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Articles Posted in Premises Liability

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Bryan, Texas, February 8, 2020:  A  second explosion happened at one of Chesapeake Energy’s oil wells in the Eagle Ford Shale just two weeks after a Jan. 29 deadly explosion at a Chesapeake Energy oil well site in nearby Burleson County. Three men were killed and one man was left hospitalized in the Burleson incident. Bryan Maldonado, 25, and Windell Beddingfield died in what is the deadliest oilfield accident since January 2018.

Authorities are investigating the accident which occurred about 1 a.m. Saturday at a storage tank on the company’s Luther lease off Sandy Point and Old San Antonio Roads in a rural area of Brazos County about eight miles northwest of Bryan.

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(BURLESON COUNTY, Texas,  Feb 3, 2020)  Three oil field contractors have died and another is still in the hospital after an oil well blowout and the resulting fire in Burleson County, Texas.

The accident happened at a well site near Deanville, on County Road 127 and FM 60,  southwest of Bryan on January 29th.  The Chesapeake Energy owned well was undergoing major maintenance operations by contractors employed by CC Forbes and Eagle Pressure Control when the explosion occurred.

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(HOUSTON, January 27, 2020)  Two people were killed in a gas explosion in northwest Houston at a manufacturing warehouse on Friday the 25 at around 4:30 a.m. After the explosion the Houston Fire Department reported that 48 people had to be sheltered and 18 people were sent to local emergency rooms for injuries.

Officials have identified Gerardo Castorena Sr. and Frank Flores as the two victims who were killed in this fatal explosion.

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 by Attny Jesse E. Guerra, Jr.

According to a recent study, Texas had more pool drownings in 2019 than in recent years.  Certainly, this is a tragic statistic given that Texas has vast resources and has initiated extensive outreach to promote swimming pool safety.  As an aquatic litigation pioneer, I have seen a decline in new cases in the last few years.   

To be quite honest, I am happy to see a decline in cases as a result of efforts made through public awareness, and at times, due to costly litigation taken against some pool owners/operators who refused to take action to make their pools safer unless juries or litigation made them change their minds.

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As the second largest state in the U.S., Texas has a diverse range of terrain making it a great state for recreationalists. However, in Texas, approximately 95% of all the land is privately owned and landowners are not required to allow others on their land. To encourage landowners to open up their property for the public’s recreational use, Texas lawmakers have passed a recreational use statute (RUS). Texas recreationalists should be aware of the state’s RUS, as it can limit an accident victim’s ability to recover for their injuries through a Texas premises liability lawsuit, even if their injuries were the result of a landowner’s negligence.

Texas Statutes Chapter 75 discusses limitations on a landowner’s liability. Collectively, these statutes constitute the Texas RUS. Specific to this discussion, sections 75.002 and 75.003 pertain to the private, non-agricultural land that is used for recreational purposes. The RUS defines recreational activity broadly, including hunting, fishing, swimming, boating, camping, hiking, exploring, bicycling, dog-walking, and “pleasure driving”, among other activities.

Under the Texas RUS, a landowner who gives permission for others to enter their property for recreational purposes does not assure that the property is safe and does not owe their guest any greater duty than they would owe to a trespasser. Similarly, the landowner cannot be held liable for any injuries that are caused by the guest while on their property.

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The Texas Supreme Court recently issued an opinion in a Texas personal injury case involving the death of a 19-year-old pregnant woman who fell into a dam near Fort Worth. According to the court’s opinion, the woman tried to walk across the dam when she slipped and fell into the river and drowned. She was five months pregnant at the time. The woman’s parents sued the local water district, which built and maintained the dam, alleging that it was at fault for their daughter’s death. The water district, which is considered a governmental entity, claimed that it was immune from suit for that reason. The plaintiffs claimed that the district was not immune from suit because the claim fell under a specified waiver of immunity.

Governmental immunity generally protects political subdivisions of the state, including cities and counties. However, there are exceptions to the general rule of immunity. For example, the state is not immune for claims involving “use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.” Under section 101.056 of the Texas Tort Claims Act, there is an exception to waivers of immunity if the claim is based on:

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or

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Last month, a state appellate court issued a written opinion in a Texas premises liability case discussing when a landowner can be held liable for injuries caused on their property by accumulations of snow or ice. Ultimately, the court concluded that the plaintiff failed to establish that her slip-and-fall accident was the result of an “unnatural” accumulation, and thus the court affirmed the lower court’s granting of summary judgment in favor of the defense.

