Texas Injury Lawyers Blog

Published on: April 30, 2018

Texas Supreme Court Rules on Sufficiency of Expert Report in Medical Malpractice Case

Texas medical malpractice claims must meet certain requirements in order to continue in court. In a recent case, the Supreme Court of Texas issued a decision concerning a plaintiff’s requirement to submit an expert report in a medical malpractice case.In that case, a woman had cataract surgery on her left eye. Before the surgery began, a nurse anesthetist administered anesthesia by injecting anesthetic into the space behind the globe of her eye. The woman alleged that the nurse negligently inserted the needle into her left optic nerve, causing her permanent nerve damage and vision loss.

The woman sued the nurse and his employer. In support of her claim, she submitted an expert report, which she later amended. The expert stated that he believed that the woman suffered an injury to the left optic nerve as a result of the nurse’s administration of anesthesia. The expert believed that the nurse was negligent in part by damaging the woman’s left optic nerve by sticking it with the needle.

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Published on: April 30, 2018

Court Determines Texas Plaintiff’s Workplace Injury Case Was Filed Too late

By Carabin Shaw

In a recent case, the state’s Supreme Court ruled against a plaintiff in a Texas workplace injury case. The plaintiff was employed by an energy company, where his employer and another energy company were drilling for oil. The incident that resulted in this lawsuit occurred when an employee of the other energy company asked him to clean up a spill of fracking liquid; however, the employee did not provide him with any protective gear. Evidently, the liquid contained toxic chemicals that came into contact with the plaintiff’s body. The plaintiff’s skin was burned when it came into contact with the liquid, and within hours, he was in severe pain. About four months later, he was diagnosed with squamous cell cancer.

Procedural Posture

About two years after being diagnosed with cancer, the plaintiff sued several entities but did not include the energy company that employed the employee who instructed him to clean up the spill. However, shortly thereafter, the plaintiff amended his petition to include the company, alleging that it was negligent in allowing the liquid to leak and asking him to clean it up without protective measures. He argued that the company was liable for his cancer, which was a new illness that developed from his exposure.

The energy company argued that they were entitled to summary judgment because the claim was filed past the statute of limitations. The plaintiff argued that the statute of limitations was tolled because he could not have known about their negligence until after he was diagnosed with cancer. The trial court granted summary judgment in favor of the company, and the court of appeals then reversed the decision. The defendant then appealed to the Texas Supreme Court.

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Published on: April 30, 2018

Supreme Court of Texas Reverses Lower Court’s Decision in Car Accident Case in Favor of Plaintiff

By Carabin Shaw

Earlier this month, the Supreme Court of Texas issued a written opinion in a Texas car accident case involving the question of whether the defendant employer could be held liable for the allegedly negligent actions of an employee. Ultimately, the court concluded that the lower court improperly granted the defendant employer’s motion for summary judgment, finding that a genuine issue of fact remained as to whether the employer was vicariously liable. Thus, the court reversed the lower court’s judgment and remanded the case.

The Facts of the Case

The plaintiff worked for a company that drilled oil and gas wells. On this particular job, the plaintiff and the rest of the crew were put up in company housing about 30 miles away from the drilling site. A contract between the plaintiff’s employer and the owner of the land where the wells were to be drilled stated that the supervising crew member would be compensated for driving the crew members to and from the drilling site.

Thus, for this particular job, the plaintiff’s crew supervisor provided the plaintiff and the rest of the crew with transportation to the drill site. One day, the supervisor was involved in a car accident that killed two members of the crew and injured the plaintiff. The plaintiff filed a personal injury lawsuit against the employer, arguing that it was vicariously liable for the supervisor’s negligence in causing the accident.

