Premises Liability

Published on: April 10, 2016

Suing the Government for Texas Road Construction Accidents

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: March 20, 2016

Slip and Fall in Texas County Jail

By Carabin Shaw

In Jefferson County v. Akins, the plaintiff sued a county for personal injuries arising from her slip and fall in the hallway of the county jail. She was an employee of the jail, supervising inmates in the kitchen area in the middle of the night, and the fall occurred when she was leaving the jail after the end of her shift. Water often dripped in the hallway from trays being delivered from the kitchens.

Before falling, the plaintiff noticed an employee supervising a crew that was mopping the hallway. She didn’t know what she’d fallen on, but after she fell, she noticed her back was wet and the floor was shiny. Her supervisor witnessed the fall, and was of the opinion that she had fallen because the crew had just mopped the area where the plaintiff was injured.

The supervisor of the cleaning crew testified that there was a sign noting the floor was slippery on the mop bucket used by her crew. She also testified that she would dry-mop areas after mopping because she was concerned about safety. She also contradicted the plaintiff’s testimony about where she was when the plaintiff fell. She testified that she was standing about a foot from the accident and her crew hadn’t mopped the location of the fall. However, she had scolded the crew immediately after the fall, because she believed in that moment that they had left the area mopped and wet. Later she noticed drops of water on the floor in the door of the dining room and inside the dining area. It was her opinion that the trays from the kitchen carts had dripped and caused the plaintiff’s fall.

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Published on: February 17, 2016

Liability of a Texas Property Owner to an Independent Contractor’s Employee

By Carabin Shaw

In Oiltanking Houston, LP v. Delgado, an employee of an independent contractor hired to work on a pipe by Oiltanking died in an explosion. He was welding a flange on a 24-inch pipe used to transport crude oil. Hydrocarbon fumes ignited, and an explosion occurred, killing the employee and injuring two others.

The employee’s family sued Oiltanking, the owner of the premises and the hirer of the independent contractor, for wrongful death. The victims also sued for personal injuries.

At trial, testimony was provided about the procedures used, the aspects of the process that Oiltanking controlled versus the aspects controlled by the independent contractor, and the events that led up to the explosion. Under Chapter 33 of the Civil Practice and Remedies Code, Oiltanking designated the independent contractor as the responsible third party. However, the judge struck the designation when the evidence closed. Due to this, the jury was asked whether Oiltanking’s negligence was the legal cause of the explosion.

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Published on: January 28, 2016

Trip and Fall Case in Texas

By Carabin Shaw

In Lee v. K&N Management, Inc., the plaintiff sued a store and barbecue after tripping on ground cover near the store entrance. Before going to the store to pick up dessert, she’d been eating dinner with her mother and brother, and she drank a single margarita. At the store, her mother pulled the car up to the sidewalk instead of parking, and the woman got out of the car, wearing flip flops.

After leaving the car and stepping forward, the plaintiff slipped on ground cover, which she later claimed had grown out of the flowerbed and onto the sidewalk. A store employee who was also a friend of the family later spotted her fall from 25 feet away. After the fall, he saw that plants had grown 10 inches out of the flowerbed and onto the sidewalk. The plaintiff suffered a fractured ankle, which necessitated two surgeries.

The plaintiff sued under theories of negligence and premises liability. The store moved for summary judgment. It argued that the overgrowth wasn’t dangerous as a matter of law under premises liability law, that the store neither knew nor should have known of the defect, and that there wasn’t evidence of either of these elements. The plaintiff argued that it was reasonable to infer that the plant grew slowly in growing over the edge of the flowerbed, which raised a factual issue about whether the store should have known about the defect. She didn’t address the argument that a plant overgrowth was not dangerous as a matter of law.

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Published on: January 28, 2016

Liability for Falling Objects in a Texas Big Box Store

By Carabin Shaw

In PNS Stores, Inc. v. Munguia, a store appealed from a judgment awarding a plaintiff $1,048,500 in damages in his premises liability case. Two bottles of deck wash fell from a shelf five feet high and hit the plaintiff on the head when he and his son went to the defendant’s store in Pasadena to buy a trashcan. Before being hit, he saw one or two 32-ounce bottles falling, and he witnessed one or two more bottles fall from a shelf. No warning cones or signs had been placed in the aisle.

As he approached the bottles, the plaintiff saw a store employee coming from the other side of the aisle where he was stacking merchandise. The plaintiff helped the store employee pick up the fallen bottles, and he was standing up when two bottles fell and hit him on the head. The store employee later stated he’d knocked the bottles off the shelf, and they hit the plaintiff.

The plaintiff was dazed. He spoke to the manager. The incident report included the store employee’s statement. The report also noted that the plaintiff’s ear was red due to the force of the impact. When he went home, the plaintiff was nauseated and weak, and he sought medical attention. He was advised by a medical clinic to go to the ER for evaluation of head trauma, but he went back home instead.

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Published on: January 28, 2016

Does a Prior Property Owner Have Liability for a Dangerous Condition in Texas?

By Carabin Shaw

In Occidental Chemical Corporation v. Jenkins, the Texas Supreme Court considered a premises liability case in which the property’s dangerous condition was created by an previous owner. The case arose in 2006 when a man was injured while using a component to add acid to a large tank at a chemical plant. The plant produced triethylene glycol (“TEG”). This needed to be kept at a particular acidity.

