Premises Liability

Published on: February 17, 2016

Liability of a Texas Property Owner to an Independent Contractor’s Employee

In Oiltanking Houston, LP v. Delgado, an employee of an independent contractor hired to work on a pipe by Oiltanking died in an explosion. He was welding a flange on a 24-inch pipe used to transport crude oil. Hydrocarbon fumes ignited, and an explosion occurred, killing the employee and injuring two others.

The employee’s family sued Oiltanking, the owner of the premises and the hirer of the independent contractor, for wrongful death. The victims also sued for personal injuries.

At trial, testimony was provided about the procedures used, the aspects of the process that Oiltanking controlled versus the aspects controlled by the independent contractor, and the events that led up to the explosion. Under Chapter 33 of the Civil Practice and Remedies Code, Oiltanking designated the independent contractor as the responsible third party. However, the judge struck the designation when the evidence closed. Due to this, the jury was asked whether Oiltanking’s negligence was the legal cause of the explosion.

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Published on: January 28, 2016

Trip and Fall Case in Texas

By Carabin Shaw

In Lee v. K&N Management, Inc., the plaintiff sued a store and barbecue after tripping on ground cover near the store entrance. Before going to the store to pick up dessert, she’d been eating dinner with her mother and brother, and she drank a single margarita. At the store, her mother pulled the car up to the sidewalk instead of parking, and the woman got out of the car, wearing flip flops.

After leaving the car and stepping forward, the plaintiff slipped on ground cover, which she later claimed had grown out of the flowerbed and onto the sidewalk. A store employee who was also a friend of the family later spotted her fall from 25 feet away. After the fall, he saw that plants had grown 10 inches out of the flowerbed and onto the sidewalk. The plaintiff suffered a fractured ankle, which necessitated two surgeries.

The plaintiff sued under theories of negligence and premises liability. The store moved for summary judgment. It argued that the overgrowth wasn’t dangerous as a matter of law under premises liability law, that the store neither knew nor should have known of the defect, and that there wasn’t evidence of either of these elements. The plaintiff argued that it was reasonable to infer that the plant grew slowly in growing over the edge of the flowerbed, which raised a factual issue about whether the store should have known about the defect. She didn’t address the argument that a plant overgrowth was not dangerous as a matter of law.

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Published on: January 28, 2016

Liability for Falling Objects in a Texas Big Box Store

By Carabin Shaw

In PNS Stores, Inc. v. Munguia, a store appealed from a judgment awarding a plaintiff $1,048,500 in damages in his premises liability case. Two bottles of deck wash fell from a shelf five feet high and hit the plaintiff on the head when he and his son went to the defendant’s store in Pasadena to buy a trashcan. Before being hit, he saw one or two 32-ounce bottles falling, and he witnessed one or two more bottles fall from a shelf. No warning cones or signs had been placed in the aisle.

As he approached the bottles, the plaintiff saw a store employee coming from the other side of the aisle where he was stacking merchandise. The plaintiff helped the store employee pick up the fallen bottles, and he was standing up when two bottles fell and hit him on the head. The store employee later stated he’d knocked the bottles off the shelf, and they hit the plaintiff.

The plaintiff was dazed. He spoke to the manager. The incident report included the store employee’s statement. The report also noted that the plaintiff’s ear was red due to the force of the impact. When he went home, the plaintiff was nauseated and weak, and he sought medical attention. He was advised by a medical clinic to go to the ER for evaluation of head trauma, but he went back home instead.

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Published on: January 28, 2016

Does a Prior Property Owner Have Liability for a Dangerous Condition in Texas?

By Carabin Shaw

In Occidental Chemical Corporation v. Jenkins, the Texas Supreme Court considered a premises liability case in which the property’s dangerous condition was created by an previous owner. The case arose in 2006 when a man was injured while using a component to add acid to a large tank at a chemical plant. The plant produced triethylene glycol (“TEG”). This needed to be kept at a particular acidity.

