Texas Injury Lawyers Blog

Published on: December 23, 2014

Liability Exception Under Chapter 95 in Texas

Under Chapter 95 of the Texas Civil Practice and Remedies Code, property owners will not be liable when a contractor or a subcontractor or its employee is hurt on a property owner’s property while performing repairs or construction. A property owner under the chapter is someone who owns real property that is primarily used for commercial or business purposes. The exception is when a property owner exercises or keeps control over the manner in which the work was performed, and the property owner had actual knowledge of the danger or condition resulting in the injury. At trial, a property owner will have to show that chapter 95 applies to the case.

In Rosa v. Mestena Operating LLC, a man and his wife sued a property owner for negligence and premises liability after the man suffered an on-the-job injury. The accident happened when the man was hurt at work while performing maintenance on electrical poles for his employer, a maintenance company. A utility company had an easement on the property and contracted with a maintenance company to perform maintenance on the poles.

The defendant, Mestena Operating LLC, was an operator of oil and gas wells that had a mineral lease on the property where the electrical poles were located. There was no contractual relationship between Mestena and the man’s employer. The plaintiffs claimed that the man had contacted an energized ground wire and suffered electric shock on the job. The ground wire was linked to equipment on the mineral lease. The plaintiffs theorized that the Mestena equipment, which was about 1,400 feet from the place where the plaintiff was located, had malfunctioned, causing the ground wire to be energized. The plaintiffs argued that Mestena knew or should have known about the danger of the ground wire. Continue reading →

Published on: December 16, 2014

Damages in Texas Wrongful Death Case

By Carabin Shaw

In Texas, the surviving spouse, children, or parents of a deceased person can file a wrongful death lawsuit against a person or entity whose wrongful act or negligence caused the death. One of them can file the claim as an individual, or they can file together as a group. If none of them files the claim within three months of the death, a representative or executor of the deceased’s estate can file the claim unless the family member asks that it not be filed. Texas doesn’t permit surviving siblings to file a wrongful death lawsuit for a sibling’s loss. Unlike criminal charges brought in connection with the same death, liability in a wrongful death suit is expressed solely in monetary damages.

The family members or estate can recover damages, including lost earning capacity, lost inheritance, lost love and companionship, lost earning capacity, lost services and counsel that would have been given by the deceased person, mental anguish, and pain and suffering. Punitive or exemplary damages may also be recovered in order to punish a wrongdoer. The damages will be divided among the surviving family members in proportion to their degree of injury as a result of the death. For example, a surviving spouse who was close to the decedent would likely be entitled to a greater share than a child who was estranged from the decedent for years before the death.

In a recent Texas appellate case, Badall v. Durgapersad, a man shot his victim in a tire shop he owned. The victim died in the hospital the next day, and the man was charged with murder and convicted. He appealed, but the appellate court affirmed his conviction. The victim’s family sued the man for wrongful death, claiming various damages including medical bills, funeral expenses, lost earning capacity, pain and suffering, mental anguish, loss of consortium, lost earning capacity, punitive damages, and lost inheritance and interest. They moved for summary judgment. Continue reading →

Published on: December 11, 2014

Requirement of Expert Report in Texas Medical Negligence Cases

By Carabin Shaw

In Methodist Health Centers v. Crawford, a Texas woman’s son and daughter sued a health center for medical malpractice in connection with its care of their mother. The mother was admitted to a nursing facility with a history of diabetes and dementia. She had a pressure ulcer on her back and needed a feeding tube. A month later, she was transferred to the defendant’s hospital for treatment of her urinary tract infection and vomiting. She also had another pressure sore on her hip. A few days later, the pressure ulcers had gotten worse. She was discharged back to the nursing facility. A few months later she again had vomiting, a fever, and shortness of breath and was transferred back to the hospital.

Her condition deteriorated in spite of antibiotics and other treatment. She died of pneumonia, infection, and respiratory failure a few days later. Her son and daughter sued the medical and nursing facilities, both individually and as the woman’s heirs. They attached a doctor’s expert report and CV to the petition, as required by Texas law. They settled with the nursing facility, but the hospital moved to dismiss for failure to serve an adequate expert report. The trial court denied the motion to dismiss.

Under Texas law, a plaintiff must serve a defendant with an expert report, along with a CV of the experts listed in the report. An expert is only qualified to offer an opinion on whether the health care provider deviated from the standard of care if the person practices health care in the same field as the defendant, knows the accepted standard of care for the provider, and is qualified due to training or experience to offer an expert opinion about the standard of care. If a doctor doesn’t state in the expert report that he or she has knowledge of the standard of care, the court will find he or she is not qualified to offer an opinion. Continue reading →

Published on: December 11, 2014

When Can A Nonparty to A Texas Contract Be Compelled to Arbitrate a Personal Injury Case?

