Texas Injury Lawyers Blog

Published on: August 9, 2015

Negligence Per Se in Texas Bicycle Accident

In the recent appellate case of United Parcel Service, Inc. v. Rankin, the plaintiff and his family sued UPS and one of its drivers. The case arose when the driver parked his UPS vehicle in front of a house to make a delivery on his normal route. He intended to park briefly and left the vehicle partly in a lane of traffic with the hazard lights on. The view was unobstructed for 2,000 feet, but the vehicle was brown and stopped under a tree with brown leaves against the backdrop of a brown hill.

The plaintiff was traveling home by bike and rode into the back of the parked UPS vehicle and suffered severe injuries. He didn’t remember what happened, and the driver testified he didn’t see the accident. When the police came, the hazard lights of the UPS vehicle were still flashing. The plaintiff told the police he didn’t see the vehicle when he rode into it.

At trial, a police officer testified that the plaintiff had a duty to look for vehicles, and there was enough space for him to ride around the vehicle. The police officer didn’t charge the driver with illegal parking.

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Published on: August 9, 2015

Proximate Cause in a Texas Wrongful Death Case

By Carabin Shaw

In Sinclair v. Estate of Ramirez, the defendant appealed in connection with a verdict entered in favor of a decedent’s estate and his wife in a wrongful death case. The case arose when the decedent finished his welding job and drank 14-18 beers with his coworkers. He and two coworkers went to a nude cabaret, which was 50 miles away, and operated by the defendant. They drank through the evening inside the club. The decedent bought four private dances in a VIP room. At some point, the decedent got aggressive with a dancer. The dancer believed that he intended to rape her and escaped.

The dancer told the defendant. The decedent left the VIP room and asked for a refund. A witness testified that he wanted a refund because he thought he would get more because he paid for dances. The defendant refused to give the refund. The decedent threw a metal box at him. The defendant got a whip from the other side of the bar.

The decedent pushed through some doors, breaking them. To stop him from getting to an area where the defendant stored cash, the defendant ran after him. The decedent charged the defendant, who hit him with the whip. The club DJ pulled the decedent back, and the decedent fell to the floor, stunned. A club patron asked if the defendant wanted the decedent removed. The defendant said yes but later claimed he didn’t tell him to drag the decedent from the club.

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Published on: August 9, 2015

Expert Reports in Wrongful Death Claims Against Healthcare Providers in Texas

By Carabin Shaw

In Nexion Health at Garland, Inc. v. Townsend, a 69-year-old Texas woman was admitted to a rehabilitation center after a back surgery. The center assessed her as a high fall risk with good potential for rehabilitation, and two people were required to assist with transfers. She was found to have deep vein thrombosis in her lower extremities. Bed rest and anticoagulants were ordered. Testing showed some issues with her coagulation, but no further tests were ordered. The woman was not able to balance at one point and sat down on the floor. There were no signs of fracture, but later she was found to have a hematomal bump and suffered from labored breathing.

The woman had to be transferred to a medical center. She was diagnosed with anemia, weakness, tachycardia, and an altered mental status. She was suffering from a hematoma that was secondary to anticoagulation. The ICU admitted her, and she was placed on ventilation and received several blood transfusions, among other things.

She died there. Her estate filed a health care liability suit against the decedent’s treating physician and the rehabilitation center. The estate offered an expert report to support its claims. The rehabilitation center filed objections and moved to dismiss the claim. The objections were overruled and the motion denied.

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Published on: August 9, 2015

Construction Site Injuries in Texas

By Carabin Shaw

In Maldonado v. Sumeer Homes, the plaintiff appealed from three summary judgments in a personal injury action. The case arose from injuries the plaintiff suffered while working as a sheetrock installer on stilts during Sumeer Homes’ construction of a home. He tripped and fell on a stack of sheetrock. The plaintiff was working for Arturo Galvan, who’d been hired by a drywall subcontractor, who was in turn working for Sumeer Homes. The sheetrock was delivered and stacked by Moises Aguilar.

After the accident, the plaintiff sued the builders and Arturo Galvan for negligence and gross negligence. He alleged that the sheetrock had been placed negligently and that the defendants failed to warn of the danger. He also alleged that he was told to work on stilts, even though the sheetrock was negligently placed on the ground, and that all the defendants were responsible for supervising and keeping safe the workers on the job.

The builders moved for summary judgment. They challenged the breach of duty and proximate cause aspects of the plaintiff’s claims. They also argued that he had no evidence that they violated a statute for his negligence per se claim, among other things, and all three motions were granted. The plaintiff appealed.

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Published on: August 9, 2015

Apportionment of Damages in Texas Construction Accident Lawsuits

By Carabin Shaw

In Joyce Steel Erection, Ltd. v. Bonner, a Texas appellate court considered a plaintiff who was pinned by an extremely heavy concrete tilt wall at a construction site. He suffered serious injuries and needed numerous expensive surgeries. He sued Joyce Steel Erection, Ltd., Caruthers Construction, and Self Concrete, Inc. Joyce didn’t settle, but the others did.

The plaintiff proceeded to trial against Joyce. The jury found $3.5 million in past damages and $3.5 million in future damages. It determined the defendant was 34% at fault, the plaintiff was 34% at fault, and the plaintiff’s employer was 33% at fault. The trial court entered judgment against Joyce after deducting for the other parties’ degree of fault and the settlement amounts.

The defendant appealed, arguing that the trial court should have excluded any damages that could be attributed to the plaintiff’s employer and for failing to follow a particular formula in calculating prejudgment interest.