The acid-addition device had multiple components. In 1992, it was designed and put on the tank by Occidental Chemical Corporation, and it was believed to be a safer way to add acid to regulate the pH. It was used for six years without a problem. In 1998, the plan was sold to Equistar Chemicals, the plaintiff’s employer. Many years later, the plaintiff was injured.

His employer asked the plaintiff to add acid to the tank for the first time.. He looked at the operating instructors and added the acid. Later, he was asked to adjust the pH again. However, the acid from the morning remained in the system under pressure. When he opened the first valve, acid flew into his eyes.

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Published on: December 10, 2015

Slip and Fall on a Texas College Campus

By Carabin Shaw

In Texas State Technical College v. Washington, the plaintiff claimed that she slipped and fell in water on the Texas State Technical College campus after a water line broke the building’s ceiling and flooded the floor. The college is a governmental unit. She sued the college for personal injuries suffered in the fall. The college filed a plea to the jurisdiction, arguing among other things that she failed to provide evidence it knew or should have known about the water on the floor, and that she failed to establish a waiver of the college’s immunity. The plea to the jurisdiction was denied.

The college appealed. In general, the Texas Tort Claims Act waives governmental immunity in a slip and fall case when the governmental entity would be liable to the claimant if it were a private person in Texas. The issue in the appeal was whether there was evidence of the college’s liability that invoked a waiver of governmental immunity.

The appellate court explained that in Texas slip and fall cases, plaintiffs must show defendants have actual or constructive knowledge of dangerous conditions in order to recover damages. The dangerous condition in this case was a slippery substance on the floor. In order to establish the actual or constructive knowledge requirement, the plaintiff needs to prove: (1) the defendant put the substance on the floor; (2) the defendant actually knew the substance was on the floor; or (3) more likely than not, the condition existed long enough to give the defendant a reasonable opportunity to discover the problem.

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Published on: October 1, 2015

Bicycle Accident on Public Property in Texas

By Carabin Shaw

In City of San Antonio v. Peralta, the plaintiff sued the city and the San Antonio River Authority after he suffered injuries in a bicycle accident on a river walk. The plaintiff was riding his bike to work, and at around 6 a.m., the bike crashed into sewer drainage. The metal plate covering the sewer had been removed. He was thrown over the bike and injured. He alleged that the negligence and gross negligence of the city and the River Authority were proximate causes of his injuries.

The plaintiff argued that their immunity was waived under the provisions related to special defects and premises defects in the Texas Tort Claims Act. The defendants argued in separate pleas to the jurisdiction that under the recreational use statute, they owed to the plaintiff only the limited duty owed to a trespasser. Specifically, they claimed there wasn’t any evidence they knew the metal plate was missing prior to the accident. They also argued the plaintiff had failed to show they were grossly negligent. Their pleas were denied, and they appealed.

The appellate court explained that governmental immunity protects governmental entities from lawsuits for monetary damages except in specific circumstances under the Texas Tort Claims Act (TTCA). Under the TTCA, a governmental entity can be liable for personal injuries based on a premises defect if the governmental unit would be liable to the plaintiff if it were a private person.

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Published on: September 21, 2015

Texas City Sued Due to Police Officer Use of Patrol Car

By Carabin Shaw

In City of Socorro v. Hernandez, a Texas appellate court considered a case in which the plaintiffs were involved in a car crash. Their car was rendered inoperable, and the electrical system died in the street. The hazard lights weren’t working. The police responded. The officer didn’t park his car behind the stalled car but instead parked on a side street, activating his overhead flashing lights. The officer ordered the two to push the stalled vehicle out of the road. A woman driving towards the accident was distracted by the police car’s lights and crashed into the police officer and the plaintiffs.

The plaintiffs sued on the grounds that their injuries and damages were proximately caused by the city’s negligence in failing to use warning lights in a way that would have warned other motorists about the dangerous condition in the road, placing the car in a side street and thereby distracting motorists from the dangerous condition, failing to take reasonable steps to make the road safe, and directing the plaintiff to push the car out of the road in spite of its inoperable condition.