The Facts of the Case

According to the court’s opinion, the plaintiff was injured when she fell on a patch of ice as she was walking into a shopping mall. Evidently, the plaintiff arrived at the mall two days after a winter storm had left several inches of snow on the ground. The plaintiff parked her car in the mall parking lot, exited her vehicle, and began to approach the entrance. As the plaintiff was walking up a sloped pedestrian walkway, she fell and landed on a patch of ice. After her fall, the plaintiff noticed that there was a grainy substance, either sand or deicer, on the ground. The plaintiff also saw that there was a pile of snow at the top of the sloped ramp.

The mall filed a motion for summary judgment, arguing that under Texas law a landowner is not liable for injuries caused by the natural accumulation of snow on their property. The plaintiff claimed that by piling the snow at the top of the ramp and by applying sand or a deicer, what may have been initially a natural accumulation of snow became unnatural.

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Texas plaintiffs can have difficulty bringing claims against a governmental entity due to governmental immunity. However, there are many exceptions to governmental immunity that allow plaintiffs to bring claims against governmental entities. In a recent case before a Texas appeals court, the court upheld a claim against the Texas Department of Transportation after the plaintiff was involved in a car accident.

The plaintiff was driving a tractor-trailer on Highway 83 traveling toward Laredo. Another tractor-trailer stopped in front him, and he slowed and went onto the shoulder to avoid colliding with the tractor-trailer. The plaintiff hit an 8 ¾ inch drop-off between the shoulder and the ground. One of the truck’s tires went onto the ground and as the plaintiff tried to bring the tire back onto the shoulder, the tire popped, causing the tractor-trailer to tip over onto its side. The plaintiff brought a premises liability claim against the Texas Department of Transportation, but the Department argued that it was immune from suit. A jury found the Department was negligent, and the court awarded the plaintiff $250,000 in damages. The Department appealed the decision, arguing again it was immune from suit.

Governmental Immunity under Texas Law

Governmental immunity protects the political subdivisions of the state from suit, such as counties, cities, and school districts. A Texas governmental entity is normally immune from lawsuit unless specifically waived under Texas law. The plaintiff has the burden of showing how immunity has been waived. Governmental immunity is waived for certain claims under the Texas Tort Claims Act.

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  1. Property owners can try to evade liability in some personal injury cases by claiming that a contractor was at fault for an accident. However, even when a contractor is used, property owners may still be on the hook. In a recent case before a Texas appeals court, the court explained why a refinery could still be held liable after a contractor’s employee was injured while the contractor was completing repairs.

The plaintiff, a supervisor, worked at a company that was providing maintenance and repairs at a refining facility in Texas. He was injured at work one day when hot liquid sprayed out of a pipe, causing him to suffer severe burns. A solution of raw bauxite dirt and sodium hydroxide called “process liquor” was being pumped through the pipes. Because the process liquor caused residue to build up in the pipes over time, the pipes had to be cleaned from time to time. Some employees were using a jackhammer to remove a deposit that had formed in a pipe when hot liquor sprayed out of the pipe and onto the employee.

The plainitff had to be airlifted to the hospital due to the severity of the burns. He alleged that the refinery was negligent in failing to ensure that the liquor was emptied from the pipe before allowing work to begin. The employer argued that the refinery was not liable for his injury under Chapter 95 of Texas’s Civil Practice and Remedies Code, because the work was being done by a contractor.

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Texas’s Supreme Court recently considered a Texas personal injury case in which the defendant attempted to name another individual as a responsible third-party after the statute of limitations governing the plaintiff’s claim had expired. The court had to determine if the defendant should be allowed to bring in the third-party, or if by waiting until after the statute of limitations expired resulted in the forfeiture of this right.

The Facts of the Case

The plaintiff sued a restaurant after she was injured when a television fell off the wall and hit her. During discovery, when the woman asked who installed the television, the restaurant stated that it was installed by a certain individual. However, the restaurant also stated that it believed the parties had been correctly named, did not name any other potentially parties, and stated that it would supplement its response with the name of a responsible third-party. The restaurant did not supplement its responses before the statute of limitations expired.

Two weeks after the statute of limitations had expired, the restaurant moved for leave to designate the individual as a responsible third-party and it supplemented its discovery responses. The plaintiff argued that it was too late for the defendant to designate another responsible party because the statute of limitations had expired and the defendant failed to timely disclose that the individual might be designated as a responsible third-party.

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