Wrongful Death

Published on: July 8, 2019

Texas Supreme Court Considers Property Owner’s Liability to Independent Contractors

The state’s high court recently released an opinion in a Texas wrongful death case involving the death of an employee that worked for an independent contractor that was hired by the defendant property owner. The issue in the case was whether the property owner could be held liable for the employee’s death based on a theory of negligently hiring.

According to the court’s opinion, the property owner was an energy company that had hired a drilling company as a contractor to drill a well. A drilling company employee died while working on the well. He was working on the well when a rope caught on a pulley, causing a pipe to hit the employee in the head, which eventually resulted in his death. The employee’s family sued the energy company, alleging that the energy company negligently hired, retained, and supervised the drilling company.

A property owner can be held liable for a claim that harms an independent contractor or the contractor’s employees if the property owner controlled the work and knew or should have known of the risk or danger that caused the contractor harm. Under Chapter 95 of the Texas Civil Practice and Remedies Code, a property owner can be held liable for an injury to a contractor that is repairing, renovating, constructing, or modifying property, but only if the property owner controlled the work and “had actual knowledge of the danger or condition.”

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Published on: July 8, 2019

Texas Supreme Court Determines Off-Duty Officer Was Immune from Liability in Recent Wrongful Death Lawsuit

By Carabin Shaw

In May 2019, the state’s high court issued a written opinion in a Texas wrongful death case discussing whether an off-duty officer could be held individually liable after he shot and killed a suspect while attempting an arrest outside the officer’s jurisdiction. Under the state’s election-of-remedies provision of the Texas Tort Claims Act, the court determined that the officer could not be held liable in his individual capacity.

Under the election-of-remedies provision of the Texas Tort Claims Act, government employees cannot be held individually liable for injuries they cause to others under certain circumstances. Specifically, an injured victim cannot hold a government employee personally liable when: 1.) the employee’s actions were conducted within the scope of their employment, and 2.) the case could have been brought against the government.

According to the court’s recitation of the facts, the plaintiffs’ son was shot and killed by an off-duty officer (the defendant) during an attempted arrest that occurred outside the defendant’s jurisdiction. The plaintiffs filed a wrongful death lawsuit against the officer in his individual capacity.

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Published on: April 29, 2019

Texas Supreme Court Dismisses Claim after Pregnant Woman Falls in Dam

By Carabin Shaw

The Texas Supreme Court recently issued an opinion in a Texas personal injury case involving the death of a 19-year-old pregnant woman who fell into a dam near Fort Worth. According to the court’s opinion, the woman tried to walk across the dam when she slipped and fell into the river and drowned. She was five months pregnant at the time. The woman’s parents sued the local water district, which built and maintained the dam, alleging that it was at fault for their daughter’s death. The water district, which is considered a governmental entity, claimed that it was immune from suit for that reason. The plaintiffs claimed that the district was not immune from suit because the claim fell under a specified waiver of immunity.

Governmental immunity generally protects political subdivisions of the state, including cities and counties. However, there are exceptions to the general rule of immunity. For example, the state is not immune for claims involving “use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.” Under section 101.056 of the Texas Tort Claims Act, there is an exception to waivers of immunity if the claim is based on:

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or

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Published on: August 23, 2018

Texas Supreme Court Allows Future Medical Expenses Award After Plaintiff’s Death

By Carabin Shaw

Unfortunately, Texas personal injury cases can take years to resolve, in some instances, and plaintiffs may not live to see the final disposition of their case. This can implicate a number of procedural rules and requirements in order to ensure that the right type of case is being brought and the proper damages are being sought. In a recent case before the Texas Supreme Court, the court explained why an award for future medical expenses should stand, although the plaintiff had died by the time the case reached the court.The plaintiff was 37 weeks pregnant and receiving prenatal care from an ob/gyn when she came to the hospital with severe abdominal pain. She had seen her ob/gyn that morning for a routine visit and everything appeared normal. When she went to the hospital, the doctors discovered that the fetus had died due to placental abruption, and that the woman had developed disseminated intravascular coagulation (DIC), a blood-clotting disorder.

