Texas Injury Lawyers Blog

Published on: May 3, 2015

Proportionate Responsibility in Texas Work Accidents

In Hassan v. Rock, a plaintiff appealed from a judgment awarding him $212,136.64 in damages because he didn’t think the trial court should have reduced the award by his proportionate responsibility for the accident. The defendant had hired the plaintiff as a day laborer to clear brush out of an empty lot that belonged to the defendant’s friend. The defendant used a Bobcat loader, and the plaintiff crouched under the bucket. The bucket fell and hurt the plaintiff.

The plaintiff sued the defendant for negligence and gross negligence. The plaintiff objected to submitting proportionate responsibility questions to the jury, claiming that proportionate responsibility didn’t apply because the defendant was his employer but didn’t have workers’ compensation insurance as required under Tex. Lab. Code § 406.033(a)(1).

Nonetheless, the trial court submitted the questions related to the plaintiff’s responsibility for getting injured to the jury. The jury found that the defendant was 57% responsible and the plaintiff was 43% responsible. The plaintiff moved to disregard the jury’s answers to the proportionate responsibility questions. The trial court denied the motion and rendered a judgment reducing the plaintiff’s damages award by 43%. The plaintiff appealed.

Continue reading →

Published on: May 3, 2015

Negligent Supervision in Texas

By Carabin Shaw

In ExxonMOBIL Corporation v. Pagayon, the Texas Court of Appeals considered a case in which a man died after a fight between himself, his son, and an employee of the defendant at the defendant’s service station and convenience store. The defendant appealed a judgment in favor of the man’s wife, children, and estate on their wrongful death claims.

Pagayon and Cabulang were employees at a convenience station. They and Pagayon’s father had known each other before the employment. The son had conflicts with Cabulang at work and told both his manager and his father about them. The father phoned Cabulang, and they spoke heatedly about the conflict.

While working together, Cabulang cursed at Pagayon and in Pagayon’s view threatened him and his father. A coworker told the store manager, but the manager simply told the son to stay away from Cabulang. The father came to the store to pick up his son, and Cabulang started a fight with him, hitting him multiple times in the head and back. The father was taken to the hospital emergency room. He was moved to the ICU, and when they tried to wean him from the respirator, he was transferred to a long-term intensive care facility. The father died of respiratory failure, renal failure, and cardiac arrhythmia. The organ failure was caused by sepsis, which is an infection of the blood.

Continue reading →

Published on: March 26, 2015

Were Exemplary Damages Appropriate in Texas Forklift Accident Case?

By Carabin Shaw

Exemplary damages (also known as punitive damages) are unusual, but may be awarded in personal injury cases involving gross negligence. In contrast to compensatory damages such as lost wages, medical bills and pain and suffering, exemplary damages are meant to punish a defendant for egregious behavior. In 4Front Engineered Solutions, Inc. v. Rosales, the defendant appealed from a judgment for the plaintiff of over $10 million, including exemplary damages, in a personal injury lawsuit based on a forklift accident.

The defendant was a designer and manufacturer of equipment for loading docks and ran a warehouse in Texas. The warehouse manager hired an electrician to repair the illuminated business sign in the front of the warehouse. The electrician asked the plaintiff, also a licensed electrician, to help him to do this work. The warehouse manager allowed the first electrician to borrow a forklift to get the job done.

On the second day, the first electrician was working on the forklift, moving it back and forth so the plaintiff standing on a platform could reach the electrical connections. A forklift’s wheel rolled off the sidewalk. The forklift tipped and caused the plaintiff to fall 25 feet to the ground. He suffered injuries to his spinal cord, brain, hip and leg.

Continue reading →

Published on: March 16, 2015

Texas Court Affirms Judgment for Traumatic Brain Injury Plaintiff

By Carabin Shaw

In the recent case West Star Transportation Inc. v. Robison, a Texas appellate court considered a personal injury case in which the defendant appealed a judgment for the plaintiffs for damages totaling more than $5 million. The plaintiff had suffered a traumatic head injury after falling headfirst from a flatbed trailer that he was trying to cover in the shipping yard of the defendant, a company that was his employer. The defendant was a nonsubscriber under the Texas Workers’ Compensation Act.

