Personal Injury

Published on: July 29, 2021

Court Finds Texas Has Jurisdiction to Hear Products Liability Lawsuit

The Supreme Court of Texas recently issued an opinion in a lawsuit against an insulation products company. According to the court’s opinion, the plaintiffs built a home in Texas and purchased products from a spray foam insulation company. The insulation was designed to make the home quieter and energy efficient by sealing areas where air loss occurs. Shortly after the installation, the family began suffering from various ailments, including coughing spells, burning eyes, allergies, and headaches. The company advised the family that the spray foam smell would dissipate over time. The company then sent an “independent contractor” sales representative to inspect the property; however, the family never received the inspection results.

In response, the family filed a lawsuit against the spray foam company, alleging various claims, including products liability and negligence. They argued that their injuries arose from the sale and installation of the spray foam used in their home. In response, the company contended that because the company never sold or advertised any of the products in Texas, the state did not have jurisdiction over the matter. Further, they argued that they did not have any involvement with the company that inspected the property. The appeals court agreed, finding that the plaintiffs failed to establish that Texas had either general or specific personal jurisdiction over the defendants.

Under Texas law, a court must have subject matter and personal jurisdiction over the parties to issue a judgment. Texas courts can assert personal jurisdiction over a nonresident if the state’s long-arm statute permits exercising jurisdiction and comports with federal due-process guarantees. Specific jurisdiction applies when the defendant’s contact with the state is purposeful, and the cause of action arises from those contacts.

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Published on: June 17, 2021

Court Permits Defense to Request Healthcare Billing Records in Texas Car Accident Lawsuit

By Carabin Shaw

CS-San-Antonio-9-300x300 The Supreme Court of Texas recently issued an opinion finding that a trial court abused its discretion in denying a defendant’s discovery request. The case arose after the plaintiff suffered injuries in a Texas car accident with a tractor-trailer driven by the defendant’s employee. After the accident, the parties took photos, exchanged identifying information, and drove away without reporting injuries. A few days after the accident, the plaintiff sought medical treatment and underwent several surgeries on his spine and shoulder. His medical providers charged him over one million dollars for the surgeries and treatment. The plaintiff did not pay for the care. His attorneys notified the healthcare providers that they would protect the healthcare providers’ interest if they settled the underlying personal injury lawsuit. However, they specified the settlement would only include reasonable and necessary medical charges.

During the trial, the defendants served subpoenas on the plaintiff’s healthcare providers. Specifically, they wanted information related to the providers’ billing practices and rates. Three of the providers filed motions to quash the subpoenas, and the trial court granted the motions. The defendant narrowed the requests, but the healthcare providers responded that the narrowed requests contained the same defects.

Under the rules of evidence, evidence is “relevant” if it has “any tendency” to make a fact more or less probable. For pre-trial discovery, evidence that may not be admissible at trial may still be permitted, so long as it’s “reasonably calculated to lead to the discovery of admissible evidence.” In the context of personal injury lawsuits, medical records and bills reasonably related to a party’s injuries or damages are typically relevant.

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Published on: June 9, 2021

Court Finds Volunteers in Texas Church Fire Accident Were Licensees, Not Invitees

By Carabin Shaw

The Supreme Court of Texas recently issued an opinion in a premises liability case involving teenage church volunteers who suffered injuries in a fire. The church hosted an annual festival featuring rides, games, music, and vendors—the church profits from the festival from receiving a portion of the sales from vendors and sales. The 4-H Leaders Association (4-H) rented a booth at the festival to sell various food items. 4-H paid the church to rent the booth, but the church did not receive any profits from the booth’s sales. According to the record, a fire broke out in the booth, and five volunteers, four of whom were teenagers, suffered injuries in the fire.

The trial primarily hinged on the cause of the fire, the plaintiffs arguing that it stemmed from a defective propane tank, while 4-H and the church argued that it was from one of the volunteers spilling ice into a fryer. The trial court found in favor of the defendants, and the appellate court affirmed in part and reversed in part. The appellate court found that the plaintiffs did not have a claim against 4-H but remanded the case against the church for a new trial.

Under Texas law, a property owner or occupier’s duty to someone on their property depends on the person’s status. Typically, property owners owe invitees a duty to “exercise reasonable care to protect against unreasonable risk of harm,” that the owner knew or should have known through reasonable diligence. Texas property owners owe licensees a lesser duty to use ordinary care to warn of or make a dangerous condition, that the owner knows of, safe.

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Published on: May 13, 2021

Supreme Court of Texas Upholds $15M Verdict in Product Liability Claim

By Carabin Shaw

activity-board-game-connection-desk-613508-300x200 The Supreme Court of Texas issued a decision in Emerson v. Johnson, upholding a multi-million dollar verdict in a Texas product liability lawsuit. The record indicates that the plaintiff, a highly experienced HVAC repairman, suffered severe burns to over 60% of his body while installing an HVAC unit. After an outdated and malfunctioning compressor in the unit exploded, the unit released scalding hot liquid all over the man. Despite the man’s HVAC experience, there was no way he could have known that the new compressor incorporated outdated technology inside the unit.

