamed at the staff. The police got him back on the stretcher, and medication was ordered. He was restrained and eventually calmed down with sedation. Wrist and ankle restraints were ordered, but they were pulled off by 1:30 a.m. He fell asleep with security by his bed. At around 3:16, he got up to go to the bathroom and returned to the stretcher. At 6:40 a.m., he was discharged but then brought back during the afternoon of the same day with severe symptoms of drug-induced psychosis.

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Published on: January 31, 2017

Lack of Service of a Texas Premises Liability Complaint

By Carabin Shaw

It is important to retain an attorney who is diligent about making sure a defendant is served with your complaint. In Oyejobi v. Dollar Tree Stores, a Texas plaintiff slipped and fell in a Dollar Tree Store. Two years later to the day, he sued Dollar Tree, alleging personal injuries and asking for citation and service. Several months later, however, the trial court issued a notice that it would dismiss for lack of prosecution. The citation was issued a few days later, and Dollar Tree was served just under a month later.

Dollar Tree answered the complaint but claimed the case was barred by the statute of limitations. It filed a motion for summary judgment on that basis, arguing that it met its burden to show that it was only served with the complaint after the expiration of the limitations period and that the plaintiff had failed to use diligence to make sure that service was effected.

The plaintiff responded, arguing that his actions to make sure service was effected raised a factual issue as to his diligence. The trial court granted the summary judgment motion, and the plaintiff asked for it to reconsider. The court denied the motion, and the plaintiff appealed.

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Published on: January 31, 2017

Texas Parents Bring a Wrongful Death Case After Daughter Drowns

By Carabin Shaw

In Tarrant Regional Water District v. Johnson, a Texas Court of Appeals addressed a case in which the parents’ 19-year-old daughter drowned in the Trinity River while trying to walk across Trinity Park Dam to get to her job interview. The dam had a kayak chute in the middle, through which the river passed. The parents sued the Tarrant Regional Water District after her death because it operates the kayak chutes and other structures on the river where she drowned.

They brought claims under the Texas Tort Claims Act, claiming that she’d been killed due to a premises defect or a special defect. They also claimed the District was liable under the Texas Tort Claims Act for negligence because its employee had used personal property or provided their daughter with inadequate personal property, and the District was acting either with malicious intent or with gross negligence. They sued for wrongful death and survival causes of action.

The District filed a plea to the jurisdiction, claiming its sovereign immunity hadn’t been waived under the Texas Tort Claims Act because (1) the parents didn’t specify the personal property misused, (2) the premises were not a special defect as a matter of law, and (3) even if the parents alleged a premises defect for which the District’s immunity was waived, its decisions about the design of the dam and its safety features, including warnings, were discretionary. They also argued that the parents hadn’t identified the defect that created an unreasonable hazard, and even if they did, there was no evidence it caused their daughter’s death. They also argued that they had provided warnings, and the kayak chute was an open and obvious danger. The plea to the jurisdiction was denied.

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