The City filed a plea to the jurisdiction, which was denied by the trial court. The City appealed the denial. The court reviewed whether the allegations established that the city’s use of the police car proximately caused the injuries, whether the injuries were proximately caused by the use of the disabled car, and whether the dangerous condition created by the disabled car was a special defect.

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Published on: September 21, 2015

Texas Slip and Fall in a Hospital

By Carabin Shaw

In Reyes v. Memorial Hermann Health, a plaintiff appealed from the dismissal of her personal injury claims against the defendant. The case was dismissed because she failed to timely file an expert report under section 74.351 of the Texas Medical Liability Act (TMLA).

The case arose when a woman slipped and fell on a liquid substance inside the defendant’s premises. There were no signs or other warnings about the unsafe flood conditions. She also claimed that the defendant knew or should have known about the hazardous condition, that it breached its duty of care, and that the breach caused her injuries. She claimed that her injuries and damages were proximately (legally) caused by the defendant’s failure to use reasonable care. She did not state specific details about why she was on the property.

The defendant filed a motion to dismiss on the grounds that it was a health care liability claim. and she had failed to file a timely expert report. She responded that her claims weren’t health care liability claims and that she’d filed an expert report. The trial court granted the motion to dismiss.

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Published on: August 9, 2015

Can A Private Engineering Firm Have Sovereign Immunity From Personal Injury Lawsuits in Texas?

By Carabin Shaw

In Brown and Gay Engineering, Inc. v. Zuleima Olivares, the Texas Supreme Court decided an important issue related to sovereign immunity in personal injury lawsuits. The case arose when a drunk driver entered the exit ramp of Westpark Tollway and drove east in the westbound lanes for eight miles before crashing into a driver. Both of them were killed. The part of the road where they died was under the control of the Fort Bend County Toll Road Authority, a local government corporation that was created to design and build it.

The Authority had contracted with the defendant, an engineering firm, in accord with Texas Transportation Code section 431.066(b). This code section allows local governments to retain an engineer to develop a transportation system or facility. The engineering firm was responsible for providing the necessary equipment and personnel and for obtaining insurance for the project.

The mother of the victim of the drunk driving accident sued the engineering firm and others, arguing that the failure to design proper signs and other devices near the exit ramp where the drunk driver entered had legally caused the victim’s death. The Authority filed a plea to the jurisdiction, claiming governmental immunity, which was denied by the trial court. The appellate court reversed, holding the Authority had sovereign immunity based on its discretionary acts related to traffic safety devices. When the case went back to the trial court, the plaintiff nonsuited the government.

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Published on: August 9, 2015

Manufacturing Defect or Slip and Fall in Texas?

By Carabin Shaw

In some Texas personal injury cases, it is difficult to know which theory of recovery to pursue. In Pilgrim’s Pride Corporation v. Mansfield, a manufacturer appealed from a judgment in a product liability case that on the surface might have looked like a slip and fall. A jury had found that the product, which was a bag of frozen chicken, had a manufacturing defect when it was sold to a retail grocer.

While shopping at the retail grocer, a customer slipped and fell on liquid that leaked through the defective bag of chicken. The store manager helped her get up, and she stated she thought she was okay and wouldn’t need an ambulance. The manager filled out an accident report on the store form, noting that the customer had slipped on blood that came through a leak in the bag of chicken while she was pushing her grocery cart.

At trial. the store manager testified that he noticed there was a trail of liquid spots behind the plaintiff’s cart just after the accident, and that he’d inspected the bag as well. He took the bag to the meat department, noticing that the bag was open, not just torn or cut. The meat department manager and his assistant also noticed that the corner of the bag was unsealed. The manager testified there was an opening at the bag’s seam, a defective seal, which allowed the liquid to leak.

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