Premises Liability

Published on: June 8, 2017

Texas City’s Failure to Address a Safety Hazard

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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Published on: January 31, 2017

Subcontractor Fall from a Forklift in Texas

By Carabin Shaw

In 4Front Engineered Solutions, Inc. v. Rosales, a Texas appellate court considered a case in which a subcontractor sued a property owner after suffering injuries while working with a contractor on the property. The safety manager of a distribution warehouse owned by 4Front contracted with an electrician to repair a sign above the entrance. The electrician had previously done work for 4Front without a problem, using equipment borrowed from 4Front. This time, he subcontracted with the plaintiff, also an electrician, to help him.

The electrician would later testify that when the safety manager asked him to repair the sign, he’d asked to use a scissors lift he’d used on prior occasions, and the safety manager agreed. However, when the electrician and the plaintiff arrived, the safety manager said that it wasn’t available and that he could use a stand-up forklift to do the job. The electrician answered that he could operate the forklift, but slowly.

The electrician and the plaintiff worked for three to four hours one day, and then they came back after a two-day absence to finish the work. The electrician operated the forklift with the plaintiff standing in a man basket attached to the forklift. While the plaintiff was up by the sign on the second morning, the electrician drove the lift off the edge of the sidewalk, and the lift toppled. The plaintiff fell and was badly hurt.

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Published on: January 31, 2017

Premises Liability Claim by a Framing Subcontractor in Texas

By Carabin Shaw

In Alonso v. Westin Homes Corporation, a Texas appellate court considered whether summary judgment was proper in a premises liability case. The case arose when a framer was working on homes being constructed by Westin Homes Corporation and related companies. He didn’t have a written agreement either with the company’s framing contractor or the framing contractor’s subcontractor, for which he worked directly. The framing contractor was doing its work under an independent contractor agreement.

While on the job, the framer fell and hurt his arm. He’d been putting together plywood to create the flooring for the second floor and stepped on a weak spot that broke and resulted in his fall. He’d been using a saw that was modified by the framing subcontractor so that the safety cover wouldn’t engage. When he fell, the framer tried to throw the saw away, but he inadvertently engaged it so that the blade was spinning as he fell. He landed on the saw and sliced his arm, suffering severe lacerations and nerve damage.

The framer sued Westin, claiming negligence, negligence per se, gross negligence, and premises liability. The defendant filed a motion for summary judgment, arguing there was no evidence it had been negligent per se or grossly negligent. It also claimed it didn’t have control over how the work was done and didn’t actually know of the dangerous condition that caused the framer’s nerve damage.

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Published on: December 14, 2016

Visitor’s Slip and Fall at a Texas Hospital

By Carabin Shaw

In Texas and many other states, property owners owe different duties of care to different visitors to their property, based on the reason for the visit. The highest duty of care is owed to invitees, who are people who enter the property for mutual economic advantage. For example, a shopper at a retail store is an invitee of the retail store. A lesser duty is owed to a licensee—a person who enters the property for his or her own benefit.

In Burch v. Texas Health Presbyterian Hospital Dallas, the plaintiff appealed from a summary judgment motion dismissing her personal injury lawsuit against a hospital. The case arose while a daughter was visiting her mother, who was being treated at the defendant’s hospital.

While there, she slipped and fell in a puddle in front of the elevator bank. She sued for negligence. In her complaint, she described herself as a “licensee” of the hospital. She also pled that the defendant owed her a duty to use ordinary care in connection to dangerous conditions of which it was aware, but she wasn’t. She asked for $450,000 in damages, which included her pain and suffering and medical expenses.

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Published on: November 9, 2016

Liability for Injuries from Tangible Property in Texas

By Carabin Shaw

In Constantino v. Dallas County Hospital District, the plaintiff appealed an order dismissing her personal injury case. The plaintiff had sued a county hospital for personal injuries after a television fixed to the wall in her aunt’s hospital room fell on her shoulder and arm and hurt her. She claimed the hospital had negligently furnished personal property in an unsafe condition. Ordinarily, a governmental hospital would be immune from suit, except under certain conditions in which it is waived.

In this case, the plaintiff claimed waiver under Texas Civil Practice & Remedies Code § 101.021(2) on the ground that her injuries had been caused by the use of tangible real or personal property. She argued in the alternative that the falling television was a premises defect, such that immunity was waived under § 101.022.

The trial court granted the defendant’s plea to the jurisdiction on the premises defect claim but denied it on the other claim. The hospital appealed. The appellate court ruled that the plaintiff had simply styled the premises defect claim differently in her § 101.021(2) claim. It also ruled that the petition didn’t show she couldn’t cure the pleading defects and state a claim within the waiver of immunity under § 101.021(2).

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Published on: October 11, 2016

Is a Gap Between the Cattle Guard and the Road a Special Defect in Texas?

By Carabin Shaw

Gonzalez v. Bandera County arose when the plaintiff was thrown from his motorcycle on a Texas public road while crossing a cattle guard in 2013. While crossing the cattle guard, which was maintained by Bandera County, he lost control of the vehicle and crashed.

The plaintiff filed suit against the county and others, claiming that the cattle guard presented an unreasonably dangerous risk of harm, due to an unreasonably dangerous difference in height between the paved road and the cattle guard. He also claimed that bars of the cattle guard weren’t welded together appropriately, such that there were sharp edges exposed in a gap. He also claimed that there were no signs warning that a cattle guard was coming.

The county filed a plea to the jurisdiction and argued it had sovereign immunity from suit. The court granted this plea. The plaintiff appealed.

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