Texas Injury Lawyers Blog

Published on: July 13, 2016

Jones Act Claims in Texas

Seamen injured on the job are not entitled to file workers’ compensation claims. Under the federal Jones Act, they have the right to sue their employer for personal injury damages. The burden for proving that a defendant’s negligence was the legal cause of a plaintiff’s injuries is lower, however, than it is in a standard personal injury case.

In Vo v. Ho Kim Doan, a Texas court considered a case brought under the Jones Act. The plaintiff worked on board the Larry Vo when shrimp season began in 2006. On the day of the accident, shrimp nets were being pulled up when a rope got stuck in the pulley and broke, causing the turtle head to fall and strike the plaintiff. A turtle head is a device that permits a sea turtle to escape from the shrimp net. The plaintiff lost consciousness and later sued for injuries, including a permanently disfigured finger and various problems with his neck, head, and back.

The boat came to port, and the plaintiff saw a doctor. He was given medication and $500. He sued various Vo family members. Various members of the Vo family testified later that they saw the plaintiff walking normally just a few days after the return of the boat. One of them also testified someone couldn’t survive if the turtle head fell directly on him. The plaintiff’s treating physician later testified that the injuries suffered by the plaintiff were consistent with a heavy object hitting him in the back of the head.

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Published on: July 7, 2016

Wrongful Death as a Result of a Flooded River in Texas

By Carabin Shaw

In Walker v. UME, Inc., a Texas Court of Appeals considered a case in which the trial court had entered summary judgment in favor of the defendants in a wrongful death case. The case arose in 2010, when two couples, the Walkers and the Johnsons, drove to Camp Huaco Springs for a weekend of camping and river rafting. They parked in two spots that they were assigned. On Saturday, they went on a canoe trip on the river and toured caverns. They went back to the campsite and went to bed in their RV campers. It was not raining at that time.

The couples hadn’t realized that there was a forecast of heavy rain. Cynthia Walker woke at around 6:00 a.m. There was thunder and lightning, and Terry Johnson (Cynthia’s brother) was screaming that they needed to leave. She realized that the river had risen overnight. The campers were floating. The two couples were swept down the river in the flood. Norman Walker died in the flood. His wife and the Johnsons were rescued but required medical care.

Cynthia Walker and others filed a lawsuit for premises liability and negligence against UME, Inc., which was doing business as Camp Huaco Springs, and WWGAF, which was doing business as Rockin ‘R River Rides and the Rivers brothers. The plaintiffs claimed WWGAF was a joint enterprise with UME and that it was the alter ego of the Rivers brothers. They also claimed that the defendants were aware that floods were likely at the campground, and they should have provided storm warnings and planned for flood awareness. They argued that the defendants should have used sirens to warn them and hired someone to evacuate guests and educate them about risks.

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Published on: July 7, 2016

Negligent Servicing Claim in Texas

By Carabin Shaw

In Iacono v. Stanley Black & Decker, a Texas product liability plaintiff appealed from a summary judgment motion brought by the defendant manufacturer. The case arose from injuries sustained in connection with the defendants’ automatic sliding glass doors at a hotel. The doors operate by using a controller. Three sensors located above and on each side of the door detect motion in order for the doors to open. A threshold sensor is located in the frame above the door. The latest date of installation of the doors in this case was early 1995. The hotel’s safety assurance manager testified that the hotel performed the service for the doors once they were installed, and they had been serviced twice since 1995, with replacement of certain parts.

The plaintiff went to a wedding at the hotel in 2013. As she came out with her walker, the automatic door closed on her. She fell and was injured. She sued the manufacturer on the grounds of negligence, product liability, breach of warranty, and gross negligence. The manufacturer claimed that the plaintiff’s suit was barred by the statute of limitations and the statute of repose, and it moved for partial summary judgment.

