Premises Liability

Published on: March 16, 2015

No Constructive Notice in Texas Slip and Fall Case

In Young v. Wal-Mart Stores Texas, LLC, a plaintiff appealed the trial court’s grant of summary judgment in a slip and fall case. The case arose when the plaintiff went through the self-checkout lane to buy ice cream. While leaving, she slipped in clear liquid and hurt her knee, ankle and hip. A cashier came over and asked if she was all right and left to get paper towels. The plaintiff wasn’t sure how much water she had slipped on, but later testified it took the cashier two trips to get enough paper towels to mop it up. After falling, the plaintiff talked to employees that came up to her.

She said that none of the employees said they knew there was a water puddle on the floor before she fell. The ambulance took her to the hospital. Later, the cashier testified that she was working in the self-checkout area for half an hour before the plaintiff fell. She said that she glimpsed the accident from the corner of her eye and then saw the plaintiff on the floor. The cashier went over to help the plaintiff and saw a puddle of water six inches in diameter. She had a paper towel in her hand and wiped up the puddle with the towel. The cashier said she hadn’t seen a substance there before the fall and didn’t know how long it was there, though she didn’t think it was there long because she had been walking around in that location and would have cleaned it if she had seen it.

The plaintiff sued the store for premises liability. The store filed a motion for traditional and no-evidence summary judgment, arguing that there wasn’t any evidence it knew or should have known about the dangerous condition. The store attached the plaintiff’s deposition as evidence and the plaintiff responded with both her deposition transcript and the cashier’s. The trial court granted the motion and rendered a take-nothing judgment.

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Published on: February 21, 2015

Is A Texas Hospital Slip and Fall a Healthcare Liability Claim?

By Carabin Shaw

In East El Paso Physicians Medical Center, LLC v. Olivia Vargas, an 81-year-old plaintiff who used a walker claimed she was injured when she went to a hospital facility. As she left the building, the automatic doors closed on her walker, and she fell and suffered a shoulder injury. She sued the hospital, arguing that the hospital had failed to correct a dangerous condition, failed to warn her about the dangerous condition, and failed to set and enforce appropriate safety standards.

The hospital moved to dismiss. It argued that the claim was a health care liability claim under the Texas Medical Liability Act (“the Act”). Under the Act, the plaintiff had to submit an expert report showing causation within 120 days of filing a health care liability claim. The hospital argued the plaintiff’s failure to file an expert report required that her case be dismissed. The trial court denied the motion to dismiss. The hospital appealed.

The hospital argued that the trial court had erred in denying its motion because the plaintiff’s allegations related to state regulations controlling hospital construction. It further argued that the plaintiff had not filed an ordinary premises liability claim, but a claim based on the standards that a hospital had to meet to offer health care services in Texas. The appellate court found that this argument didn’t sufficiently distinguish between the current case and other premises liability cases to bring the plaintiff’s claim within the requirements of the Act. Continue reading →

Published on: January 26, 2015

WEDGWOOD FIRE UPDATE

By Carabin Shaw

WEDGWOOD FIRE UPDATE

It is now understood that the fire loss that occurred at Wedgwood Apartments on December 28, 2014, will go down in history as one of 20 worst high-rise fire tragedies in U.S. History.

We now also understand that the extent of the injuries and death at Wedgwood could have been avoided, if specific and somewhat relatively basic precautions would have been made, by management or the owners of Wedgwood.

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Published on: January 26, 2015

Texas Recreational Use Statute Bars Grandmother’s Claim

By Carabin Shaw

In the recent ruling in City of Diboll, Texas v. Louie Lawson, a Texas appellate court considered a case in which a Texas city claimed the recreational use statute applied to the plaintiff’s claim and that it was not grossly negligent under the statute. The case arose when a woman went to a city park to watch her granddaughter’s softball game. When leaving the park, she tripped on a four-inch hollow pipe poking up from the center of the walkway on park grounds. It would usually act as a receptacle for a pole and create a barrier that prevented cars from entering the park. However, since the pole wasn’t in place, she tripped, fell, and suffered serious injuries.

The plaintiff sued the city for a premises defect. She died for unrelated reasons, but the personal representative of her estate substituted as the plaintiff. The city filed a plea to the jurisdiction and moved for summary judgment, which was denied. Accordingly, it appealed.

On appeal, the City argued that the plaintiff had been engaged in recreation under the recreational use statute, and so the plaintiff had to plead and prove the City acted with gross negligence. It further argued that the plaintiff had not pled it was grossly negligent, and the evidence showed it was not grossly negligent. Continue reading →

Published on: December 23, 2014

Liability Exception Under Chapter 95 in Texas

By Carabin Shaw

Under Chapter 95 of the Texas Civil Practice and Remedies Code, property owners will not be liable when a contractor or a subcontractor or its employee is hurt on a property owner’s property while performing repairs or construction. A property owner under the chapter is someone who owns real property that is primarily used for commercial or business purposes. The exception is when a property owner exercises or keeps control over the manner in which the work was performed, and the property owner had actual knowledge of the danger or condition resulting in the injury. At trial, a property owner will have to show that chapter 95 applies to the case.

In Rosa v. Mestena Operating LLC, a man and his wife sued a property owner for negligence and premises liability after the man suffered an on-the-job injury. The accident happened when the man was hurt at work while performing maintenance on electrical poles for his employer, a maintenance company. A utility company had an easement on the property and contracted with a maintenance company to perform maintenance on the poles.