The load was an uneven load that included crates of different heights, and it was 13 feet off the ground at its highest point. The defendant didn’t own the equipment needed to complete the task. A tarpaulin that weighed 150 pounds had to be placed at the highest point using a forklift. The plaintiff was also lifted to that point. The reason for the fall was unclear, but he fell while he was standing on the surface of a load, and because of the fall he suffered a traumatic brain injury.

The plaintiff and his wife sued, alleging that the defendant was negligent for failing to give the plaintiff a reasonably safe workplace. The plaintiffs offered to settle their claims to the limits of the defendant’s insurance policy via letters. The defendant tried to accept the settlement offer orally and via letter after the deadline passed. The plaintiffs believed the deadline had passed and rejected the offer in the letter. The defendant filed an amended answer and counterclaim, alleging that the case was settled.

Continue reading →

Published on: March 16, 2015

Expert Reports in Texas Medical Malpractice Lawsuits

By Carabin Shaw

In Columbia North Hills Hospital, Subsidiary LP v. Tucker, a defendant appealed the court’s denial of its motion to dismiss. The case arose when the plaintiff checked into the hospital with serious abdominal pain. Although she was discharged, she returned the same day and had to have a surgery. After surgery, she was transferred to a room with a note on her patient care plan saying that she had a high risk to fall. When she went to use the restroom three days later, she fell and a nurse found her on the restroom floor. She was discharged from the hospital, even though the injuries from the fall were serious, and she had to undergo surgeries to her back and neck because of them.

She sued the hospital and other defendants, alleging negligence and gross negligence. She attached a Nurse Dexter’s report to her petition. The defendants objected. She also served an expert report by Larry Kjeldgaard, but this report was late. She also amended her pleadings so that her suit would proceed only against the hospital.

The hospital moved to dismiss her case on the grounds that the Dexter report didn’t satisfy the legal requirements of § 74.351(a) for an expert report and that the other report was late. The trial judge sustained the defendant’s objections to the Dexter report but allowed the plaintiff to file a compliant report. She filed an amended pleading to which she attached reports from both experts.

Continue reading →

Published on: March 16, 2015

Texas Supreme Court Reconsiders Ban on Seat-Belt Evidence

By Carabin Shaw

Over the past 40 years, evidence of a plaintiff’s failure to use a seat belt was inadmissible in Texas car accident lawsuits because, even though it could exacerbate the plaintiff’s injuries, it could not, in and of itself, cause a car accident. This rule was a way of protecting plaintiffs from the all-or-nothing effect of the contributory negligence doctrine. Under the contributory negligence doctrine, a plaintiff who was 1% or more at fault for an accident could not recover any compensation from the defendant. The rule originated with case law and was codified, and then the statute was repealed in 2003. In spite of the legislative repeal of the rule, the rule making seat-belt evidence inadmissible still stood, since the case law was still in effect.

In the recent, important ruling in Nabors Well Services, Ltd. v. Romero, the Texas Supreme Court reconsidered the rule banning seat-belt evidence. The case arose when a transport truck collided with a Chevrolet Suburban carrying eight passengers, including three adults and five children who were part of two families. When the transport truck slowed, the driver of the Suburban pulled into the opposite traffic lane and tried to pass. While the Suburban passed, the truck made a left turn and hit the Suburban, which rolled several times and killed an adult passenger and hurt the rest of the people in the car. There was conflicting evidence about who was belted into their seats. All of the occupants were ejected except the driver and one of the children.

The two families sued the transport truck company and its driver. At trial, the truck company tried to introduce expert testimony from a biomechanical engineer that seven out of the eight Suburban occupants were unbelted and that this failure caused their injuries and the fatality. The truck company also wanted to introduce a citation issued to the driver for failing to properly restrain child passengers.

Continue reading →

Published on: March 16, 2015

Statute of Limitations Bars Texas Failure to Diagnose Cancer Case

By Carabin Shaw

Texas Civil Practice and Remedies Code section 74.251 sets forth the statute of limitations on health care liability claims. The limitations period is measured from the occurrence of the breach or tort, or the last date of treatment, or the last date of relevant hospitalization. The plaintiff can’t choose the date most favorable to him or herself. Instead, the limitations period begins to run on the date of the breach if it was ascertainable. At that point, the plaintiff needs to give written notice of the claim to a doctor at least 60 days before filing a complaint.

