Texas Injury Lawyers Blog

Published on: September 21, 2015

Liability for Texas Restaurants When Patron Suffers Allergic Reaction?

In Gibbons v. Luby’s, Inc., the plaintiff suffered anaphylaxis at a Texas restaurant after eating a salmon croquette that she did not know contained whitefish, to which she was allergic. After she started eating, her throat became scratchy, and her face turned red. A restaurant employee told her that the ingredients included whitefish.

The plaintiff and her friend headed for the hospital, but it was too far away. The friend stopped at a fire station, and the paramedics treated her until an ambulance could come. She was unconscious by that point. She was taken to the hospital and diagnosed with anaphylactic shock, acute respiratory failure, and hypoxemia. By that time, Gibbons was unconscious.

Gibbons was taken by ambulance to the hospital, where she was admitted and diagnosed with anaphylactic shock, hypoxemia, and acute respiratory failure. The physicians sedated her, intubated her, and put her on life support. She was discharged two days later.

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Published on: September 21, 2015

Texas Slip and Fall in a Hospital

By Carabin Shaw

In Reyes v. Memorial Hermann Health, a plaintiff appealed from the dismissal of her personal injury claims against the defendant. The case was dismissed because she failed to timely file an expert report under section 74.351 of the Texas Medical Liability Act (TMLA).

The case arose when a woman slipped and fell on a liquid substance inside the defendant’s premises. There were no signs or other warnings about the unsafe flood conditions. She also claimed that the defendant knew or should have known about the hazardous condition, that it breached its duty of care, and that the breach caused her injuries. She claimed that her injuries and damages were proximately (legally) caused by the defendant’s failure to use reasonable care. She did not state specific details about why she was on the property.

The defendant filed a motion to dismiss on the grounds that it was a health care liability claim. and she had failed to file a timely expert report. She responded that her claims weren’t health care liability claims and that she’d filed an expert report. The trial court granted the motion to dismiss.

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Published on: September 21, 2015

Sufficient Evidence for Damages in Texas Car Accident Case

By Carabin Shaw

In Dabbs v. Calderon, a Texas Court of Appeals considered a case in which the defendant ran a red light and crashed into two cars. One of the passengers in one of the struck cars was pinned inside the car. When he was freed by emergency personnel, they found his leg was badly hurt. Doctors diagnosed him with a fracture in his shin bone and gave him a pain medication prescription, stabilized his leg, and discharged him. At home, his family had to cook for him and give him baths.

Three weeks later, his leg was covered in fracture blisters, and he had to stay at the hospital for five days. Six months later, he had to have a surgery, and he went to physical therapy three days a week for several months until April 2012. Later he testified that his right leg atrophied from non-use, and when he did try to use it, his foot would swell and turn blue.

The accident victim sued the woman who crashed into the two cars, claiming she negligently ran a red light because she was distracted. The woman claimed she couldn’t stop because her brakes failed.

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Published on: September 21, 2015

Meat-Cutting Work Injury in Texas

By Carabin Shaw

In Kroger Company v. Milanes, an employer that didn’t subscribe to workers’ compensation appealed from a final judgment in favor of its employee. The employee suffered serious injuries while cutting meat. On appeal, the employer raised multiple arguments, including the argument that the trial court had erred in submitting the plaintiff’s claim to the jury on a theory of general negligence rather than premises liability.

The plaintiff went through a one-day orientation before starting work in 2007. It didn’t include safety training, focusing instead on joining the union. He started out as a clerk in the meat department and was then promoted to apprentice meat cutter. As an apprentice, journeymen—more experienced meat cutters—trained him on how to use the meat cutters, including a bone-in band saw.

The plaintiff was trained a great deal by one particular journeyman, who he thought did a good job training him, but he never taught him to use a band saw blade guard as required by OSHA. He didn’t even know that the bone-in band saw had a blade guard for safety and was never given the operation manuals or warning labels. He thought it was used to line up the meat. The plaintiff eventually became a journeyman himself.

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Published on: September 21, 2015

Injuries on a Texas Demolition Project

By Carabin Shaw

In Lopez v. Wildcat Cranes, a welder on a demolition project was injured. The welder was cutting a large steel beam, weighing thousands of pounds, which was located 25 feet above the surface of the roof, and removing it from the ceiling structure. The welder used a scissor lift to reach the beam, and another worker was going to cut the other end as soon as the welder finished cutting.

A crane was necessary to extract the beam. A company called Wildcat Cranes provided the crane, and its employee operated it. The one provided had a 12,000-pound capacity. The operator relied on a lift director to estimate the weight of the beam and direct the extraction by radio. The operator had the final decision as to whether the beam was within the crane’s capacity to lift. In this case, the lift director estimated the weight was 12,000 pounds, so he told the operator to apply a 6,000-pound counterweight. The estimate was not right.

As the beam was being cut, the operator knew something was wrong. The cab in which he was sitting began shaking, and a safety alarm went off, among other things. On the roof, the beam once cut fell four feet, and either it snagged the welder’s safety lanyard or hit the scissor lift. The welder was thrown from the platform and hung there by his safety lanyard. He climbed back on the platform without getting hurt.

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Published on: August 9, 2015

Can A Private Engineering Firm Have Sovereign Immunity From Personal Injury Lawsuits in Texas?

By Carabin Shaw

In Brown and Gay Engineering, Inc. v. Zuleima Olivares, the Texas Supreme Court decided an important issue related to sovereign immunity in personal injury lawsuits. The case arose when a drunk driver entered the exit ramp of Westpark Tollway and drove east in the westbound lanes for eight miles before crashing into a driver. Both of them were killed. The part of the road where they died was under the control of the Fort Bend County Toll Road Authority, a local government corporation that was created to design and build it.

