Texas Injury Lawyers Blog

Published on: February 17, 2016

Plaintiff Uses Surgeon’s Expert Reports in Texas Medical Malpractice Case

In Christus v. Baird, a hospital appealed from a Texas trial court’s order related to expert reports in a medical malpractice case. The case arose when the plaintiff had surgery to remove a part of her thyroid gland. The surgeon didn’t remove the correct lobe but instead removed the thymus gland. She had another surgery at a different hospital to remove the left lobe.

The plaintiff sued the surgeon and his professional association, alleging that the surgeon was negligent in not removing her thyroid gland and instead removing her thymus. She served both the surgeon and association with an expert report.

The surgeon moved to designate the hospital as a responsible third party and denied his negligence. He claimed the hospital was responsible for the woman undergoing a subsequent surgery because the hospital’s cryostat wasn’t available during the surgery, there was no backup, and the hospital hadn’t told him a cryostat wouldn’t be available under after he’d started operating.

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Published on: February 17, 2016

Liability of a Texas Property Owner to an Independent Contractor’s Employee

By Carabin Shaw

In Oiltanking Houston, LP v. Delgado, an employee of an independent contractor hired to work on a pipe by Oiltanking died in an explosion. He was welding a flange on a 24-inch pipe used to transport crude oil. Hydrocarbon fumes ignited, and an explosion occurred, killing the employee and injuring two others.

The employee’s family sued Oiltanking, the owner of the premises and the hirer of the independent contractor, for wrongful death. The victims also sued for personal injuries.

At trial, testimony was provided about the procedures used, the aspects of the process that Oiltanking controlled versus the aspects controlled by the independent contractor, and the events that led up to the explosion. Under Chapter 33 of the Civil Practice and Remedies Code, Oiltanking designated the independent contractor as the responsible third party. However, the judge struck the designation when the evidence closed. Due to this, the jury was asked whether Oiltanking’s negligence was the legal cause of the explosion.

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Published on: January 28, 2016

Compelling Discovery from a Manufacturer in a Texas Product Liability Case

By Carabin Shaw

In re Michelin North America, Inc. is a recent product liability case. The case arose when a woman driving a 2013 Ford Explorer was hit by Robert Coleman’s Ford F250 pickup. The pickup crossed the center line when its left front tire failed, and it crashed into the Explorer, killing the woman. The driver of the pickup and his passengers were seriously injured.

The woman’s heir filed a wrongful death lawsuit, alleging negligence and strict product liability against Michelin and a negligence claim against the driver of the pickup. The pickup driver filed a petition to intervene in the wrongful death lawsuit against Michelin.

The tire at issue was manufactured at a Michelin plant in 2011. The pickup driver claimed the tread peeled off the left front tire, and it lost air quickly because of tread separation, resulting in the pickup driver losing control. Before filing suit, the pickup driver’s attorney asked that specified evidence be preserved. The pickup driver’s attorney made several discovery requests to Michelin, which objected and claimed trade secret privilege, among other things. The court granted the pickup driver’s motion to compel access. The order allowed videotaping, limited to an hour.

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Published on: January 28, 2016

Trip and Fall Case in Texas

By Carabin Shaw

In Lee v. K&N Management, Inc., the plaintiff sued a store and barbecue after tripping on ground cover near the store entrance. Before going to the store to pick up dessert, she’d been eating dinner with her mother and brother, and she drank a single margarita. At the store, her mother pulled the car up to the sidewalk instead of parking, and the woman got out of the car, wearing flip flops.

After leaving the car and stepping forward, the plaintiff slipped on ground cover, which she later claimed had grown out of the flowerbed and onto the sidewalk. A store employee who was also a friend of the family later spotted her fall from 25 feet away. After the fall, he saw that plants had grown 10 inches out of the flowerbed and onto the sidewalk. The plaintiff suffered a fractured ankle, which necessitated two surgeries.

The plaintiff sued under theories of negligence and premises liability. The store moved for summary judgment. It argued that the overgrowth wasn’t dangerous as a matter of law under premises liability law, that the store neither knew nor should have known of the defect, and that there wasn’t evidence of either of these elements. The plaintiff argued that it was reasonable to infer that the plant grew slowly in growing over the edge of the flowerbed, which raised a factual issue about whether the store should have known about the defect. She didn’t address the argument that a plant overgrowth was not dangerous as a matter of law.

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Published on: January 28, 2016

Liability for Falling Objects in a Texas Big Box Store

By Carabin Shaw

In PNS Stores, Inc. v. Munguia, a store appealed from a judgment awarding a plaintiff $1,048,500 in damages in his premises liability case. Two bottles of deck wash fell from a shelf five feet high and hit the plaintiff on the head when he and his son went to the defendant’s store in Pasadena to buy a trashcan. Before being hit, he saw one or two 32-ounce bottles falling, and he witnessed one or two more bottles fall from a shelf. No warning cones or signs had been placed in the aisle.

As he approached the bottles, the plaintiff saw a store employee coming from the other side of the aisle where he was stacking merchandise. The plaintiff helped the store employee pick up the fallen bottles, and he was standing up when two bottles fell and hit him on the head. The store employee later stated he’d knocked the bottles off the shelf, and they hit the plaintiff.

The plaintiff was dazed. He spoke to the manager. The incident report included the store employee’s statement. The report also noted that the plaintiff’s ear was red due to the force of the impact. When he went home, the plaintiff was nauseated and weak, and he sought medical attention. He was advised by a medical clinic to go to the ER for evaluation of head trauma, but he went back home instead.

