Texas Injury Lawyers Blog

Published on: June 8, 2017

Prior Knowledge of a Dangerous Property Condition in Texas

In a recent Texas appellate decision, an appellate court considered a premises liability lawsuit in which a former tenant challenged a summary judgment dismissal. The case arose when the plaintiff leased a house in Texas from the defendants under a written lease. He claimed that in January 2013, he tripped and fell on the driveway because of broken and loose rocks in the driveway. He alleged he broke his back due to the fall.

He sued the property owners on the basis of negligence and asked for punitive damages based on gross negligence. The property owners filed for summary judgment, arguing that they didn’t owe a duty to their lessee unless they had written notice that a repair was needed, as required by the lease, and they didn’t owe a duty to warn the plaintiff because the disrepair in the driveway was open and obvious, or else the plaintiff knew about its condition for at least six months before his fall. Later, in a supplemental motion, they also claimed that the driveway wasn’t in the property description in their deed to the property, there was no evidence they controlled the driveway, and the plaintiff had failed to put forth evidence that the driveway presented an unreasonable risk of injury.

The plaintiff responded, stating that he knew of the defect but didn’t know of the specific stone that came loose at the end of the driveway. He also filed an untimely amended response. Summary judgment was granted.

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Published on: June 8, 2017

When is a Trucking Company a “Motor Carrier” in Texas?

By Carabin Shaw

In a 2016 Texas truck accident case, the plaintiffs sued an excavating company. The accident caused a pileup, and when the sheriff investigated, it found that it was caused by the driver of an 18-wheeler. The trailer being pulled had the excavating company’s name and motor carrier number on it. The 18-wheeler hit a cement truck on I-30. Both moved toward the center guard lane, with the cement truck crossing over the guardrail and rolling, hitting vehicles in its path, including the plaintiff’s car. The front of the 18-wheeler also crossed the guardrail and wound up on the other side.

The plaintiffs intervened in a lawsuit filed by many other plaintiffs, including the driver of the cement truck. The claim of all of these accident victims was that the tractor-trailer driver’s negligence was the cause of the collision and that his employer under common law and the FMCSA regulations, as well as the Texas transportation code, was the excavating company, which was vicariously liable. The plaintiffs also argued the driver and truck driver were grossly negligent and sued the company for negligent supervision, negligent entrustment, negligent retention, and negligent hiring.

A jury trial was resolved in the plaintiff’s favor, such that the company was determined to be vicariously liable for its driver’s negligence. Judgment was rendered against the employer and the driver jointly and severally, and they were ordered to pay the plaintiffs a little less than $1 million.

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Published on: June 8, 2017

When is a Warning Adequate in a Texas Slip and Fall?

By Carabin Shaw

In a recent Texas slip and fall case, the plaintiff walked around a wet floor warning sign that was situated in the hall outside the bathroom in the defendant’s convenience store. The restrooms were at the back of the store and could be accessed through an open entry that led to a small hall.

Surveillance video showed that there was a yellow warning sign that said “wet floor” located in the entry. When the plaintiff turned the corner and walked into the hall to go to the restroom, he walked past the sign. He also walked past an employee who was wet-mopping the floor. While he was inside the restroom, the employee wet-mopped the entrance where the sign was located. She moved the sign while mopping, mopped the spot where the warning sign was, and then returned the sign to the original place.

Two minutes after going into the restroom, the plaintiff left the bathroom and slipped and fell on the wet hallway floor a few feet from the location of the sign. He was hurt and sued the defendants for personal injuries based on premises liability. As a customer, the plaintiff was considered an invitee to the store under Texas law.

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Published on: June 8, 2017

Texas City’s Failure to Address a Safety Hazard

By Carabin Shaw

In a recent Texas appellate case, four people sued the City of Austin under the Texas Tort Claims Act and the recreational use statute. The case arose when a man driving under the influence drove off the street, jumped a curb, and drove onto a hiking and biking trail next to the road. The car and a traffic warning sign struck and killed two people who were walking, a man and a woman. The man died due to his injuries. The drunk driver was sentenced to five years in prison for aggravated assault with a deadly weapon.

The man’s survivors sued the drunk driver and the city. Against the city, they asserted claims of gross negligence, negligence, premises defect, and special defect and argued that the city had breached its duties under the recreational use statute. They claimed that the city failed to safely build the trail, knew of previous incidents when vehicles traveled over the curb and onto the trail in the same location, and failed to appropriately warn or repair the dangerous condition. They also argued that the city maintained policies that required it to repair the problem once a danger was identified and that their failure to build a barrier was a failure to carry out a ministerial action that the city’s own policies required.

The city claimed that governmental immunity barred the plaintiffs’ claims, since sovereign immunity wasn’t waived for its discretionary choices related to the design of the road and the safety features to be installed. The plaintiffs responded that there was no immunity because the failure to fix the danger on the trail was a negligent failure to implement its own policy, rather than an initial design or policy choice for which there was immunity.

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Published on: June 8, 2017

Bike Lane Accident Due to Overgrown Vegetation in Texas

By Carabin Shaw

In a Texas appellate case, two people sued Austin Energy and the City of Austin under the Texas Tort Claims Act for injuries suffered in a motor vehicle accident they claimed was due to a special defect. The two plaintiffs were riding bikes in the bike lane in the city during midday. As they came to an intersection, they came to a part of the bike lane that was partially covered by overgrown vegetation coming from a home.

The two stopped in the shade of the overgrown vegetation to drink water. Soon thereafter, a driver in a car drove across the solid white lane into the bike lane and hit the plaintiffs. They were hurt and had to go to the hospital by ambulance. The driver told the police she didn’t see the plaintiffs and didn’t know if the sun was in her face, even though the sunlight wasn’t coming from the direction she was facing.

