Premises Liability

Published on: January 31, 2017

Lack of Service of a Texas Premises Liability Complaint

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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Published on: September 13, 2016

Duty in a Work Injury Case in Texas

By Carabin Shaw

In Kalinchuk v. JP Sanchez Construction Co., a Texas plaintiff appealed summary judgment in favor of the defendant, a construction company. The case arose when a city hired a construction company to renovate one of its baseball fields. The city asked the construction company to move bleachers during the renovation, and two of the company’s employers did so with a forklift.

The plaintiff was a welder hired by the city who was asked to break the bleachers into smaller sections. While he was working, the bleachers fell on his back, causing an injury. He sued the construction company, alleging they were negligent and grossly negligent for failing to take sufficient precautions to make sure he was safe when moving the bleachers.

The construction company moved for summary judgment. It argued that it didn’t owe a duty to the plaintiff as a matter of law because it didn’t employ or exercise control over the plaintiff. It also argued that the plaintiff had only produced a scintilla of evidence to show there was a duty, a breach of duty, and causation. The plaintiff’s response included deposition testimony from the plaintiff, construction company employees, and his supervisor. The trial court granted summary judgment nonetheless, although it didn’t state the reason for its decision.

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Published on: June 12, 2016

Can a Texas Defendant Require You to Submit to a Medical Examination?

By Carabin Shaw

In the Texas Supreme Court case of In Re HEB Grocery Store Company, the Court considered whether a trial court had properly denied the defendant’s motion to conduct a physical examination of a personal injury victim.

The case arose when the plaintiff sued a grocery store for negligence, claiming he’d tripped and fallen over a metal plate in front of the grocery car corral in its parking lot, suffering injuries to his face, neck, shoulder, arm, and knee. He underwent medical care, including spinal surgeries. While the lawsuit was pending, he was also involved in an accident at a Sam’s Club. He sued the Sam’s Club, claiming that an employee had dropped a roll of artificial turf on his head, causing him to suffer head and neck injuries.

The grocery store retained as a medical expert an orthopedic surgeon. The surgeon didn’t examine the plaintiff but did provide a report with opinions about the plaintiff’s injuries, relying on a medical records review. It was his opinion that the plaintiff’s spinal injuries were the result of a preexisting spinal condition and that nothing in the plaintiff’s MRI a month after the fall suggested he had an acute injury.

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Published on: April 10, 2016

Injuries Sustained Due to Property of a Texas University

By Carabin Shaw

In The University of Texas Southwestern Medical Center v. Munoz, the plaintiff was hurt by heavy equipment on which he worked near property owned by the university. Employed by Universal Controls, Inc. (UCI), he was an electrician. UCI subcontracted to retrofit an air-handling unit (a type of air conditioner in offices). UCI needed to install new computer panels and sensors. UCI had to run wiring for the system, including making decisions about where the wire would be run. Its employees were responsible to do the work. The university didn’t supply materials, but it owned the complex, including the towers to which air conditioning would be supplied.

The second tower was a 14-story building. The unit at issue was a pulley-driven motor system. Although it was supposed to have a safety cover, it was missing. The plaintiff started working on the unit in October and worked there for seven or eight days without a problem. He noticed the missing safety cover before the date of his injury, October 9.

On that day, he saw that UCI employees were there, but no university employees were there. He noticed that another employee had left wire in the walkway near an uncovered spinning wheel and realized it was dangerous. However, he simply walked around the wire instead of tying it on multiple occasions. One time, his leg got caught in the wire, which was entangled in the spinning wheel, and he was jerked as the wire pulled by the spinning wheel lifted him and twisted his knee. His knee and back were hurt, and he had to have two surgeries, both of which were unsuccessful.

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