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Published on: April 30, 2018

Establishing Liability in Texas Truck Accident Cases

By Carabin Shaw

Liability in Texas car crashes is generally governed by negligence principles. Negligence refers to a party’s failure to act in a way that an ordinarily prudent person would act under the circumstances to prevent an unreasonable risk of harm. Under Texas law, the elements of a negligence claim are: 1) a legal duty owed by one person to another; 2) a breach of that duty; 3) damages; and 4) proximate causation of the damages by the breach of duty.The standard of care one person owes another depends on the circumstances surrounding the accident as well as the relationship between the parties. Generally, the standard of care refers to the care and diligence that an ordinarily prudent person would use to prevent injuries under the circumstances. Therefore, a plaintiff must show that a defendant did something (or failed to do something) that a person exercising ordinary care would not have done under the circumstances.

In car accident cases, in order to hold another driver liable, a plaintiff must show that the driver was negligent and also that the other driver’s negligence proximately caused the plaintiff’s injuries. Proximate cause refers to both the direct cause of the damages and the foreseeability of the damages. In cases involving more than one negligent driver, each driver is jointly and severally liable for the resulting damages.

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Published on: April 30, 2018

Plaintiff’s Case Against Government Dismissed Based on Failure to Provide Adequate Notice

By Carabin Shaw

When someone is injured due to the allegedly negligent act of a government employee or entity, they may be entitled to compensation for their injuries through a Texas personal injury lawsuit. However, as a general rule, government entities are not liable for injuries caused by their negligent actions related to carrying out government business. In some specific situations, however, government immunity is waived. This is normally through statutorily defined exceptions contained in the Texas Tort Claims Act (TTCA).In order for an accident victim to pursue a valid claim against a government entity, the victim must comply with the procedural requirements set forth in the TTCA. One of the major requirements of the TTCA is the notice requirement. As a general rule, notice must be provided to the agency that is being named as a defendant. However, in some cases, notice need not be provided if the agency has actual notice through other means.

Courts have held that a government can be said to have actual notice of a potential claim if the agency has subjective knowledge that there was an accident involving death or injury, the government agency’s fault contributed to the accident, and the government knows the identity of the parties. A recent case illustrates how courts strictly interpret this requirement, and how an accident victim’s failure to comply with the requirement may adversely affect their case.

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Published on: April 30, 2018

Texas Supreme Court Dismisses $2 Million Judgment for Submitting Improper Claim to Jury

By Carabin Shaw

Seemingly small decisions in a case can end up making or breaking a case. In a recent Texas construction injury case, the Supreme Court of Texas dismissed a $2 million judgment on appeal after the plaintiff submitted a negligence claim to the jury instead of a premises liability claim.

The Facts of the Case

An employee was working on scaffolding at a refinery when he slipped on a piece of plywood, causing him to fall through a hole in the scaffold and suffer a neck injury as a result. The scaffolding was constructed by a scaffolding company that the employee’s company had hired to build scaffolds at the refinery. The scaffolding company was required to inspect every scaffold at the refinery before each work shift and before each scaffold’s use. There were almost 3,000 scaffolds at the refinery at the time. The scaffolding company’s employees were not present on the date of the employee’s fall.

The employee brought a lawsuit against the scaffolding company, arguing that the company improperly built the scaffolding and failed to remedy or warn of a dangerous condition. The case went to trial, and the trial court submitted a general negligence question to the jury. The jury found the scaffolding company was negligent and awarded the employee $2 million in past and future damages. The scaffolding company appealed, arguing that the court should not have submitted a general negligence question to the jury because the claim was a premises liability claim.

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Published on: April 30, 2018

Defective Tire and Rollover in Texas

By Carabin Shaw

A recent Texas product liability decision arose from a one-vehicle accident. The plaintiff was driving his vehicle with his family when a back tire burst, triggering a rollover. Those inside the car were injured.

The driver had bought the car used from a car shop that had gotten it as salvage and repaired it before selling it to the husband. The tire in question was made by the defendant. However, the tire had triple the tread amount that is mandated by federal regulations at the time of the accident. The injured plaintiffs sued the tire manufacturer, claiming the tire was negligently or defectively designed and made. They also claimed gross negligence and failure to warn causes of action.