The doctors ordered a blood-product replacement plan to counter her DIC. They decided that vaginal delivery was necessary and hoped that the DIC would correct itself after delivery.

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Published on: February 13, 2018

Liability After Texas Freshman Killed on Campus?

By Carabin Shaw

A recent Texas wrongful death decision arose when a college freshman was shot and killed on a university campus. He was on his way to class when he was shot and killed. On the prior evening, another shooting happened in the parking lot of the same dorm. His mother sued the university for negligence and gross negligence.

She claimed that the university’s employees, representatives, and agents failed to use reasonable care in warning parents and students about the risk of harm on campus and in providing adequate security and taking steps to stop criminal activity.

The university filed a plea to the jurisdiction and a motion to dismiss the mother’s claims on the basis of governmental immunity. The mother argued that immunity was waived by the Texas Tort Claims Act, since the death was caused by a condition or use of real property or personal property. The trial court denied the motion and allowed the plaintiff a month to amend her complaint. The university filed an interlocutory appeal, arguing that her petition affirmatively negated jurisdiction.

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Published on: February 13, 2018

Admissibility of Out-of-Court Experiments in Texas Car Accident Case

By Carabin Shaw

In a recent Texas appellate decision, a woman challenged the lower court’s judgment in a lawsuit for negligence and wrongful death. Among other things, she claimed the lower court had made a mistake in admitting a video recording of an experiment that had happened outside of court.

The case arose when the plaintiffs claimed that a minivan had crashed into a sedan driven by the defendant at an intersection controlled by a traffic signal. The minivan passenger was the mother of the plaintiffs, and she suffered fatal injuries, dying after the accident. The plaintiffs claimed the defendant had not used ordinary care in going into the intersection without paying attention to the red traffic light, not controlling her car’s speed, and not looking out carefully or applying her brakes on time. They claimed her failure to use ordinary care was the legal cause of their mother’s death and asked for loss of companionship and mental anguish as their damages, in addition to more concrete damages.

The defendant denied the claim and said the accident was caused by the driver of the car in which the decedent was riding. The defendant lived on that street and was familiar with the signal at issue. She claimed the light was green as she headed toward the intersection, and there were no other cars on the road in front of her, although there were stopped cars on the intersecting street. There was some discrepancy in her claims about stopped cars.

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Published on: December 20, 2017

Negligent Hiring in Texas Wrongful Death Lawsuit

By Carabin Shaw

A recent Texas wrongful death decision arose after a car salesman shot and killed his sales manager. One autumn, there was a confrontational sales meeting, and the salesman went into his manager’s office, took out a gun, and shot him. The sales manager died a few days later, and the salesman pled guilty to first-degree murder and went to prison on a life sentence. The manager’s family sued the salesman, as well as dealership-related entities and an employment screening company.

Back when the salesman applied at the dealership where he worked, the dealership used the services of a pre-employment background screening company to screen prospective employees. The company would interview a job applicant, perform a drug test and a criminal records check, and provide the results of the screening to the dealership. In this case, the screening company reported that there were no criminal records, and the drug test was negative. It also stated there was an inconsistency about why he left his earlier job.

The salesman was hired, and then he left on good terms and moved elsewhere. He worked at other car dealerships and then came back to Texas and applied for a sales job. He went through another screening and was hired, but he quit. He again applied with the dealership for a sales job and went through another screening.

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Published on: October 28, 2017

Texas Wrongful Death Case Against Emergency Personnel Fails

By Carabin Shaw

In a recent Texas wrongful death action, the appellate court considered the trial court’s denial of a city’s plea to the jurisdiction. The case arose after the husband and the adult kids of the decedent sued the city under the Texas Tort Claims Act. They claimed that the fire department personnel who responded to their 911 call for a lift and assist for the decedent failed to provide integral safety features that should have been contained in the emergency medical services vehicle to carry out a lift and assist, and the failure had legally caused her injury and death.