By Carabin Shaw

In ENGlobal U.S. Inc. v. Gatlin, a Texas appellate court was asked to decide whether a party to a contract with an arbitration clause could compel arbitration of a personal injury claim by a nonparty to the contract under the doctrine of “direct benefits estoppel.” The case arose from Phillips 66’s ownership and operation of an oil refinery. The operator of the refinery had contracted with Clean Harbor, an industrial service contractor, to clean oil storage tanks at the refinery.

An employee of the industrial service contractor was working as a hydroblaster at the refinery. While working, the lanyard on his safety harness got caught in the walkway, resulting in his fall and back injury.

When the accident happened, ENGlobal was a contractor that performed engineering for Phillips 66. Their relationship was governed by a master service agreement that included an arbitration provision. The employee had not signed this agreement, and he sued Phillips 66, ENGLobal, and another company in order to recover damages. He alleged negligent undertaking and premises liability. Continue reading →

Published on: December 11, 2014

Assumption of the Risk in Texas

By Carabin Shaw

In Texas, the defense of assumption of the risk is part of the general defense of comparative negligence. Those who participate in dangerous activities for sport or fun should be aware of this potential defense should something go wrong. Assumption of the risk arises when a plaintiff knowingly and voluntarily assumes a risk of harm from a defendant’s actions. The defendant will need to show the plaintiff had actual knowledge of the risk, the plaintiff accepted the risk, and the nature of the conduct was inherently dangerous. This doctrine can arise in connection with activities such as scuba diving, rodeos, and high-contact sports.

In DeWolf v. Kohler, a woman brought a Texas wrongful death lawsuit against multiple defendants associated with a scuba diving accident. The decedent was scuba diving with a group at a shipwreck off the coast of Massachusetts. On the second day of the trip, the man was seen going into the water but never resurfaced. Only after hours of searching was the man’s body found on the ocean floor. The local medical examiner determined the cause of death was drowning, pending further study. After an autopsy, however, the cause of death was listed as myocarditis, a natural cause.

The man’s wife sued numerous defendants for wrongful death, including the dive boat, the individual who chartered it for the expedition, the network that had carried a television show with the individual who chartered the expedition. the company that trained the decedent to dive and gave him credentials, and the scuba equipment manufacturer. The boat didn’t answer the suit and was dismissed by the court. The network contested jurisdiction, and the court agreed. The dive training company filed a motion for summary judgment that was granted. The equipment manufacturer filed a motion for summary judgment that was initially denied but later reconsidered. The case proceeded to trial against the individual who had appeared on television and organized the expedition. Continue reading →

Published on: December 11, 2014

Wrongful Death on the Job in Texas

By Carabin Shaw

Most of the time, the only recourse for survivors of a family member who dies because of a job are workers’ compensation benefits. However, when an employer shows gross negligence and an employee dies, the rules are different. In Garay v. GR Birdwell, the decedent’s surviving spouse and a representative of the decedent’s minor child sued the decedent’s employer for wrongful death after the decedent died while operating a trench roller. The accident happened while the decedent was working on his employer’s behalf at a construction site.

The employer was completing construction of a concrete wall, and the decedent operated a trench compactor on the employer’s behalf. He had worked for the employer for five years without any accidents. Usually, workers used a remote control with the trench roller, but according to another employee, the decedent said the remote control wasn’t working, even though he was able to use it earlier in the day. Therefore, the decedent manually operated the roller. Another employee had manually operated it the same way many times before.

While operating the roller, the decedent stood at a pinch point between the roller and the wall. The roller pinned him there. His coworkers tried to get him out, but he already had suffered serious injuries and died there. Continue reading →

Published on: December 11, 2014

Texas Appellate Court Affirms Jury Verdict in Defective Design Case

By Carabin Shaw

In re Zimmer, Inc., a recent Texas appellate decision, considered a product liability lawsuit brought by a plaintiff. The plaintiff argued he was hurt because of the Zimmer Periarticular Distal Medial Tibial Locking Plate, a metal plate used to provide internal stabilization when a patient has serious fractures in his or her lower leg. The plaintiff argued the metal plate had design defects. The plate was first placed in the plaintiff’s leg after a motorcycle accident. It failed within about a year. A second plate was implanted and also failed within about a year. The plaintiff sued the manufacturer, claiming he was permanently disabled because the two implants had failed.

