Texas Injury Lawyers Blog

Published on: August 17, 2016

Evidence for Noneconomic Damages in a Texas Truck Accident Case

In Swearinger v. Guajardo, the plaintiff was hurt when a truck driven by the defendant and owned by United Van Lines hit his car. The plaintiff sued the defendant for negligence and brought in the defendant’s employer under a theory of respondeat superior and negligent entrustment.

The jury found the defendant employee negligent and awarded the plaintiff damages for past physical pain and mental anguish, future physical pain and mental anguish, and past and future physical impairment. The defendant and his employer filed a motion for a new trial, which was denied.

The defendant and the employer appealed, arguing that the evidence was insufficient to support the jury’s damages award. The appellate court explained that it would sustain a no-evidence challenge on appeal when there is no evidence or only a scintilla of evidence to support a vital fact, the court is barred from giving weight to that evidence, or it conclusively establishes the opposite of the vital fact.

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Published on: August 17, 2016

Common Links to More and More Trucking Accidents

By Carabin Shaw

Common Links to More and More Trucking Accidents

For more information about common links and the underlying causes of accidents involving 18 wheelers call Carabin Shaw at 1-800-862-1260. The call is free, the consultation is free.

With a 20% increase in trucking accidents over the last two decades according to the Federal Motor Carrier Safety Administration (FMSCA), there are more and more trucking accidents occurring across Texas.

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Published on: July 27, 2016

Gross Negligence in a Texas Truck Accident Case

By Carabin Shaw

In the 2016 case of Rayner v. Dillon, a Texas Court of Appeals considered a truck accident case involving the long-haul driver of a tractor-trailer rig who had years of gaps and mistakes in his required driving logs. The driver had 30 years of experience as of the date of the accident, and he was hired by his employer three years before the accident.

The case arose when the truck driver hit the left-rear of a woman’s car on I-30 after changing from the center to the right lane. The woman initially refused medical care but went to the ER that night, complaining about pain in her head, neck, and lower back. She eventually had an anterior cervical discectomy and other spinal surgeries. She sued the truck driver and his employer for personal injuries. The driver argued that she was in his blind spot. He had received a citation for changing lanes unsafely.

In order to recover exemplary damages, a plaintiff must prove gross negligence by the defendant. The plaintiff in the current case presented evidence to support a claim of gross negligence. This evidence included the driver’s repeated falsification of his log book, admissions by the employer that the driver was the second-worst perpetrator of log book violations among its employee drivers but was not terminated, and 48 safety-related violations by the employer’s drivers in April 2010, among other egregious actions. The plaintiff was awarded over $1 million in compensatory damages as well as exemplary damages of $2,000 against the driver and more than $1 million against the driver’s employer. The jury found gross negligence by both the driver and the employer.

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Published on: July 21, 2016

Inconsistent Testimony Leads to Texas Personal Injury Plaintiff’s Loss

By Carabin Shaw

In Imamovic v. Milstead, a Texas appellate court considered a rear-ending case in which the jury awarded zero damages. The case arose when the 42-year-old plaintiff was working as a vehicle-for-hire inspector for a city, traveling around the city to inspect cabs, limos, and buses. While she was stopped in her Prius at a red light, a truck struck her car from behind. She claimed the force caused her to want to black out. Later, an investigator concluded that both her car and the truck were stopped at a red light when the truck moved and hit the back of the car.

When the police responded to the scene, the plaintiff told them she didn’t need medical care, and she drove away in her Prius. She woke up feeling sore, and the day after that, the pain in her neck was unbearable. She made an appointment with a doctor who worked for her primary medical provider. He prescribed her pain medication and anti-inflammatories and ordered x-rays. The plaintiff claimed the doctor ordered physical therapy, but the doctor didn’t note this order.