The defendant, Mestena Operating LLC, was an operator of oil and gas wells that had a mineral lease on the property where the electrical poles were located. There was no contractual relationship between Mestena and the man’s employer. The plaintiffs claimed that the man had contacted an energized ground wire and suffered electric shock on the job. The ground wire was linked to equipment on the mineral lease. The plaintiffs theorized that the Mestena equipment, which was about 1,400 feet from the place where the plaintiff was located, had malfunctioned, causing the ground wire to be energized. The plaintiffs argued that Mestena knew or should have known about the danger of the ground wire. Continue reading →

Published on: December 11, 2014

When Can A Nonparty to A Texas Contract Be Compelled to Arbitrate a Personal Injury Case?

By Carabin Shaw

In ENGlobal U.S. Inc. v. Gatlin, a Texas appellate court was asked to decide whether a party to a contract with an arbitration clause could compel arbitration of a personal injury claim by a nonparty to the contract under the doctrine of “direct benefits estoppel.” The case arose from Phillips 66’s ownership and operation of an oil refinery. The operator of the refinery had contracted with Clean Harbor, an industrial service contractor, to clean oil storage tanks at the refinery.

An employee of the industrial service contractor was working as a hydroblaster at the refinery. While working, the lanyard on his safety harness got caught in the walkway, resulting in his fall and back injury.

When the accident happened, ENGlobal was a contractor that performed engineering for Phillips 66. Their relationship was governed by a master service agreement that included an arbitration provision. The employee had not signed this agreement, and he sued Phillips 66, ENGLobal, and another company in order to recover damages. He alleged negligent undertaking and premises liability. Continue reading →

Published on: October 8, 2014

Negligent Security in Texas

By Carabin Shaw

In a 2011 premises liability case, two sisters appealed a summary judgment in favor of Little Caesar’s Pizza. The case arose when the sisters were in a restaurant when an armed robbery occurred. Two masked robbers came into the pizzeria, brandished their guns, and threatened the people in the restaurant. The robbers were wearing restaurant uniforms. A robber shot one of the women (Viera) when she and her sister left through the back door, and her sister (Estrada) saw the shooting.

The report showed that the robbers shot at the store managers. They ordered people to the back of the pizzeria and told the customers to run. Several customers, including the sisters, ran out of the open back door. Estrada left before Viera and when she looked back, she saw a gunman shoot three times at her sister. When the police investigated, they found the shooting was an inside job conducted with the help of a restaurant worker who left the back door open.

The sisters sued for negligent security. They claimed that the pizzeria failed to offer adequate security and that it was foreseeable an assault would happen on the property. They sought personal injury damages based on physical injuries, as well as mental anguish and PTSD. The pizzeria moved for summary judgment, arguing that the shooting happened outside the restaurant, there was no duty owed to the sisters, no evidence of causation, no evidence of foreseeability, and alternatively that the claims were barred by the statute of limitations.

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Published on: September 16, 2014

Texas Ranch Operator Liability for Trespassers’ Fatal Truck Crash

By Carabin Shaw

A family from Mexico — a mother, father, and child — hired a “coyote” to transport them into the United States, to either New Orleans or Houston.

He picked them up in a truck at a safe house in Texas, along with another passenger. They drove to the private Jones Ranch, arriving before dawn. The coyote ordered his passengers to move from the back seat to the floor of the truck. Somehow he had keys to the locked gate of the ranch and drove onto the property.

A ranch employee spotted and stopped the strange truck, even in the early morning darkness, and asked the driver what he was doing on the ranch. The employee observed only the driver and a front seat passenger and also wrote down the license plate number of the truck.

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Published on: August 25, 2014

Worker Injured on Former’s Employer’s Premises

By Carabin Shaw

A recent appellate case arose when a plaintiff was seriously burned after falling into a pool of hot water at the defendant’s chemical plant. The plant had multiple manufacturing units, but the facility was owned by DuPont. The unit where the plaintiff was injured was a formaldehyde production unit. Steam was a key part of the chemical production, and both steam and formaldehyde were supplied by D.B. Western, Inc., which built a formaldehyde manufacturing plant on land adjacent to the chemical plant. Steam pipes ran through the DuPont plant, and through them ran formaldehyde and steam from the adjacent plant.

There were steam traps designed by D.B. Western that DuPont and its outside company Spirex Sarco were responsible for maintaining. In 2004, DuPont sold the formaldehyde unit to Invista, and the employees of DuPont working there, including the plaintiff, became Invista employees. Invista had a contract with the same contracting company to purchase the steam and inspect the pipeline system. The plaintiff was burned by hot condensate that was in a pool under a pipeline.

The plaintiff sued DuPont, the owner of the plant, alleging negligence in the design, construction, and maintenance of the pipeline and steam traps, as well as premises liability. With regard to premises liability, the plaintiff claimed he was an invitee of DuPont. The plaintiff’s wife alleged loss of consortium.

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Published on: July 18, 2014

One Year After Loved One is Killed at Six Flags, a Dallas Family Wants Answers

By Carabin Shaw

One year after a Dallas woman tragically fell to her death at a Six Flags amusement park in Arlington, the legal issues are far from over.

The accident occurred on the evening of July 19, 2013, when 52-year old Rosa Esparza fell 75 feet from where she had been sitting, behind her daughter and son-in-law, on one of the thrill rides. Prior to this, Esparza was allegedly upside down in her seat and holding on for “dear life” before plunging to her death from the Texas Giant ride. This was Esparza’s first visit to the Six Flags theme park.

Following the tragedy, the Arlington Police Department and Six Flags conducted an investigation into what went wrong. The ride shut down for the rest of July and August, before reopening in September after the investigation found no evidence of mechanical failure. Added to the ride were restraining bar pads that had been redesigned, seat belts, and a coaster seat at the entrance so potential riders could determine whether they would fit into the cars securely. Esparza’s family learned that the coaster seat had remained stored after the Texas Giant ride reopened in 2011 following a $10 million renovation.

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