Texas Injury Lawyers Blog

Published on: June 12, 2016

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

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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Published on: June 12, 2016

Can a Texas Defendant Require You to Submit to a Medical Examination?

By Carabin Shaw

In the Texas Supreme Court case of In Re HEB Grocery Store Company, the Court considered whether a trial court had properly denied the defendant’s motion to conduct a physical examination of a personal injury victim.

The case arose when the plaintiff sued a grocery store for negligence, claiming he’d tripped and fallen over a metal plate in front of the grocery car corral in its parking lot, suffering injuries to his face, neck, shoulder, arm, and knee. He underwent medical care, including spinal surgeries. While the lawsuit was pending, he was also involved in an accident at a Sam’s Club. He sued the Sam’s Club, claiming that an employee had dropped a roll of artificial turf on his head, causing him to suffer head and neck injuries.

The grocery store retained as a medical expert an orthopedic surgeon. The surgeon didn’t examine the plaintiff but did provide a report with opinions about the plaintiff’s injuries, relying on a medical records review. It was his opinion that the plaintiff’s spinal injuries were the result of a preexisting spinal condition and that nothing in the plaintiff’s MRI a month after the fall suggested he had an acute injury.

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Published on: June 12, 2016

The Discretionary Powers Exception in Texas

By Carabin Shaw

In City of Austin v. Frame, a Texas Court of Appeals considered a lawsuit filed against the City by four plaintiffs under the Texas Tort Claims Act and recreational use statute after an accident. The case arose when a man drove his car off the street, jumped a curb, and drove onto a hike-and-bike trail next to the road. The vehicle hit two pedestrians, one of whom died of his injuries. The plaintiffs sued the City for negligence, gross negligence, premises liability, special defect, and breach of duty under the recreational use statute.

The plaintiffs claimed the City failed to safely construct the trail, knew of prior instances of vehicles traveling over the curb onto the trail in the same place, and failed to correct or warn about this dangerous condition. They also claimed the City’s policies required it to take corrective action about known safety hazards and that it should have constructed a guardrail in response.

The City argued it was immune from suit because the Texas Tort Claims Act didn’t waive governmental immunity for discretionary decisions about how a road should be designed and whether specific safety features should be installed. It also claimed that the plaintiff couldn’t amend the complaint to cure the problems with it because the facts pled in the complaint only related to discretionary decisions. The plaintiffs argued that there was no immunity because the City’s failure to address the known safety hazard was a failure to implement its own policy, and it was not a design decision or initial policy for which it could be immune.

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Published on: April 10, 2016

Sufficiency of Evidence to Recover Lost Tuition After Texas Car Accident

By Carabin Shaw

In Rizzuti v. Smith, an appellate court considered whether there was enough evidence to support the jury’s awards related to a plaintiff’s medical expenses and loss of a college tuition payment. The case arose when the defendant (Rizzuti) backed his car into the plaintiff (Smith), who was behind the car. Both the defendant and the plaintiff were with others who had been drinking at nearby bars. Somebody in Smith’s group observed the defendant back over the plaintiff and then move forward and run over the plaintiff another two times.

The plaintiff suffered many injuries and had to go through twelve surgeries. The biggest injury was from his dislocated left knee. At the time of his injuries, the plaintiff was going to junior college. He later claimed that his injuries stopped him from finishing the coursework for his spring semester, and that he lost $1500-$2000 in tuition because of the accident.

At trial, a jury determined that both the defendant and the plaintiff were negligent. However, it assigned 82% of the responsibility for the accident on the defendant and only 18% on the plaintiff. It also found the defendant’s actions were grossly negligent. It awarded the plaintiff $6000 for mental anguish and past pain, $3000 for future mental anguish and pain, $1500 for the loss of his tuition, and $112, 753.60 for his medical expenses, including the past surgeries. It determined that he hadn’t proved future medical expenses or impairment, and no punitive damages were awarded. The trial court’s final judgment was for $102,957.95.

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Published on: April 10, 2016

Injuries Sustained Due to Property of a Texas University

By Carabin Shaw

In The University of Texas Southwestern Medical Center v. Munoz, the plaintiff was hurt by heavy equipment on which he worked near property owned by the university. Employed by Universal Controls, Inc. (UCI), he was an electrician. UCI subcontracted to retrofit an air-handling unit (a type of air conditioner in offices). UCI needed to install new computer panels and sensors. UCI had to run wiring for the system, including making decisions about where the wire would be run. Its employees were responsible to do the work. The university didn’t supply materials, but it owned the complex, including the towers to which air conditioning would be supplied.

The second tower was a 14-story building. The unit at issue was a pulley-driven motor system. Although it was supposed to have a safety cover, it was missing. The plaintiff started working on the unit in October and worked there for seven or eight days without a problem. He noticed the missing safety cover before the date of his injury, October 9.

On that day, he saw that UCI employees were there, but no university employees were there. He noticed that another employee had left wire in the walkway near an uncovered spinning wheel and realized it was dangerous. However, he simply walked around the wire instead of tying it on multiple occasions. One time, his leg got caught in the wire, which was entangled in the spinning wheel, and he was jerked as the wire pulled by the spinning wheel lifted him and twisted his knee. His knee and back were hurt, and he had to have two surgeries, both of which were unsuccessful.

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