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Is a Slip and Fall on Scaffolding a Premises Liability Case in Texas?

scaffoldingIn a recent Texas Supreme Court opinion, the Court considered a slip and fall case brought against a scaffolding contractor. The case arose when a pipefitter was scheduled to work overtime at a refinery. For the overtime shift, he worked with a different crew than usual, but all crewmembers were employees. The crew had the job of conducting routine maintenance. The pipefitter’s job was dangerous, and he and others were on a scaffold 15 feet above the ground and received fresh air through special equipment.

The pipefitter slipped on some plywood that wasn’t nailed down, and as a result, he fell up to his arms through a hole in the scaffold and hurt his neck. A contractor hired by the pipefitter’s employer built the scaffold. The contractor was required to follow OSHA regulations and other policies, and it needed to inspect about 3,000 scaffolds at the refinery before and during work shifts and use. The scaffold at issue was inspected a week before the work started, but the contractor’s reps weren’t there on the date of the fall, and they were not there during the three days before it.

The pipefitter sued the contractor, claiming improper construction of the scaffold and failure to warn. The contractor didn’t raise the issue of premises liability. The jury found the contractor negligent. It assigned 51% responsibility to the contractor and 49% to the pipefitter/plaintiff. The damages awarded were $178,000 in future medical expenses only.

The plaintiff moved for a new trial, which was granted. The contractor asked the appellate court for relief, which was denied. However, the Court conditionally granted the writ of mandamus. Eventually, a second writ was filed. A new trial was held. The contractor didn’t offer a premises liability question this time either. The new jury allocated 100% of the responsibility to the contractor. The jury awarded the plaintiff $2 million in past and future damages.

The contractor moved for a new trial and for judgment notwithstanding the verdict. Only in this motion did the contractor raise the issue that the plaintiff’s claim was a premises liability claim, rather than a general negligence claim. When judgment was entered for the plaintiff, the contractor raised two issues on appeal.

The plaintiff argued that the contractor had waived its argument that the case sounded in premises liability law rather than general negligence law. The Court held that the contractor was right that the claim sounded in premises liability, and therefore general negligence findings couldn’t support the plaintiff’s recovery.

The Court explained that someone hurt on somebody else’s property may have a premises liability claim or a negligence claim. If the injury is a result of contemporaneous negligent activity on the property, the plaintiff needs to use ordinary principles of negligence to recover.

However, if the injury is a result of a property condition, rather than an activity, premises liability principles apply. In a premises liability case, unlike an ordinary negligence case, a plaintiff needs to show actual or constructive notice of the dangerous condition, among other things, to recover damages. The Court explained that the control over the property need not be exclusively the defendant’s in order to recover. The Court reversed the appellate court and rendered a take nothing judgment in the defendant’s favor.

If you are injured on somebody else’s property, you should consult a Texas attorney with experience in premises liability cases to seek a favorable outcome. Consult the experienced San Antonio attorneys at Carabin & Shaw for more information at 1-800-862-1260.

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