The plaintiff filed an amended complaint and summary judgment response. She argued that her negligence claims were based on the manufacturer’s acts and omissions in service call years, so they weren’t barred by the statute of repose. She also claimed her negligence cause of action wasn’t barred by the statute of limitations. However, the trial court granted the partial summary judgment motion. The manufacturer then filed a final summary judgment motion, arguing that all that was left were product liability claims based on the motion sensors, which were manufactured by a separate company, and that since it was a non-manufacturing seller, it could not be liable. This motion also was granted.

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Published on: July 7, 2016

Texas Bicycle Accident Caused by a Dog

By Carabin Shaw

In Ochoa-Cronfel v. Murray, a Texas appellate court considered a personal injury case in which the plaintiff was hurt after the defendant’s dog ran into his bicycle. The case arose when the plaintiff was biking in his neighborhood. The defendant was walking his dog and put the dog’s leash under his foot while he scooped up the dog’s waste. The dog broke free and ran into the front tire of the plaintiff’s bike. The plaintiff was thrown off the bike and hurt his arm. He sued the defendant for damages.

The trial lasted three days, after which the jury found that both the plaintiff and the defendant were negligent. They allocated 55% responsibility to the defendant and 45% to the plaintiff. The judge entered judgment on the verdict and awarded the plaintiff $10,089.75, which was 55% of the damages assessed by the jury.

The plaintiff appealed, arguing that the evidence was insufficient to support the jury’s finding that his negligence was a legal cause of the injury and that the evidence was not sufficient to support the amount awarded for each element of the damages. The judge had ordered the plaintiff to pay $5,000 in sanctions, and the plaintiff argued this was an abuse of discretion.

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Published on: June 12, 2016

Statute of Limitations and Service of Process in Texas Personal Injury Cases

By Carabin Shaw

In Shaw v. Lynch, a police sergeant alleged that he’d responded to a report that the defendant was recklessly driving an ATV through the neighborhood. He came to the scene, and then the defendant gunned the engine of the ATV and purposefully drove the ATV over the police sergeant. The police sergeant claimed this caused him severe leg injuries and other injuries, and he sued the ATV driver.

The ATV driver denied the allegations in the complaint and moved for summary judgment. He argued that the plaintiff hadn’t actually served him with the complaint until after the two-year statute of limitations that applied to personal injury lawsuits had expired. He argued that there was no proof the plaintiff showed due diligence in serving him, and he had instead delayed two months. In addition to attaching proofs of service and citation, the defendant also attached a judgment that was entered against him in the related criminal action.

The plaintiff argued that the district clerk had caused the delay and that he’d been duly diligent. His attorney submitted an affidavit that he’d expected service on the defendant within a week or two, but a month passed before a return of service or answer was filed, and he’d had to straighten things out with the process server. The process server had also submitted an affidavit noting that it accepted assignments throughout the state and in this case had been unsuccessful in subcontracting the particular assignment.

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Published on: June 12, 2016

Tractor-Trailer Accident in Texas

By Carabin Shaw

In CMH Set and Finish, Inc. v. Taylor, a defendant appealed a Texas court’s judgment in favor of the plaintiff on personal injury and property damage claims. The defendant was a parent corporation of multiple entities, one of which manufactured cabinets. It owned a warehouse where lumber was cut to match certain manufacturing specifications, and this lumber was towed to plants.

In 2010, the company asked one of its truck drivers to take a trailer of lumber from a warehouse to a manufacturing facility. The driver used a flashlight to look at her assigned truck and trailer, and then she left for the plant. Two hours into the drive, two of the wheel-and-tire assemblies (each about 200 pounds) slid from the left side of the trailer’s rear axle and crashed into the plaintiff’s pickup truck.

The plaintiff sued the company and the driver, claiming their negligence was the cause of the accident. He also sued his insurer for benefits under his uninsured/underinsured motorist coverage. He filed in Grayson County and claimed that this venue was appropriate under the Texas Insurance Code. The company and driver filed motions to transfer the case to another venue on the grounds that it should be brought in Collin County, where the accident took place. The trial court denied their motions.

