Personal Injury

Published on: August 17, 2016

Negligent Entrustment in Texas

In Gonzalez v. Villafana, the plaintiff sued the defendants for damages suffered in a car crash with a car operated by Nestor Villafana but owned by Ramon Walle. The case arose when Walle, a muffler shop owner, visited a friend at his tire shop, hoping to talk about buying some land from the friend. Villafana was also a friend of the tire shop owner visiting the shop. Walle was in the shop for 30 minutes when his wife called to tell him about a customer at the muffler shop. Villafana asked for a ride to the muffler shop so that he could get a taco nearby.

Walle drove him. At the muffler shop, both men left the car, with Walle assuming Villafana would go get something to eat. Walle left his keys in the ignition. However, 30 minutes later, another friend called to tell him he’d seen his car in an accident. Villafana had been driving the car. Walle didn’t know the car was gone until he was informed about the accident.

The plaintiff sued Walle for negligent entrustment and Villafana for negligence. Walle filed for summary judgment. The trial court granted the motion and severed the plaintiff’s claims against Walle from the claims against Villafana so that the judgment was final as to Walle.

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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: 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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Published on: June 12, 2016

Statute of Limitations in Texas Minor’s Wrongful Death

By Carabin Shaw

In Durham v. Children’s Medical Center of Dallas, a Texas appellate court considered whether the Texas Constitution’s Open Courts Clause stopped the statute of limitations from running in a deceased 12-year-old’s survival and wrongful death claims against her health care providers.

The case arose from the medical care of the decedent, a 12-year-old girl born in 1993. In 2006, she was seriously hurt in Hawaii. Among other things, the Hawaii doctors found that she had a dilation of the ascending aorta that was not trauma-related. They recommended she follow up with a Texas cardiologist.

She was transferred to the Children’s Medical Center of Dallas with the help of her general pediatrician. However, the pediatrician didn’t see her after her transfer or before she died. She was treated by a Dr. Rupp and a nurse practitioner, and then she was discharged on the same day and told to come back for follow-up orthopedic surgery. That day, she was evaluated by Dr. Copley and then operated on. She stayed at the Children’s Medical Center for a few weeks, receiving care also from Dr. Holland and Dr. Kines, and then she was transferred again to another hospital, Scottish Rite. Two years later, at age 15, she became ill and died of aortic rupture.

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Published on: June 12, 2016

Texas Employer Liability for Temp Workers

By Carabin Shaw

In Tractor Supply Co. of Texas, LP v. McGowan, the plaintiff sued a tractor supply distribution company and related parties for personal injuries. The case arose when a temporary staffing company assigned the plaintiff to work in the tractor supply distribution center. Employees of the center trained, supervised, and instructed him on his job duties.

The plaintiff was working as a picker on the date of the accident. Another employee was loading a pallet and pushed another pallet loaded with dog food off the rack. This landed on the plaintiff, causing serious injuries.

The plaintiff prevailed at trial. The defendant tractor supply distribution company appealed, arguing that the court had made a mistake in depriving it of the exclusive remedy defense provided by the Texas Workers’ Compensation Act.

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Published on: June 12, 2016

Can a Texas Defendant Require You to Submit to a Medical Examination?

By Carabin Shaw

In the Texas Supreme Court case of In Re HEB Grocery Store Company, the Court considered whether a trial court had properly denied the defendant’s motion to conduct a physical examination of a personal injury victim.

The case arose when the plaintiff sued a grocery store for negligence, claiming he’d tripped and fallen over a metal plate in front of the grocery car corral in its parking lot, suffering injuries to his face, neck, shoulder, arm, and knee. He underwent medical care, including spinal surgeries. While the lawsuit was pending, he was also involved in an accident at a Sam’s Club. He sued the Sam’s Club, claiming that an employee had dropped a roll of artificial turf on his head, causing him to suffer head and neck injuries.

The grocery store retained as a medical expert an orthopedic surgeon. The surgeon didn’t examine the plaintiff but did provide a report with opinions about the plaintiff’s injuries, relying on a medical records review. It was his opinion that the plaintiff’s spinal injuries were the result of a preexisting spinal condition and that nothing in the plaintiff’s MRI a month after the fall suggested he had an acute injury.

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Published on: April 10, 2016

Suing the Government for Texas Road Construction Accidents

By Carabin Shaw

In Texas Department of Transportation v. Brown, the plaintiff was driving on Hwy 82, in an area that was a construction zone, when she crashed into an unmarked machine parked in the right-hand lane. Later, she would claim that the barricade drums that were put between the two lanes didn’t show which lane was closed.

She sued the contractors for the Texas Department of Transportation (Department) and others for negligence. The defendants designated the Department as the responsible third party. She then amended her suit to include the Department as a defendant. She argued that the Department’s governmental immunity was waived under the Texas Tort Claims Act (TTCA). The TTCA required pre-suit notice. Her petition didn’t claim to provide pre-suit notice, only that she had generally met all the prerequisites to file suit.

The Department filed a verified answer and claimed governmental immunity, alleging she hadn’t provided notice of her claim as required under Section 101.101(a) of the Texas Civil Practice and Remedies Code. The director of the relevant section of the Department swore that notice hadn’t been received. Later, the Department filed a plea to the jurisdiction, arguing there was no subject matter jurisdiction.

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Published on: October 25, 2015

Liability for Dog Bites in Texas

By Carabin Shaw

In Bowman v. Davidson, a Texas appellate court considered a case in which a guest at a couple’s home was bitten in the face by their dog. She suffered severe injuries and sued the couple. She claimed that since they had actual or constructive knowledge about their dog’s abnormally dangerous tendencies, they were strictly liable for her injuries, or alternatively they were negligent in failing to use reasonable care to stop the dog from hurting her. The jury found for the couple on both of these theories.

The plaintiff appealed, arguing that she was entitled to a positive jury verdict on strict liability as a matter of law, and in the alternative that the jury’s finding went against the weight and preponderance of evidence. The appellate court explained that the owner of a vicious animal may be held strictly liable for injuries in Texas. However, the owner of a non-vicious animal may be liable if he negligently handles the animal.

In order for strict liability to apply, the plaintiff will need to show: (1) the defendant owned or possessed the animal, (2) the animal had dangerous tendencies that were abnormal for the type of animal it is, (3) the defendant knew or should have known of these tendencies, and (4) the tendencies caused the plaintiff’s injuries.

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Published on: October 25, 2015

Expert Testimony in Texas Toxic Tort Cases

By Carabin Shaw

In Cerny v. Marathon Oil Corporation, a couple sued an oil corporation and others for private nuisance and negligence claims. They said that toxic emissions from the companies’ oil and gas operations near their home had caused injuries to their health and property.

The case arose when the couple moved into a fixer-upper in 2002. They leased mineral rights in their land to the predecessor of the oil corporation defendant. Subsequently, the defendant was authorized to use the surface of their land for oil and gas operations and to drill horizontal wells. The defendant didn’t put wellheads or infrastructure on the couple’s property, and they received consistent royalty payments.

In 2013, they sued the oil corporation and another party, alleging that they were negligent in their oilfield operations and these operations worsened existing health problems and caused new ones. Due to the oilfield operations, their property wound up with sink holes, and their home’s foundation was damaged. Their property was also surrounded by other wells and production facilities owned by the defendants, and these radically changed their rural lifestyle. They pled negligence, negligence per se, gross negligence, and private nuisance.

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