The man filed a product liability lawsuit against both the product’s manufacturer and an affiliate who designed and made the unit. He argued that the defendants defectively designed and manufactured the terminal and compressor. After a trial, a jury found that the older terminal design was unreasonably dangerous. The defendant asked the court to overturn the verdict based on legal sufficiency grounds or for a retrial because of a jury charge error.

On appeal to the Supreme Court, the defendants’ case largely rested on their contention that the plaintiff failed to present evidence that the terminal was unreasonably dangerous. A defective design inquiry requires the jury to find that the product is unreasonably dangerous as designed. The jury must consider the utility of the product and the risk of its use.

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Published on: April 13, 2021

Texas Property Owners’ Liability for Employee Contractor Injuries

By Carabin Shaw

collection-of-construction-safety-helmet-38070-300x197 The Supreme Court of Texas recently issued an opinion in a case involving a property owner’s liability for injuries an employee contractor sustained while working on the property. The case arose when the two construction workers suffered injuries while working on a condominium project owned by the defendant. The defendant hired an individual instead of a general contractor to manage the project. A high-voltage power line hung behind the property, and the defendants told the project manager about the line because it was “too close” to the building. The project manager advised the plaintiffs to begin the project even though the power line was still intact. While working on the project, electricity shot down the rebar, and the power line snapped, causing the workers to suffer burns and other serious injuries.

The workers filed a negligence lawsuit against the power company and the defendants. The trial court entered a judgment per a jury finding that the property owner was liable under ordinary-negligence and premises-liability theories.

The defendant appealed, arguing that the employee’s evidence was not legally sufficient under Chapter 95. In response, the plaintiffs argued that the Chapter does not apply, the defendant waived some arguments, and the evidence was legally sufficient. Amongst several issues, the defendant argued that they could not be held liable because the danger was open and obvious. Under Texas law, a danger is open and obvious when the invitee possesses “knowledge and full appreciation” of the hazard’s extent and nature. Typically, when the danger is open and obvious, the property owner does not maintain a duty to warn of the danger or make the premises safe. Inquiries regarding whether a danger is open and obvious are not subjective but rather what a reasonably prudent person would have known. Courts will look to the totality of the “particular circumstances.”

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Published on: April 1, 2021

Are Peloton Treadmills Safe for Texas Consumers?

By Carabin Shaw

During the course of the COVID-19 global pandemic, tens of millions of people across the country experienced moving their work lives, but also their active lives, into their homes and away from typical common spaces such as gyms or exercise studios. As people began both working and attempting to stay active during quarantine and to practice social distancing, demand for at-home exercise options and equipment has been on the rise. But even at home, could these equipment options pose risks to you and your family? Those injured due to a dangerous piece of exercise equipment may be able to pursue a Texas product liability claim against the manufacturer.

According to a recent news article, an accident involving a Peloton treadmill has left a child dead. Although Peloton’s exercise equipment is wildly popular, their products are no exception when it comes to accidents involving children. The CEO of the company recently acknowledged the issue and claimed that the accidents have been confined to only a “small handful of incidents.” To prevent further accidents from taking place, the company is urging Peloton users to adhere to safety warnings, such as keeping exercise equipment in a separate area away from children and storing safety keys away when the equipment is not being used.

Based on a 2020 study from The American Journal of Emergency Medicine, most at-home treadmill injuries take place involving children under 16. In light of the COVID-19 global pandemic, there has been an increase in the number of people purchasing exercise equipment for their homes, but also with children home from school with remote learning. As a result, the risk of an injury involving children and exercise equipment may be amplified because of current conditions involving the pandemic. Common injuries involving treadmills, the study found, usually involve damage to the fingers and hands, such as friction burns.

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Published on: March 23, 2021

Ensuring That Court Procedures Are Followed Could Make or Break Your Texas Personal Injury Lawsuit

By Carabin Shaw

activity-board-game-connection-desk-613508-300x200 Texas has specific procedural requirements that parties must adhere to when they proceed with a lawsuit. If these procedures are not followed and prescribed deadlines are ignored, it could result in your case being dismissed or leave you unable to get the compensation you deserve. Thus, hiring an experienced attorney is crucial when you decide to proceed with a lawsuit—especially someone who understands the ins and outs of Texas laws and procedures.

In a recent Supreme Court of Texas case, a plaintiff challenged a court order allowing the defendant in the dispute to designate an unknown person as a responsible third party. The plaintiff initially sued the defendant for negligently causing a chain-reaction car accident that occurred when a truck driver employed by the defendant rear-ended the truck behind the plaintiff. The defendant initially filed an answer asserting a general denial of responsibility and that the plaintiff was comparatively responsible for causing the accident. Then, 135 days later, the defendant filed a motion to designate an unknown person, referred to as “John Doe” as a responsible third party, arguing that John Doe negligently caused the accident. Although the plaintiff objected to the defendant’s filing, the trial court allowed the defendant to designate John Doe as an unknown responsible party in an amended answer.