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Published on: August 9, 2015

Texas Medical Malpractice Claims Against a Governmental Entity

By Carabin Shaw

In University of Texas Health Science Center at Houston v. Cheatham, the appellate court considered the dismissal of a plaintiff’s health care liability claim based on immunity. The plaintiff had received a partial left heart bypass surgery by two employee doctors at the Health Science Center in 2008. Nurses helped doctors perform the procedure.

After the procedure, the plaintiff was X-rayed. The X-ray showed something metallic embedded within the plaintiff’s chest. He was taken back to the operator room, and the metallic object was a surgical needle. The plaintiff sued the doctors, alleging that they negligently left the needle in his chest. The doctors moved to dismiss on the grounds that they were government employees. The lower court granted the motion.

The plaintiff then filed an amended complaint, adding the Health Science Center as a defendant. The Health Science Center argued it was also immune. It claimed that the plaintiff had failed to give formal or actual notice as required by the Texas Tort Claims Act. It also filed evidence to support its plea to the jurisdiction. The plaintiff didn’t contest the evidence as inadmissible. The trial court denied the plea, and the defendant appealed.

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Published on: August 9, 2015

Use of Surveillance Video in Texas Oil Rig Work Injury Case

By Carabin Shaw

Diamond Offshore Services Limited v. Williams is a Jones Act case that arose when the plaintiff injured his back while trying to fix machinery on an offshore oil rig operated by a Texas defendant in Egypt. The plaintiff was a mechanic who had worked for the defendant two different times and in different capacities for about a decade.

One afternoon, before he was scheduled to come back to the U.S., a driller told him that the elevators had failed and he needed to repair them. He worked on the elevators for 30-40 minutes. He bent at the waist to scoot the elevators, which weighed hundreds of pounds, into his work area. While working, he felt a sharp lower back pain. When he was done, he saw a doctor who told him to rest. The next day, he felt back discomfort when bending in his bed.

The man’s back continued to hurt when he got home, and the defendant referred him to an orthopedic surgeon whom he saw 10 days later. The orthopedic surgeon was independent but had seen patients off and on for the defendant. The man told the doctor that he hurt his back on a rig in 2006, two years before the incident at issue in this case, and that he had leg pain.

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Published on: August 9, 2015

Motorcyclist Unable to Recover from City in Texas

By Carabin Shaw

In Northcutt v. City of Hearne, the appellate court considered governmental immunity in the context of a motorcycle accident resulting in the death of a motorcyclist. The motorcyclist was traveling northbound on Highway 79. A police officer had hidden on a driveway with his lights off to set up a speed trap. As the motorcyclist approached, the officer pulled his car out of the driveway to pursue a different vehicle. The motorcyclist was forced to swerve to avoid contact.

The motorcycle flipped, and he was thrown onto the highway. The defendant failed to swerve and hit him, resulting in the motorcyclist’s death. The decedent’s personal representative sued the City for negligence, seeking wrongful death and survival damages. She alleged that the city had waived its governmental immunity under the Tort Claims Act.

The City denied the allegations and put up a defense based on governmental immunity. It also filed a plea to the jurisdiction, claiming there were insufficient facts to support the claim it had waived its immunity. The trial court granted the plea. The plaintiff appealed.

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Published on: May 3, 2015

Texas Supreme Court Decides Recreational Use Statute Does Not Apply to Watching Sports Matches

By Carabin Shaw

In the recent case of University of Texas at Arlington v. Sandra Williams, the Texas Supreme Court considered whether the recreational use statute applies to those watching sports matches. The statute (Texas Civil Practice & Remedies Code section 75.001) protects landowners from run-of-the-mill negligence claims when they allow their property to be used for public recreation. However the protection only covers specific, defined recreational uses. Under the recreational use statute, plaintiffs suing landowners to whom the statute applies must prove gross negligence, malicious intent, or bad faith.

The court of appeals had determined that those watching sports matches were not doing an activity similar enough to the listed recreational uses, and it held that watching sports was not “recreation” under the statute. The defendant university asked the Texas Supreme Court to review.

The case arose when a woman and her husband sued the university for injuries the woman suffered when she fell at a university stadium. The couple was there to watch their teenage daughter’s soccer game. When the game was over, the woman went down the stairs to wait for her daughter. She stopped at an elevation, near a guardrail that separated the stands from the field. The gate’s latch had previously broken, but it was held shut with a padlock and chain. She leaned against the gate and it opened. She fell five feet to the field and hurt her rib and arm.

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Published on: May 3, 2015

Injuries on a Texas Bus

By Carabin Shaw

Buses are common carriers. If you are injured in a bus crash, you should be aware that usually their duty is higher to passengers than drivers of other vehicles. Although the duty is higher, liability is not automatic. In Mackey v. Midland-Odessa Transit, the defendant was a governmental entity that operated a public bus. The plaintiff was a representative of her sister’s estate. Her sister had died while a passenger on one of the defendant’s public buses.

In a plea to the jurisdiction, the defendant argued that it was immune from suit and that the plaintiff hadn’t shown that governmental immunity had been waived under the Texas Tort Claims Act. A plea to the jurisdiction is an assertion of immunity from suit due to the court’s lack of jurisdiction. The trial court granted the plea to the jurisdiction and dismissed the case.

The appellate court explained that sovereign immunity deprives a trial court of jurisdiction for lawsuits against governmental units unless there is consent to the suit. It found that the state had provided consent to be sued through Section 101.021 of the Texas Civil Practice & Remedies Code, which allows a governmental entity to be liable in a suit for personal injury or death proximately caused by an employee’s negligence in the scope of employment when the negligence arises from use of a motor-driven vehicle, the employee would be personally liable, and personal injury or death would, if the government were a private person, result in liability under Texas law.

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