Texas Injury Lawyers Blog

Published on: January 31, 2017

No Contributory Negligence in Texas Truck Accident Lawsuit

In Hospadales v. McCoy, the defendants appealed a judgment in a truck accident case that awarded the plaintiff damages in the amount of $292,000 for past pain and suffering, past medical expenses, and past lost earning capacity. Among other things, they argued the evidence was insufficient not only to show causation but also to support the jury’s damages award and finding that the plaintiff was not contributorily negligent.

The plaintiff worked to transport cars from one location to another location, using a 30-foot trailer pulled by a pickup. He and his wife were driving on I-45 to pick up a car when the defendant was driving an armored truck for his employer. The armored truck had data that included the speed and movements of the truck, as well as a system to record data related to the plaintiff’s operation of the vehicle.

A video from the armored truck showed the armored truck driver was driving behind the plaintiff in the same lane, then switched lanes, and went faster, trying to pass on the left of the plaintiff. The left side of the armored truck driver’s truck and trailer were directly on the white dividing line between lanes, although it didn’t cross.

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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

Future Medical Care Damages in Texas

By Carabin Shaw

In Aguirre v. Soto, the court considered whether the evidence was legally and factually sufficient to support an award of $40,000 to the plaintiff for future medical expenses after a car accident. The case arose when the defendant, driving a pickup, ran a stop sign and crashed into a car driven by the plaintiff. The plaintiff didn’t get medical treatment at the scene but went to the doctor after suffering pain in his lower back, shoulders, and neck. The plaintiff sued the defendant, and the defendant agreed he was liable, so the issue at trial was damages.

At trial, pictures of damaged vehicles were introduced into evidence. The plaintiff testified he hadn’t had pain before the crash, but after the accident, his pain was eight out of 10. He went to a chiropractor, who treated him for about a month and then wrote a report saying no further treatment was necessary. However, the report showed he still had ongoing pain, and the plaintiff testified that his pain was at an eight when he stopped getting treated. He tried to get medical treatment, and an MRI showed he had a disc herniation.

A doctor prepared a report that summarized his status, stating that he might need more diagnostics and further rehabilitative care, and eventually referred him to an anesthesiologist, who recommended injections. The plaintiff tried not to undergo injections for fear of potential paralysis and was then referred to a neurosurgeon, who recommended a surgical procedure.

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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: December 14, 2016

Designating Responsible Third Parties for Workplace Injuries in Texas

By Carabin Shaw

Under Tex. Civ. Prac. & Rem. Code §§ 33.001-33.017, a defendant in a personal injury lawsuit in Texas can designate anyone who is alleged to have caused or contributed to injuries as a responsible third party.

In Re Bustamante considered whether a trial court had appropriately denied a motion for leave to designate responsible third parties. The case arose when a man in the course and scope of his employment was hurt at his workplace, the Cleo Convenience Center, when Irasma Estrada Riojas drove a vehicle into him, pinning him to a wall.

A day before the statute of limitations period ended, the man and his wife sued several defendants, including Cleo Bustamante, who owned the company that employed him. They did not sue Riojas or the employer. The employer had provided workers’ compensation, while Riojas had settled.

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Published on: December 14, 2016

Proving Past Medical Expenses in Texas Car Accident Case

By Carabin Shaw

In Liang v. Edwards, a Texas appellate court considered a car accident case in which the jury found for the plaintiff, awarding her $5,000 for her past pain and suffering and more than $20,000 for her past medical bills. The case arose when the defendant hit the plaintiff’s car. She was driving within the speed limit but admitted the plaintiff did nothing wrong, and the officer found she was at fault.

The plaintiff’s husband drove her home, and she slept for hours. She went to the ER after she woke up and had suffered a neck sprain and concussion. She followed up with her doctor, and two days later, she visited a chiropractor and a physical therapist. She received physical therapy as well as chiropractic adjustments and other therapies from the doctor 2-3 times a week for 4-6 weeks.

Once she was finished with that, she went to a pain management specialist, who gave her an epidural steroid injection for her pain and later gave her a second one. She testified that she suffered through occasional pain after that and continued with the therapy because she was experiencing pain.

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Published on: December 14, 2016

Failure to Diagnose Cancer in Texas

By Carabin Shaw

In Knox v. Rana, a Texas appellate court considered the wrongful death claim of a woman’s children against the cancer center where she’d been treated. The woman had survived endometrial and breast cancers and was getting radiation treatment from a defendant doctor for a basal cell carcinoma lesion on her nose. The doctor ordered a PET scan, based on the woman’s prior history of cancer. The scan showed she had a mass that seemed like metastatic disease in her pelvis. However, the doctor never told her this or ordered her to obtain treatment.

Later, the defendants would provide evidence that the mother was informed about the worrisome nature of the mass in her pelvis and was asked to get a follow-up in three months. She didn’t undergo the follow-up and in 2012 was diagnosed with metastatic cancer. She passed away in 2013 at age 76, due to her metastatic cancer.

The woman’s children filed a lawsuit against the doctor and cancer center. The defendants filed a motion for summary judgment. The lower court granted the motion. The children appealed. The appellate court explained that the Texas Supreme Court had held that the Wrongful Death Act authorizes recovery for injuries that actually cause death, rather than those that cause less-than-even odds of avoiding death.

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