More than two years later, the defendant filed its amended original answer, which still did not include allegations of John Doe’s responsibility. The plaintiff objected, stating that the defendant failed to meet the procedural requirements necessary to designate responsibility to John Doe since it was not in the amended complaint the defendant filed. In response, the defendant filed a second amended answer, this time including allegations stating that John Doe caused the accident. The trial court then denied the plaintiff’s summary judgment motion, and the plaintiff filed for relief with the Supreme Court of Texas.

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Published on: March 14, 2021

Texas Mother Dead After Wheel Flies Off Truck

By Carabin Shaw

pexels-antonio-batinić-5364345-300x200 Every time we get behind the wheel in Texas, we must accept a certain level of risk as drivers. Even if we are careful, proactive, and courteous on the road, there is no guarantee that external factors will not cause a car accident. Other drivers, poor weather conditions, or unexpected obstacles on the road can all play a role in the chances of being involved in an accident. Unfortunately, for many of these accidents, there is nothing you can do to prepare outside of staying vigilant and ensuring your vehicle is properly maintained.

According to a local news report, a mother was killed after a tragic and sudden accident. The mother and her 17-year-old son were on their way home from a baseball game and were traveling southbound behind a white pickup truck when the tire and wheel from a pickup truck flew off. The tire and wheel went over the highway’s concrete barrier and smashed into the mother’s windshield, killing her instantly. At the time of the accident, the woman’s son was asleep in the front passenger seat. He was transported to the hospital with serious injuries. After the tire and wheel crashed through the mother’s windshield, she lost control and rear-ended a GMC ahead of her, which had four passengers. All four were transported to a local hospital, reportedly in serious, but stable, condition. The accident remains under investigation by local authorities, and the cause of the tire and wheel falling off is not yet clear.

According to officials, although this accident may seem like a freak accident, these types of collisions are more common than you may expect. Based on 2017 data from the National Highway Traffic Safety Administration, 738 people died in tire-related crashes similar to the accident that took the mother’s life. In addition, more than 19,000 people are hurt every year from these accidents, according to the National Transportation Safety Board. Many of these accidents, however, can be preventable or the impact lessened with some easy steps.

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Published on: March 10, 2021

PANDEMIC INCREASES ABUSE AND NEGLECT OF CHILDREN

By Carabin Shaw

pexels-maria-georgieva-3068579-300x201 The COVID-19 pandemic, which has resulted in economic challenges and substantial job loss, is raising concern for a greater spike in child abuse. Nothing is worse than receiving a call that your child has been injured or abused. It is worse when this call comes from their trusted child’s daycare facility.

If your child reveals something that makes you suspect they’ve been abused either physically or sexually, don’t overreact. Tell them you’re glad they told you about it. The National Center for Missing and Exploited Children (NCMEC) recommends consulting an expert such as a doctor, social worker, or law enforcement officer.

Don’t take your child back to the day care facility until you’re convinced it’s safe. If you believe your child has been harmed, seek medical attention. Take your children seriously if they tell you about something at daycare that makes them uncomfortable. With kids who are not talking yet, you’ll have to watch for other cues.

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Published on: December 14, 2020

Are Companies Liable for Accidents Caused by Texas Independent Contractors?

By Carabin Shaw

pexels-ian-panelo-3087484-200x300 Many Texas companies hire independent contractors because of their cost-effective nature. With an independent contractor, companies can use the contractor for a particular project when it needs to be done and are free from being tethered to the particular contractor when the work is complete. When a contractor’s actions cause an accident, however, there is a question of liability on the company’s part. Is the contractor or the company responsible? It can often be a complicated question.

For example, in a recent Texas Supreme Court opinion, the court considered a case involving the liability of a company that hired an independent contractor. When a Texas utility company entered into a contract with an independent contractor, the utility company issued a work order for the independent contractor to remove a utility pole. To remove the pole, it needed to be pulled out of the ground, and then the hole would be filled with dirt. The independent contractor completed the project and filled the hole, and another company that the utility company contracted with to inspect the work of its contractors confirmed that the job was complete. The plaintiff was mowing her lawn when she stepped into a hole that was two and a half feet deep in the area where the pole had been removed. The plaintiff sued the utility company, its independent contractor, and the company responsible for checking the contractor’s work for negligence. The trial court and court of appeals sided with the defendants by granting summary judgment, and the plaintiff appealed.

On appeal, the plaintiff argued that the utility company owed a duty to her to ensure that the independent contractor performed its job in a safe manner. Because the removal of the pole was inherently dangerous work and the utility company had a contractual right to control the independent contractor, they owed her a duty. However, the court disagreed and sided with the defendants, arguing that there was no duty on the part of the utility company to the plaintiff.

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