The jury was selected after jurors answered a written questionnaire that asked if jurors had ever had a serious physical injury. The defense attorney also questioned the jury about the experience their family members might have had with injuries. Neither the plaintiff nor the defendant challenged a juror for cause based on an answer related to injuries. One juror who was seated had responded “none” to the question about physical injuries.

The jury found for the defendant Zimmer. The juror who had responded “none” had voted for the defendant. The plaintiff moved for a new trial, claiming misconduct by the jury and arguing that the verdict went against the weight of the evidence. He submitted affidavits from the jurors who dissented. These detailed incidents of alleged juror misconduct. Zimmer responded but didn’t offer counter affidavits.

Continue reading →

Published on: November 3, 2014

City Immune from Liability for Texas Swimming Pool Accident Lawsuit

By Carabin Shaw

Recently the appellate court heard Henry et al v. City of Angleton, an accelerated appeal from the trial court granting the city defendant’s plea to the jurisdiction. The case arose when a mother sued the city after her 11-year-old died from the complications of nearly drowning in a swimming pool that the city owned. The swimming pool was at a recreation center that consisted of a fitness facility, gym, and meeting rooms, in addition to the pool.

The pool was both an indoor and outdoor pool and had slides and a lazy river. The mother had taken her four kids to the pool to swim. The 11-year-old was seen lying face down in the water at some point. Lifeguards pulled her out and tried to resuscitate her. She died seven days later from complications of nearly drowning. The video showed her face-down for seven minutes before the lifeguard acted.

The mother sued on behalf of her daughter’s estate, as next friend of her three other children, and as herself individually to recover wrongful death survival and bystander damages. She argued that the City’s operation of the swimming pool was a “proprietary function” because it included amusement features like slides and the lazy river. She also sued for negligence, gross negligence, and premises defect. Continue reading →

Published on: October 21, 2014

Texas Supreme Court Rules on Causation Issue in Mesothelioma Case

By Carabin Shaw

This summer, in an important case for those who have been diagnosed with mesothelioma and their family members, Bostic v. Georgia-Pacific Corporation, the Texas Supreme Court addressed causation in asbestos-disease lawsuits. The plaintiffs had sued for damages after the death of 40-year-old Timothy Bostic due to mesothelioma. Asbestos can cause mesothelioma. His relatives sued 40 defendants, claiming that exposure to their asbestos-containing products exposed him to asbestos, causing his mesothelioma. They sued on the basis of negligence and products liability. The defendant at issue in the appeal was Georgia-Pacific, which had produced drywall compound that the decedent had been exposed to as a child and teenager.

At trial, the jury found the drywall manufacturer and two other defendants liable, including a glass company and a former employer of the plaintiff. 75% liability was allocated to the manufacturer. The total damages were $6.8 million with $4.8 million in punitive damages. On appeal, the appellate court decided that the evidence of causation in the case was not sufficient, and a take-nothing judgment was rendered.

The plaintiffs asked the Court to review. The Court explained that in an earlier case it had held that to establish causation, the plaintiff had to prove the defendant’s product was a substantial factor in causing an asbestos-related disease, and just showing that a plaintiff was exposed to some respirable asbestos fibers traced to the defendant was not enough. The exposure to the defendant’s product had to be considered a substantial factor in causing the asbestos-related disease. The Court concluded there had to be reasonable evidence that the exposure was enough to exceed the threshold before it was considered likely to have caused the disease. Continue reading →

Published on: October 15, 2014

Husband Misses Statute of Limitations for Medical Malpractice Claim

By Carabin Shaw

Failure to file a medical malpractice claim within the time limits can result in your claim being barred. In the recent case of Gale v. Lucio, a doctor and wellness center appealed on the issue of whether the plaintiff could invoke the open courts provision of the state constitution to toll the statute of limitations in a wrongful death and survival claim brought by his wife.

The plaintiff’s wife was a patient of the doctor and wellness center. The wife visited the doctor in order to get her blood pressure checked. The doctor ordered a chest x-ray, which revealed she had a density in her left lung base. A mammogram and CT scan were ordered. The scan showed a wedge-shaped mass on the woman’s left lung, but the plaintiff claimed the wife and he were never informed of the results. The doctor said her office called and mailed the results.

The wife came back for routine appointments and claimed she had a cough. The doctor ordered another chest x-ray that showed a new growth on her lung. After that, the wife was diagnosed with stage IV metastatic lung cancer. The couple sued the doctor for medical malpractice, claiming that the doctor had failed to report the abnormal CT scan to her in a timely fashion and to refer her to a pulmonologist, which caused a delay in her diagnosis. Continue reading →

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