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Published on: January 28, 2016

Texas Court Affirms No Medical Malpractice with a Child Victim

By Carabin Shaw

In Quiroz v. Llamas-Soforo, a Texas appellate court considered a medical malpractice action brought by a mother on behalf of her son against a doctor. The son was born prematurely at 24 weeks and had less than a 50% chance of survival. He suffered from severe problems, including respiratory distress syndrome and sepsis. He also had cerebral palsy. His risk for retinopathy of prematurity was high. This is a disease arising out of premature birth in which the retina’s blood vessels do not develop normally and can result in blindness when not treated in a timely fashion.

Guidelines require weekly exams instead of daily exams because the procedure involved in the examination carries risks, such as increased heart rate and a halt in respiration. In this case, the doctor delayed the exam slightly due to a bacterial infection.

Although the baby was supposed to have a follow-up with the same doctor, he went to a different pediatric ophthalmologist, who diagnosed him with bilateral temporal detachments between the optic nerve and macula. The doctor referred him to a retina specialist, who observed retinopathy of prematurity (ROP) in both eyes, among other things.

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Published on: January 28, 2016

Does a Prior Property Owner Have Liability for a Dangerous Condition in Texas?

By Carabin Shaw

In Occidental Chemical Corporation v. Jenkins, the Texas Supreme Court considered a premises liability case in which the property’s dangerous condition was created by an previous owner. The case arose in 2006 when a man was injured while using a component to add acid to a large tank at a chemical plant. The plant produced triethylene glycol (“TEG”). This needed to be kept at a particular acidity.

The acid-addition device had multiple components. In 1992, it was designed and put on the tank by Occidental Chemical Corporation, and it was believed to be a safer way to add acid to regulate the pH. It was used for six years without a problem. In 1998, the plan was sold to Equistar Chemicals, the plaintiff’s employer. Many years later, the plaintiff was injured.

His employer asked the plaintiff to add acid to the tank for the first time.. He looked at the operating instructors and added the acid. Later, he was asked to adjust the pH again. However, the acid from the morning remained in the system under pressure. When he opened the first valve, acid flew into his eyes.

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Published on: January 28, 2016

Negligent Entrustment in Texas Car Crashes

By Carabin Shaw

In Dao v. Garcia Ex. Rel. Salinas, a man borrowed the defendant’s car to pick up his friend at a restaurant. The defendant and the man were former roommates, friends, and business associates. On the day that the man borrowed the defendant’s car, she’d had dinner with the man and fallen asleep at his apartment. While she was sleeping, he took her keys and drove her car to get his friend at the restaurant. While at the restaurant, he drank part of a glass of wine, one of several he’d consumed that day.

As the man and the friend left the restaurant in the car, they started to go the wrong way on a one-way street. The man then tried to drive across the street to go into a driveway. At that point, Rojelio Salinas came down the street in his moped, and the defendant crashed into him. Salinas died from his injuries. His estate sued the man, the defendant, the restaurant, and another party for negligence.

Included in the causes of action was a claim against the defendant for negligent entrustment. The jury found that the defendant, the man, and the restaurant were negligent, awarding $737,000 in damages. The jury apportioned damages with 10% to the defendant, 5% to the restaurant, and 85% to the man. The court ordered that the defendant and the man were jointly and severally liable for $700,150. The defendant filed a motion for new trial, which was denied on the grounds that it was against the operation of law.

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Published on: December 10, 2015

Holding a Texas City Accountable for a Car Accident

By Carabin Shaw

In Adams v. City of Dallas, the appellate court considered a car accident allegedly caused by a malfunctioning traffic light. The two people involved in the accident were Clinton Adams and Adeba Ghebrekidan. The latter sued the former and the City of Dallas. Adams counterclaimed against Ghebrekidan and cross-claimed against the City 20 days later.

The City claimed it wasn’t provided with timely written notice of Adams’ lawsuit, and it didn’t have the actual notice required by the Texas Tort Claims Act. The lower court dismissed Adams’ claims against the City.

Adams appealed. The appellate court explained that if the City had sovereign immunity from suit, the lower court would not have subject matter jurisdiction over the case. All plaintiffs bringing lawsuits against governmental entities are required to provide notice to the relevant entity in order to bring a valid lawsuit. Under Texas Civ. Prac. & Rem. Code Ann. § 101.101, a governmental entity is entitled to notice of a claim within six months of the day of the accident described in the claim. However, under § 101.101(c), the notice requirement doesn’t apply if the governmental entity has actual notice of the claimant’s injuries.

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Published on: December 10, 2015

Slip and Fall on a Texas College Campus

By Carabin Shaw

In Texas State Technical College v. Washington, the plaintiff claimed that she slipped and fell in water on the Texas State Technical College campus after a water line broke the building’s ceiling and flooded the floor. The college is a governmental unit. She sued the college for personal injuries suffered in the fall. The college filed a plea to the jurisdiction, arguing among other things that she failed to provide evidence it knew or should have known about the water on the floor, and that she failed to establish a waiver of the college’s immunity. The plea to the jurisdiction was denied.

The college appealed. In general, the Texas Tort Claims Act waives governmental immunity in a slip and fall case when the governmental entity would be liable to the claimant if it were a private person in Texas. The issue in the appeal was whether there was evidence of the college’s liability that invoked a waiver of governmental immunity.

The appellate court explained that in Texas slip and fall cases, plaintiffs must show defendants have actual or constructive knowledge of dangerous conditions in order to recover damages. The dangerous condition in this case was a slippery substance on the floor. In order to establish the actual or constructive knowledge requirement, the plaintiff needs to prove: (1) the defendant put the substance on the floor; (2) the defendant actually knew the substance was on the floor; or (3) more likely than not, the condition existed long enough to give the defendant a reasonable opportunity to discover the problem.

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