The doctor’s notes said he put the plaintiff on light transitional duty and told her to come back for follow-up. She went to physical therapy but didn’t go back to work and waited two months before coming back to see the doctor. Her excuse when testifying was that she didn’t think the doctor would do anything for her, and she didn’t control when the medical center scheduled its appointments. Continue reading →

Published on: July 15, 2016

Designation of a Responsible Third Party in Texas Wrongful Death Lawsuit

By Carabin Shaw

In re CVR Energy, Inc. is a 2016 Texas wrongful death case in which the defendants tried to designate a former codefendant as a responsible third party. Two men, Billy Smith and Russell Mann, were killed in a refinery explosion while they were trying to restart the pilot light in an old boiler. They were employed by Wynnewood, a wholly-owned subsidiary of CVR refinery. The boiler was not equipped with a system that would allow it to be restarted from a remote site. Wynnewood had rejected proposals for a system of this sort, and according to the plaintiffs it had actual knowledge that the boiler had previously detonated and injured workers.

The family of the deceased sued Wynnewood and CVR. Among other things, they alleged that CVR as Wynnewood’s parent company had been negligent and grossly negligent by failing to install a boiler management system and failing to install controls on all heating equipment, among other things. They served requests for disclosure on CVR while Wynnewood was still in the lawsuit, asking CVR to name any responsible third parties. Under Rule 194, a party can obtain disclosure of identifying information for anyone that could be designated a responsible third party. However, CVR did not list its codefendant as a responsible third party in its response.

The plaintiffs had nonsuited (dismissed) Wynnewood Refining Company less than 60 days before trial, after the statute of limitations had run. The remaining defendants filed a motion to designate Wynnewood as a responsible third party, but the court denied this motion.

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Published on: July 13, 2016

Jones Act Claims in Texas

By Carabin Shaw

Seamen injured on the job are not entitled to file workers’ compensation claims. Under the federal Jones Act, they have the right to sue their employer for personal injury damages. The burden for proving that a defendant’s negligence was the legal cause of a plaintiff’s injuries is lower, however, than it is in a standard personal injury case.

In Vo v. Ho Kim Doan, a Texas court considered a case brought under the Jones Act. The plaintiff worked on board the Larry Vo when shrimp season began in 2006. On the day of the accident, shrimp nets were being pulled up when a rope got stuck in the pulley and broke, causing the turtle head to fall and strike the plaintiff. A turtle head is a device that permits a sea turtle to escape from the shrimp net. The plaintiff lost consciousness and later sued for injuries, including a permanently disfigured finger and various problems with his neck, head, and back.

The boat came to port, and the plaintiff saw a doctor. He was given medication and $500. He sued various Vo family members. Various members of the Vo family testified later that they saw the plaintiff walking normally just a few days after the return of the boat. One of them also testified someone couldn’t survive if the turtle head fell directly on him. The plaintiff’s treating physician later testified that the injuries suffered by the plaintiff were consistent with a heavy object hitting him in the back of the head.

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Published on: July 7, 2016

Wrongful Death as a Result of a Flooded River in Texas

By Carabin Shaw

In Walker v. UME, Inc., a Texas Court of Appeals considered a case in which the trial court had entered summary judgment in favor of the defendants in a wrongful death case. The case arose in 2010, when two couples, the Walkers and the Johnsons, drove to Camp Huaco Springs for a weekend of camping and river rafting. They parked in two spots that they were assigned. On Saturday, they went on a canoe trip on the river and toured caverns. They went back to the campsite and went to bed in their RV campers. It was not raining at that time.

The couples hadn’t realized that there was a forecast of heavy rain. Cynthia Walker woke at around 6:00 a.m. There was thunder and lightning, and Terry Johnson (Cynthia’s brother) was screaming that they needed to leave. She realized that the river had risen overnight. The campers were floating. The two couples were swept down the river in the flood. Norman Walker died in the flood. His wife and the Johnsons were rescued but required medical care.

Cynthia Walker and others filed a lawsuit for premises liability and negligence against UME, Inc., which was doing business as Camp Huaco Springs, and WWGAF, which was doing business as Rockin ‘R River Rides and the Rivers brothers. The plaintiffs claimed WWGAF was a joint enterprise with UME and that it was the alter ego of the Rivers brothers. They also claimed that the defendants were aware that floods were likely at the campground, and they should have provided storm warnings and planned for flood awareness. They argued that the defendants should have used sirens to warn them and hired someone to evacuate guests and educate them about risks.