In Estate of Klovenski v. Kapoor, an appellate court considered a failure to diagnose cancer case. The plaintiffs brought wrongful death and survival claims against the defendant doctor on the grounds that the doctor failed to diagnose cancer in the decedent.

The decedent had complained to the doctor about a mass in her left thigh in 2006 and was told it was not problematic and didn’t require medical care. When the decedent continued to experience pain, she complained again and again, but the doctor told her she didn’t have anything to worry about. Another doctor eventually determined that the mass was cancerous, and the decedent died in the summer of 2007. Her survivors asserted that the doctor had been negligent in failing to diagnose cancer and treat the decedent and that this failure caused her death.

Continue reading →

Published on: March 16, 2015

No Constructive Notice in Texas Slip and Fall Case

By Carabin Shaw

In Young v. Wal-Mart Stores Texas, LLC, a plaintiff appealed the trial court’s grant of summary judgment in a slip and fall case. The case arose when the plaintiff went through the self-checkout lane to buy ice cream. While leaving, she slipped in clear liquid and hurt her knee, ankle and hip. A cashier came over and asked if she was all right and left to get paper towels. The plaintiff wasn’t sure how much water she had slipped on, but later testified it took the cashier two trips to get enough paper towels to mop it up. After falling, the plaintiff talked to employees that came up to her.

She said that none of the employees said they knew there was a water puddle on the floor before she fell. The ambulance took her to the hospital. Later, the cashier testified that she was working in the self-checkout area for half an hour before the plaintiff fell. She said that she glimpsed the accident from the corner of her eye and then saw the plaintiff on the floor. The cashier went over to help the plaintiff and saw a puddle of water six inches in diameter. She had a paper towel in her hand and wiped up the puddle with the towel. The cashier said she hadn’t seen a substance there before the fall and didn’t know how long it was there, though she didn’t think it was there long because she had been walking around in that location and would have cleaned it if she had seen it.

The plaintiff sued the store for premises liability. The store filed a motion for traditional and no-evidence summary judgment, arguing that there wasn’t any evidence it knew or should have known about the dangerous condition. The store attached the plaintiff’s deposition as evidence and the plaintiff responded with both her deposition transcript and the cashier’s. The trial court granted the motion and rendered a take-nothing judgment.

Continue reading →

Published on: February 21, 2015

Is A Texas Hospital Slip and Fall a Healthcare Liability Claim?

By Carabin Shaw

In East El Paso Physicians Medical Center, LLC v. Olivia Vargas, an 81-year-old plaintiff who used a walker claimed she was injured when she went to a hospital facility. As she left the building, the automatic doors closed on her walker, and she fell and suffered a shoulder injury. She sued the hospital, arguing that the hospital had failed to correct a dangerous condition, failed to warn her about the dangerous condition, and failed to set and enforce appropriate safety standards.

The hospital moved to dismiss. It argued that the claim was a health care liability claim under the Texas Medical Liability Act (“the Act”). Under the Act, the plaintiff had to submit an expert report showing causation within 120 days of filing a health care liability claim. The hospital argued the plaintiff’s failure to file an expert report required that her case be dismissed. The trial court denied the motion to dismiss. The hospital appealed.

The hospital argued that the trial court had erred in denying its motion because the plaintiff’s allegations related to state regulations controlling hospital construction. It further argued that the plaintiff had not filed an ordinary premises liability claim, but a claim based on the standards that a hospital had to meet to offer health care services in Texas. The appellate court found that this argument didn’t sufficiently distinguish between the current case and other premises liability cases to bring the plaintiff’s claim within the requirements of the Act. Continue reading →

Published on: January 26, 2015

WEDGWOOD FIRE UPDATE

By Carabin Shaw

WEDGWOOD FIRE UPDATE

It is now understood that the fire loss that occurred at Wedgwood Apartments on December 28, 2014, will go down in history as one of 20 worst high-rise fire tragedies in U.S. History.

We now also understand that the extent of the injuries and death at Wedgwood could have been avoided, if specific and somewhat relatively basic precautions would have been made, by management or the owners of Wedgwood.

Continue reading →

Texas Injury Lawyer Blog