Texas Injury Lawyers Blog

Published on: April 10, 2016

Suing the Government for Texas Road Construction Accidents

In Texas Department of Transportation v. Brown, the plaintiff was driving on Hwy 82, in an area that was a construction zone, when she crashed into an unmarked machine parked in the right-hand lane. Later, she would claim that the barricade drums that were put between the two lanes didn’t show which lane was closed.

She sued the contractors for the Texas Department of Transportation (Department) and others for negligence. The defendants designated the Department as the responsible third party. She then amended her suit to include the Department as a defendant. She argued that the Department’s governmental immunity was waived under the Texas Tort Claims Act (TTCA). The TTCA required pre-suit notice. Her petition didn’t claim to provide pre-suit notice, only that she had generally met all the prerequisites to file suit.

The Department filed a verified answer and claimed governmental immunity, alleging she hadn’t provided notice of her claim as required under Section 101.101(a) of the Texas Civil Practice and Remedies Code. The director of the relevant section of the Department swore that notice hadn’t been received. Later, the Department filed a plea to the jurisdiction, arguing there was no subject matter jurisdiction.

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Published on: March 20, 2016

Texas Workers’ Compensation as Exclusive Remedy for Work Injury

By Carabin Shaw

In Palmer v. Newtron Beaumont, the plaintiff appealed on the basis that the trial court shouldn’t have granted summary judgment in favor of the defendant. The plaintiff was an employee of Motiva who sued the defendant (Newtron Beaumont) when a Newtron employee stepped on him at the Motiva plant while getting down from scaffolding. The plaintiff argued that it was Newtron’s negligence that caused his injuries.

Newtron filed a summary judgment motion, claiming that it and Motiva had entered into an agreement whereby Motiva was to provide workers’ compensation insurance and employer’s liability insurance for Newtron and its employees when they worked for Motiva. The Motiva policy covered all of Motiva’s employees, including the plaintiff. Newtron argued that Texas law made Newtron Motiva’s deemed employee, and therefore it was the plaintiff’s fellow employee under the Texas Workers’ Compensation Act. This would make it immune from the plaintiff’s effort to recover workers’ compensation benefits.

In its summary judgment motion, the defendant argued that Motiva kept the right to implement and maintain its workers’ compensation and employer’s liability insurance. The motion further argued that the plaintiff was acting in the course and scope of his employment with Motiva at the time of the injury, and his exclusive remedy under the Texas Workers’ Compensation Act barred him from filing a civil suit for work-related injuries against any of his fellow employees (such as Newtron).

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Published on: March 20, 2016

Single-Vehicle Accident in Texas

By Carabin Shaw

In Homman v. Kugler, a husband and wife involved in a single-vehicle accident sued a retail outlet and its owner, who was also the man who loaded their trailer. The plaintiff worked for David’s Patio, and on the day of the accident, he was driving a pickup and trailer for the defendant retail outlet to pick up angle irons. The owner of the retail outlet used a forklift to put the loan on the trailer. The plaintiff used only a single strap to secure the load and then drove back to his company.

The plaintiff started to get onto the freeway, but the trailer began swaying, pushed forward, and lifted the back wheels of the pickup. The pickup spun, balancing on two wheels on its side, and then the trailer broke off and rolled away. The pickup sat back down on its four wheels. The plaintiff wasn’t cited for the accident and did not see a doctor right away.

He went back home feeling sore. The next day, when he woke, he felt sore from his upper buttocks to his skull. He went to the doctor and was diagnosed with herniated and bulging discs. The doctor prescribed physical therapy and epidural steroid injections. He was also told he needed fusion surgery on his lower back, but he hadn’t gotten this surgery at the time of trial.

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Published on: March 20, 2016

Slip and Fall in Texas County Jail

By Carabin Shaw

In Jefferson County v. Akins, the plaintiff sued a county for personal injuries arising from her slip and fall in the hallway of the county jail. She was an employee of the jail, supervising inmates in the kitchen area in the middle of the night, and the fall occurred when she was leaving the jail after the end of her shift. Water often dripped in the hallway from trays being delivered from the kitchens.

Before falling, the plaintiff noticed an employee supervising a crew that was mopping the hallway. She didn’t know what she’d fallen on, but after she fell, she noticed her back was wet and the floor was shiny. Her supervisor witnessed the fall, and was of the opinion that she had fallen because the crew had just mopped the area where the plaintiff was injured.

The supervisor of the cleaning crew testified that there was a sign noting the floor was slippery on the mop bucket used by her crew. She also testified that she would dry-mop areas after mopping because she was concerned about safety. She also contradicted the plaintiff’s testimony about where she was when the plaintiff fell. She testified that she was standing about a foot from the accident and her crew hadn’t mopped the location of the fall. However, she had scolded the crew immediately after the fall, because she believed in that moment that they had left the area mopped and wet. Later she noticed drops of water on the floor in the door of the dining room and inside the dining area. It was her opinion that the trays from the kitchen carts had dripped and caused the plaintiff’s fall.

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Published on: March 20, 2016

Unavoidable Motor Vehicle Accidents in Texas

By Carabin Shaw

In Gomez v. Cooke, a Texas appellate court considered a case that arose when a couple was on a cross-country road trip, traveling through Houston. The husband was driving the pickup, which was towing a camper.

Before the accident, the wife was looking at her GPS and instructing her husband to take a right turn. The truck moved toward the left, and the wife looked over to see her husband’s head had dropped and he was totally unresponsive. She tried to move his foot off the gas, but it was too late, and the truck and camper crashed into six vehicles, including a car driven by the plaintiff.

When they arrived, the emergency medical services personnel noticed that the left side of the husband’s face was drooping, and that side of his body was weak. At the hospital, the doctors determined the husband had suffered a stroke, causing him to lose consciousness.

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Published on: February 17, 2016

Suing a Texas Governmental Entity for a Defective Guardrail

By Carabin Shaw

In Texas Department of Transportation v. Kirk, the plaintiff sued several entities, including the Texas Department of Transportation (TxDOT), to recover compensation for injuries suffered when he lost consciousness and control of his vehicle on Hwy. 277. Before crashing the car, he started to suffer dizziness and blurred vision. When he lost consciousness, his car left the road and hit a guardrail, some of which came through the passenger side, causing injuries.

Later, the plaintiff claimed that the end terminal of the guardrail had an ET-Plus design, which was developed and sold by various defendants, although not TxDOT. It had been designed so that it would absorb collision impact. The plaintiff also claimed other parties had altered the design so that it didn’t function in the same way.

TxDOT filed a motion for summary judgment and to dismiss, arguing it had sovereign immunity. The motion was denied, but the trial judge gave no reason why. TxDOT appealed.

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Published on: February 17, 2016

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

By Carabin Shaw

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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