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Published on: July 7, 2016

Negligent Servicing Claim in Texas

By Carabin Shaw

In Iacono v. Stanley Black & Decker, a Texas product liability plaintiff appealed from a summary judgment motion brought by the defendant manufacturer. The case arose from injuries sustained in connection with the defendants’ automatic sliding glass doors at a hotel. The doors operate by using a controller. Three sensors located above and on each side of the door detect motion in order for the doors to open. A threshold sensor is located in the frame above the door. The latest date of installation of the doors in this case was early 1995. The hotel’s safety assurance manager testified that the hotel performed the service for the doors once they were installed, and they had been serviced twice since 1995, with replacement of certain parts.

The plaintiff went to a wedding at the hotel in 2013. As she came out with her walker, the automatic door closed on her. She fell and was injured. She sued the manufacturer on the grounds of negligence, product liability, breach of warranty, and gross negligence. The manufacturer claimed that the plaintiff’s suit was barred by the statute of limitations and the statute of repose, and it moved for partial summary judgment.

The plaintiff filed an amended complaint and summary judgment response. She argued that her negligence claims were based on the manufacturer’s acts and omissions in service call years, so they weren’t barred by the statute of repose. She also claimed her negligence cause of action wasn’t barred by the statute of limitations. However, the trial court granted the partial summary judgment motion. The manufacturer then filed a final summary judgment motion, arguing that all that was left were product liability claims based on the motion sensors, which were manufactured by a separate company, and that since it was a non-manufacturing seller, it could not be liable. This motion also was granted.

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Published on: July 7, 2016

Texas Bicycle Accident Caused by a Dog

By Carabin Shaw

In Ochoa-Cronfel v. Murray, a Texas appellate court considered a personal injury case in which the plaintiff was hurt after the defendant’s dog ran into his bicycle. The case arose when the plaintiff was biking in his neighborhood. The defendant was walking his dog and put the dog’s leash under his foot while he scooped up the dog’s waste. The dog broke free and ran into the front tire of the plaintiff’s bike. The plaintiff was thrown off the bike and hurt his arm. He sued the defendant for damages.

The trial lasted three days, after which the jury found that both the plaintiff and the defendant were negligent. They allocated 55% responsibility to the defendant and 45% to the plaintiff. The judge entered judgment on the verdict and awarded the plaintiff $10,089.75, which was 55% of the damages assessed by the jury.

The plaintiff appealed, arguing that the evidence was insufficient to support the jury’s finding that his negligence was a legal cause of the injury and that the evidence was not sufficient to support the amount awarded for each element of the damages. The judge had ordered the plaintiff to pay $5,000 in sanctions, and the plaintiff argued this was an abuse of discretion.

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Published on: June 12, 2016

Statute of Limitations and Service of Process in Texas Personal Injury Cases

By Carabin Shaw

In Shaw v. Lynch, a police sergeant alleged that he’d responded to a report that the defendant was recklessly driving an ATV through the neighborhood. He came to the scene, and then the defendant gunned the engine of the ATV and purposefully drove the ATV over the police sergeant. The police sergeant claimed this caused him severe leg injuries and other injuries, and he sued the ATV driver.

The ATV driver denied the allegations in the complaint and moved for summary judgment. He argued that the plaintiff hadn’t actually served him with the complaint until after the two-year statute of limitations that applied to personal injury lawsuits had expired. He argued that there was no proof the plaintiff showed due diligence in serving him, and he had instead delayed two months. In addition to attaching proofs of service and citation, the defendant also attached a judgment that was entered against him in the related criminal action.

The plaintiff argued that the district clerk had caused the delay and that he’d been duly diligent. His attorney submitted an affidavit that he’d expected service on the defendant within a week or two, but a month passed before a return of service or answer was filed, and he’d had to straighten things out with the process server. The process server had also submitted an affidavit noting that it accepted assignments throughout the state and in this case had been unsuccessful in subcontracting the particular assignment.

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