The plaintiffs hired a forensic tire analyst to provide expert testimony. He testified that the tire was made and designed with defects. The manufacturer moved for summary adjudication of the plaintiffs’ claims. It also tried to get the expert’s testimony excluded, arguing that he wasn’t qualified or reliable. Summary judgment was granted, but the request to leave out the expert testimony was denied. The claims against the manufacturer were separated from the plaintiff’s claims against the used car dealership that sold the car.

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Published on: April 30, 2018

Slip and Fall in a Texas Apartment Bathroom

By Carabin Shaw

In a recent Texas slip and fall case, the plaintiff had sued the owner and operator of the apartment complex where he used to live. He claimed that one night in January, he slipped and fell on damaged laminate flooring in his apartment. He claimed that the defendants had failed to keep a safe living environment and carelessly left damaged bath flooring. He alleged that he suffered severe pain due to back and neck injuries, and he stated damages of more than $450,000.

The defendants answered with a general denial and two motions for summary judgment. They claimed that he could respond with premises liability or negligent activity and that even though his petition didn’t specify his precise theory of negligence, the issue was solely a premises liability dispute.

The defendants argued that to recover damages based on a premises liability theory, the victim needed to prove they had actual or constructive knowledge of the property condition that presented an unreasonable risk of injury. They also argued that to recover damages under the negligent activity theory, the plaintiff had to show their affirmative contemporaneous actions caused the injuries. They also argued that to win under a gross negligence theory, he had to establish a negligent act or omission that involved an extreme chance of risk and that the actor actually, subjectively was aware of this risk, but continued on with conscious indifference to others’ welfare.

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Published on: February 13, 2018

Holding a School District Liable in Texas

By Carabin Shaw

In a recent Texas bus accident decision, the court considered the parents’ claim that a school district had caused their son’s death. The son, who was disabled, started going to school in the district at age three. The district picked him up in a bus used to pick up disabled students. The boy would stay in his wheelchair while being lifted onto the bus, and the wheelchair was locked into place by the district employees. The bus had both a driver and an attendant.

One day in December, the boy became unresponsive while traveling to school in the bus. The driver and attendant saw he was in distress and stopped the bus. They waited for an ambulance rather than take him to a nearby ER. They didn’t try to resuscitate him while they waited. However, their decisions to stop and wait for an ambulance were in accord with District procedures related to students who face conditions requiring medical care while traveling on the school buses.

Within an hour of getting on the bus, the boy died. His parents sued the district in the following year for wrongful death and survival damages. They later amended their complaint to allege that the bus driver had negligently driven such that their son had been tossed around in his wheelchair, that the driver had driven at an unsafe speed and disregarded curbs, bumps, and stops, that District employees hadn’t properly used available mirrors and cameras to observe their son during the trip, and that locks on the support chair were used in an unsafe and negligent way.

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Published on: February 13, 2018

Actual Knowledge in a Texas Slip and Fall

By Carabin Shaw

In a recent Texas premises liability decision, the court considered a slip and fall that occurred in the Corrections Center. A woman was going with her family member to pretrial services when she slipped on water in the hallway. She sued the county, and it claimed it had governmental immunity that barred her claims.

A pretrial services caseworker saw the puddle in front of the men’s restroom, which was in an alcove separate from the hall where the plaintiff slipped. When the caseworker saw it, the puddle was about two feet long and didn’t go into the hallway. She told support staff about the puddle, and it was their procedure to call maintenance. She assumed they didn’t but didn’t know.

An hour later, the plaintiff slipped on the water that had progressed into the hallway. The caseworker didn’t see the fall but saw her there afterward. Later, she would testify that the puddle had flowed into the hallway, although she admitted she hadn’t seen the initial puddle move or flow when she saw it.

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