The plaintiffs claimed that the overgrown vegetation was a special defect, and the city failed to maintain the right of way and keep it free from such obstructions. The city claimed it kept its immunity because the vegetation didn’t count as a special defect, and there was no way to amend the pleadings to establish a defect.

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Published on: June 8, 2017

Injury While Working on a Texas Telephone and Power Line Pole

By Carabin Shaw

In a recent Texas appellate decision, a plaintiff appealed a take-nothing judgment in his personal injury and premises liability claim against an electrical company. The case arose when a man was working as a telephone lineman for a subcontractor of AT&T.

The subcontractor’s work was to install a new line of telephone cable on specific utility poles. These poles had been built in the 1940s in the city’s roads, based on a franchise agreement. At the time, the defendant owned the poles, and they were jointly used by the defendant and AT&T as power and telephone lines, based on an agreement made between their predecessors.

The defendant’s primary power line was attached to every other pole. When installing a new telephone line, the plaintiff used a chain hoist attached to a pole to which the power line was attached. As he took hold of the chain hoist, he tugged it, and the power line attached to the pole touched a bolt on the top of another pole to which it was attached. There was an excessive current that blew the fuse and caused a piece of metal to impale the plaintiff’s hand.

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Published on: April 4, 2017

Expert Report in Texas Health Care Liability Claim Against a Nurse

By Carabin Shaw

In a recent interlocutory appeal in Texas, a defendant nurse appealed a trial court’s denial of her motion to dismiss a plaintiff’s health care liability claims. These claims were filed against three defendants. The plaintiff had sought treatment from a clinic and its doctor for several reasons, including painful urination. Since the doctor wasn’t available, a nurse practitioner treated her and diagnosed her with a urinary tract infection, a yeast infection, and vaginosis, based on the results of a urinalysis. The nurse prescribed medication.

Five days later, the plaintiff came back with worsened symptoms. At a pelvic exam, the nurse allegedly told students who were observing that it was gonorrhea. In her petition, the plaintiff claimed she’d questioned the nurse about this diagnosis, since she’d been in a monogamous relationship for six months and hadn’t had sex with anybody else for years before that. The nurse allegedly told her that her boyfriend probably gave her gonorrhea.

The plaintiff’s petition claimed that the gonorrhea diagnosis was mistaken, and in the petition, she pled claims for failure to disclose risks, lack of consent, intentional infliction of emotional distress, breach of confidential communications, intrusion on seclusion, public disclosure of private facts, and negligent misrepresentation. She asked the court for damages to compensate for her mental anguish and physical pain.

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Published on: April 4, 2017

Intentional Injury by a Government Employee in Texas

By Carabin Shaw

In a recent Texas appellate case, the plaintiff argued that the lower court should not have granted a county’s plea to the jurisdiction. The case arose when the Deputy Constable for the county used his Glock to shoot and injure the plaintiff.

When he applied for the job, the Deputy Constable had revealed he was medicated for mood stabilization because of a chemical imbalance. In the five years before being employed with the county, he held 21 jobs and was fired from 12. He’d been dismissed from a law enforcement academy within 4 months of attending because he’d failed minimum safety standards for traffic stops, lied, and was unable to function as a team member, among other reasons.

When he was hired, he identified the Glock as his primary weapon and the county approved his use of this firearm. Before the incident that resulted in the plaintiff’s injuries, he was involved in four other incidents, including an anger management issue as a security guard, two road rage incidents, and showing hostility toward two other law enforcement officers.

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Published on: April 4, 2017

Electrocution Work Injury in Texas

By Carabin Shaw

A recent Texas personal injury lawsuit arose when a worker who was helping a subcontractor lay a cement parking lot around a sales office was electrocuted. The property owner, a supply company, had hired a general contractor and assigned one of its employees to coordinate with the subcontractor and monitor what was happening.

The worker was working at night and trying to level freshly poured concrete with a bull float. The bull float’s handle was 16 inches long. As the worker pulled the float back toward himself, it touched an electrical line that was over or next to the lot where the work was being completed. Later in a deposition, the worker testified he knew about the line’s presence because he’d seen it before.

He also testified that people from the supply company were not only present at the scene but also told him and his coworkers what to do. He assumed that they were from the supply company based on coworker comments and admitted he didn’t know who they were. He admitted that nobody told him to use the float, but said that the people told him to pour the cement.

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Published on: April 4, 2017

Motorcyclist Killed by Texas Highway Sign

By Carabin Shaw

In a recent Texas appellate case, a motorcyclist was traveling up United States Highway 54. As he exited 54, he hit a Texas Department of Transportation sign that had fallen into the roadway and was killed. The sign sat off the roadway and was secured to two posts that went down to a concrete base. There were fuse plates that were designed to come off under enough force, like a vehicle hitting the sign. The purpose of these is to reduce the risk of injury. However, it also made the sign particularly susceptible to being damaged by wind and other forces.

A motorist had hit the prior sign, so a new sign was put up at the exit where the motorcyclist was killed. Six months later, high winds affected a number of signs on the highway. The Department of Transportation crew saw that the sign wasn’t level, and they took a look. Two of the fuse plates had broken, so they replaced the fuse plates. They tightened the bolts by hand, although for certain signs they used a torque wrench.

In this case, a 911 operator got a call that a street sign was in the lane of traffic on the exit ramp. The sign was secured by only one post, and there were winds blowing at 40-60 mph. Other calls were also made to 911, and somebody even warned that somebody would be killed by running into the sign.

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