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Published on: June 12, 2016

Statute of Limitations in Texas Minor’s Wrongful Death

By Carabin Shaw

In Durham v. Children’s Medical Center of Dallas, a Texas appellate court considered whether the Texas Constitution’s Open Courts Clause stopped the statute of limitations from running in a deceased 12-year-old’s survival and wrongful death claims against her health care providers.

The case arose from the medical care of the decedent, a 12-year-old girl born in 1993. In 2006, she was seriously hurt in Hawaii. Among other things, the Hawaii doctors found that she had a dilation of the ascending aorta that was not trauma-related. They recommended she follow up with a Texas cardiologist.

She was transferred to the Children’s Medical Center of Dallas with the help of her general pediatrician. However, the pediatrician didn’t see her after her transfer or before she died. She was treated by a Dr. Rupp and a nurse practitioner, and then she was discharged on the same day and told to come back for follow-up orthopedic surgery. That day, she was evaluated by Dr. Copley and then operated on. She stayed at the Children’s Medical Center for a few weeks, receiving care also from Dr. Holland and Dr. Kines, and then she was transferred again to another hospital, Scottish Rite. Two years later, at age 15, she became ill and died of aortic rupture.

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Published on: June 12, 2016

Texas Employer Liability for Temp Workers

By Carabin Shaw

In Tractor Supply Co. of Texas, LP v. McGowan, the plaintiff sued a tractor supply distribution company and related parties for personal injuries. The case arose when a temporary staffing company assigned the plaintiff to work in the tractor supply distribution center. Employees of the center trained, supervised, and instructed him on his job duties.

The plaintiff was working as a picker on the date of the accident. Another employee was loading a pallet and pushed another pallet loaded with dog food off the rack. This landed on the plaintiff, causing serious injuries.

The plaintiff prevailed at trial. The defendant tractor supply distribution company appealed, arguing that the court had made a mistake in depriving it of the exclusive remedy defense provided by the Texas Workers’ Compensation Act.

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Published on: June 12, 2016

Texas School District Liability for Child’s Fall From School Bus

By Carabin Shaw

In Austin Independent School District v. Idolinda Salinas, a mother sued individually, as a next friend of her son, for injuries suffered by her son when he opened a back exit door and leaped from a moving school bus.

The son was a child with a disability going home on a District school bus. The bus passed his stop, so the son asked that the driver pull over to let him out, but the driver didn’t. The son tried to climb out a window, and when that didn’t work, he went to the back of the bus.

He stood at the back of the bus for a while and then opened a handle on the back door, which triggered a buzzer to alert the driver. The door opened, and the boy jumped out and suffered injuries. The bus driver only pulled over when she saw the boy on the ground.

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Published on: June 12, 2016

Texas Property Owner’s Responsibility to the Traveling Public

By Carabin Shaw

In Hoke v. The Campbell Group, LLC, the plaintiff appealed the granting of summary judgment to defendants The Campbell Group, LLC and Crown Pine Timber 1, L.P. in a premises liability lawsuit. The case arose when the plaintiff’s car crashed into a logging truck while they were both traveling on Highway 96.

The plaintiff was in the right lane, and the logging truck was in the left. The truck tried to turn onto a private logging road that was owned and managed by the defendants. It turned in front of the plaintiff and hit the brakes, thereby stopping in the road. The plaintiff hit the back of the truck and suffered injuries.

She sued, alleging that (1) the defendants failed to use adequate signs to warn the public of any unusual commercial activity, (2) the defendants failed to inspect the site for possible hazards that would interfere with those traveling through the area, (3) the defendants failed to use a safe worksite plan to reduce hazards to the public, and (4) the defendants failed to provide a safe entrance for logging trucks trying to get onto their property. The petition didn’t reference negligence per se, negligent activity, or any statute.

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