They claimed that they’d called 911, asking for help at home because the decedent had fallen out of bed and they couldn’t lift her back into bed. Four or five staff from the fire station came in an emergency medical services vehicle. The staff had been called to give lift and assist help to the decedent in prior situations and knew about her condition.

When they arrived, the decedent’s legs were under the bed. The staff stood behind her, put his arms under her arms, and yanked upwards. Because of this, her leg hit the bed frame, and she suffered a laceration under the knee. The family claimed they failed to put her body in a proper position to use a safety device like a portable lift board or sling. The laceration caused substantial blood loss, and the family claimed that the emergency personnel wrapped the wound but didn’t stop the bleeding. She went to the hospital, suffered a heart attack, and died.

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Published on: September 27, 2017

Texas Wrongful Death Arising out of Train and Parade Float Collision

By Carabin Shaw

In a recent Texas appellate case, the plaintiff appealed in a lawsuit arising out of the death of four veterans in a flatbed trailer during a parade. A train hit their parade float and killed them.

In 2012, two tractor-trailers pulled flatbed trailers that were floats in the parade. Twelve vets and their wives were sitting on top of the trailers. One vet would later testify that as the first tractor-trailer went over the tracks, he heard the railroad crossing bell. Warning lights were activated. He thought the train was stopped, but later he could see it was moving fast and would hit the second tractor-trailer.

The train was about 2,500 feet away from the crossing when the engineer on the train saw the first tractor-trailer go through the crossing. He made a remark to the conductor but didn’t slow the train. Soon afterward, when the train was about 1,200 feet away, the second trailer went through the railroad crossing. The crew beeped the train horn. An emergency brake was applied when the train was close to the crossing, but the brakes weren’t engaged until the train was about to hit the tractor-trailer at 62 mph.

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Published on: September 27, 2017

Texas Wrongful Death Arising Out of Police Officer Failure to Use Seatbelt

By Carabin Shaw

In a recent Texas wrongful death case, the plaintiffs claimed that at about 3:30 in the morning, a police officer put the decedent in the back of a patrol car. She wasn’t seatbelted in, or else she wasn’t properly seatbelted. The defendant’s car hit the patrol car in an intersection after running a red light. As a result, the decedent was thrown from the patrol car and suffered serious and ultimately fatal injuries.

The defendant admitted to officers she’d just left a bar nearby. She was taken to a hospital and determined to be drunk. The decedent’s family filed a lawsuit against the city, alleging the officer acted within the course and scope of her employment with the city. According to the plaintiffs, the officer was driving a city-owned car, negligently failed to use a seatbelt on the decedent, which allowed her to be thrown out of the patrol car, and failed to keep a lookout. The lawsuit also alleged the officer failed to slow, failed to hit the brakes appropriately, failed to take evasive action, handcuffed the decedent when she wasn’t under arrest, didn’t follow proper procedures related to seatbelts, and improperly provided police protection. The plaintiffs argued that the officer’s negligence was the legal cause of the decedent’s death, and the City was vicariously liable.

The plaintiffs claimed that the city had waived governmental immunity for a death caused by the use of tangible personal property like handcuffs and damages resulting from governmental functions like police protection. The City argued there was no subject matter jurisdiction. It argued that the officer had received a call about a suspected drunk driver and found the decedent sitting next to her car so drunk she couldn’t stand up. The officer was taking her to the Sobering Center. The drunk driver later pled guilty to intoxication manslaughter and was sentenced to eight years’ imprisonment. The city argued that it was undisputed the drunk driver caused the accident, so the city hadn’t waived its Texas Tort Claims Act immunity based on the officer’s use of the car.

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