The Authority had contracted with the defendant, an engineering firm, in accord with Texas Transportation Code section 431.066(b). This code section allows local governments to retain an engineer to develop a transportation system or facility. The engineering firm was responsible for providing the necessary equipment and personnel and for obtaining insurance for the project.

The mother of the victim of the drunk driving accident sued the engineering firm and others, arguing that the failure to design proper signs and other devices near the exit ramp where the drunk driver entered had legally caused the victim’s death. The Authority filed a plea to the jurisdiction, claiming governmental immunity, which was denied by the trial court. The appellate court reversed, holding the Authority had sovereign immunity based on its discretionary acts related to traffic safety devices. When the case went back to the trial court, the plaintiff nonsuited the government.

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Published on: August 9, 2015

Drug Withdrawal and Expert Testimony in a Texas Truck Accident Case

By Carabin Shaw

In Cady v. Cargile, a Texas appellate court considered a tractor-trailer crash. The decedent was visiting a friend’s house and borrowed his pickup. Two miles away, he crashed into a tractor-trailer that was stuck, blocking all lanes of traffic, and he died. His mother sued the driver of the tractor-trailer and the trucking company for wrongful death. The jury found that the death arose out of the decedent’s own negligence and awarded no damages. The trial court ordered that the plaintiff take nothing on her claims.

The plaintiff appealed on the grounds that the trial court shouldn’t have admitted the trucking company’s expert testimony because it was irrelevant. The plaintiff contended that the expert’s methodology was unreliable and that there was too big a gap between the data and the opinion proffered. The appellate court explained that there is a two-part test that covers whether expert testimony is admissible. First, the expert needs to be qualified, and second, the testimony must be relevant and based on a reliable foundation.

The trial court has broad discretion to determine whether expert evidence is admissible or not. However, in examining whether the expert’s testimony is reliable, the court is not allowed to determine the correctness of conclusions. The expert testimony may be unreliable if the expert draws conclusions based on flawed reasoning or methodology. If there is too big a gap, as argued by the plaintiff here, the opinion may not be reliable.

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Published on: August 9, 2015

Texas Supreme Court Rules on Design Defect Case

By Carabin Shaw

The Texas Supreme Court recently decided Genie Industries, Inc. v. Ricky Matak, a product liability case. In Texas, manufacturers are not liable for design defects unless there is a safer alternative design and the defect makes the product unreasonably dangerous such that its risks outweigh its usefulness.

The case arose when a worker was supported 40 feet in the air by an aerial lift made by the defendant. The base of the lift was small and on wheels, and an electromechanical interlock prevented the platform from being elevated unless all outriggers were in place and leveling jacks were pressed to the ground. Others tried to move the lift with the worker on it. There were signs on the machine and instructions in the user manual that warned the machine could tip over, causing the worker to fall from a great height. The worker in this case did fall and died of massive head injuries. There have been only three reported accidents like the one in this case.

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Published on: August 9, 2015

Manufacturing Defect or Slip and Fall in Texas?

By Carabin Shaw

In some Texas personal injury cases, it is difficult to know which theory of recovery to pursue. In Pilgrim’s Pride Corporation v. Mansfield, a manufacturer appealed from a judgment in a product liability case that on the surface might have looked like a slip and fall. A jury had found that the product, which was a bag of frozen chicken, had a manufacturing defect when it was sold to a retail grocer.

While shopping at the retail grocer, a customer slipped and fell on liquid that leaked through the defective bag of chicken. The store manager helped her get up, and she stated she thought she was okay and wouldn’t need an ambulance. The manager filled out an accident report on the store form, noting that the customer had slipped on blood that came through a leak in the bag of chicken while she was pushing her grocery cart.

At trial. the store manager testified that he noticed there was a trail of liquid spots behind the plaintiff’s cart just after the accident, and that he’d inspected the bag as well. He took the bag to the meat department, noticing that the bag was open, not just torn or cut. The meat department manager and his assistant also noticed that the corner of the bag was unsealed. The manager testified there was an opening at the bag’s seam, a defective seal, which allowed the liquid to leak.

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Published on: August 9, 2015

Elections of Remedies when Suing a Governmental Employee in Texas

By Carabin Shaw

If you are suing a governmental employee for personal injuries but are not sure if he or she was acting in an official capacity at the time of injury, you should be aware of election of remedies under the Texas Tort Claims Act (TTCA). In Molina v. Alvarado, a Texas plaintiff sued a city for negligence and negligence per se, on the grounds that its employee Alvarado was driving a city vehicle under the influence of alcohol when he hit the plaintiff. The plaintiff originally alleged that the employee was operating the city’s vehicle in the course and scope of employment with the city, and the city had negligently operated the vehicle through its employee. The original petition didn’t describe the employee’s job duties or state that he was performing a task assigned to him by the city.

The city claimed immunity from the suit, arguing that no statute waived its immunity. The trial court denied the plaintiff’s special exceptions that requested the city specify the facts and law underpinning its immunity defense. The plaintiff filed an amended petition naming the employee as another defendant.

The amended petition alleged the employee operated the city vehicle in the course and scope of employment with the city. It reasserted that the city operated the vehicle in a negligent manner. The plaintiff also claimed that, if the employee wasn’t furthering the city’s governmental affairs while in the vehicle, he was liable in his individual capacity for negligent operation of the vehicle.

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