The acid-addition device had multiple components. In 1992, it was designed and put on the tank by Occidental Chemical Corporation, and it was believed to be a safer way to add acid to regulate the pH. It was used for six years without a problem. In 1998, the plan was sold to Equistar Chemicals, the plaintiff’s employer. Many years later, the plaintiff was injured.

His employer asked the plaintiff to add acid to the tank for the first time.. He looked at the operating instructors and added the acid. Later, he was asked to adjust the pH again. However, the acid from the morning remained in the system under pressure. When he opened the first valve, acid flew into his eyes.

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Published on: December 10, 2015

Slip and Fall on a Texas College Campus

By Carabin Shaw

In Texas State Technical College v. Washington, the plaintiff claimed that she slipped and fell in water on the Texas State Technical College campus after a water line broke the building’s ceiling and flooded the floor. The college is a governmental unit. She sued the college for personal injuries suffered in the fall. The college filed a plea to the jurisdiction, arguing among other things that she failed to provide evidence it knew or should have known about the water on the floor, and that she failed to establish a waiver of the college’s immunity. The plea to the jurisdiction was denied.

The college appealed. In general, the Texas Tort Claims Act waives governmental immunity in a slip and fall case when the governmental entity would be liable to the claimant if it were a private person in Texas. The issue in the appeal was whether there was evidence of the college’s liability that invoked a waiver of governmental immunity.

The appellate court explained that in Texas slip and fall cases, plaintiffs must show defendants have actual or constructive knowledge of dangerous conditions in order to recover damages. The dangerous condition in this case was a slippery substance on the floor. In order to establish the actual or constructive knowledge requirement, the plaintiff needs to prove: (1) the defendant put the substance on the floor; (2) the defendant actually knew the substance was on the floor; or (3) more likely than not, the condition existed long enough to give the defendant a reasonable opportunity to discover the problem.

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Published on: October 1, 2015

Bicycle Accident on Public Property in Texas

By Carabin Shaw

In City of San Antonio v. Peralta, the plaintiff sued the city and the San Antonio River Authority after he suffered injuries in a bicycle accident on a river walk. The plaintiff was riding his bike to work, and at around 6 a.m., the bike crashed into sewer drainage. The metal plate covering the sewer had been removed. He was thrown over the bike and injured. He alleged that the negligence and gross negligence of the city and the River Authority were proximate causes of his injuries.

The plaintiff argued that their immunity was waived under the provisions related to special defects and premises defects in the Texas Tort Claims Act. The defendants argued in separate pleas to the jurisdiction that under the recreational use statute, they owed to the plaintiff only the limited duty owed to a trespasser. Specifically, they claimed there wasn’t any evidence they knew the metal plate was missing prior to the accident. They also argued the plaintiff had failed to show they were grossly negligent. Their pleas were denied, and they appealed.

The appellate court explained that governmental immunity protects governmental entities from lawsuits for monetary damages except in specific circumstances under the Texas Tort Claims Act (TTCA). Under the TTCA, a governmental entity can be liable for personal injuries based on a premises defect if the governmental unit would be liable to the plaintiff if it were a private person.

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Published on: September 21, 2015

Texas City Sued Due to Police Officer Use of Patrol Car

By Carabin Shaw

In City of Socorro v. Hernandez, a Texas appellate court considered a case in which the plaintiffs were involved in a car crash. Their car was rendered inoperable, and the electrical system died in the street. The hazard lights weren’t working. The police responded. The officer didn’t park his car behind the stalled car but instead parked on a side street, activating his overhead flashing lights. The officer ordered the two to push the stalled vehicle out of the road. A woman driving towards the accident was distracted by the police car’s lights and crashed into the police officer and the plaintiffs.

The plaintiffs sued on the grounds that their injuries and damages were proximately caused by the city’s negligence in failing to use warning lights in a way that would have warned other motorists about the dangerous condition in the road, placing the car in a side street and thereby distracting motorists from the dangerous condition, failing to take reasonable steps to make the road safe, and directing the plaintiff to push the car out of the road in spite of its inoperable condition.

The City filed a plea to the jurisdiction, which was denied by the trial court. The City appealed the denial. The court reviewed whether the allegations established that the city’s use of the police car proximately caused the injuries, whether the injuries were proximately caused by the use of the disabled car, and whether the dangerous condition created by the disabled car was a special defect.

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Published on: September 21, 2015

Texas Slip and Fall in a Hospital

By Carabin Shaw

In Reyes v. Memorial Hermann Health, a plaintiff appealed from the dismissal of her personal injury claims against the defendant. The case was dismissed because she failed to timely file an expert report under section 74.351 of the Texas Medical Liability Act (TMLA).

The case arose when a woman slipped and fell on a liquid substance inside the defendant’s premises. There were no signs or other warnings about the unsafe flood conditions. She also claimed that the defendant knew or should have known about the hazardous condition, that it breached its duty of care, and that the breach caused her injuries. She claimed that her injuries and damages were proximately (legally) caused by the defendant’s failure to use reasonable care. She did not state specific details about why she was on the property.

The defendant filed a motion to dismiss on the grounds that it was a health care liability claim. and she had failed to file a timely expert report. She responded that her claims weren’t health care liability claims and that she’d filed an expert report. The trial court granted the motion to dismiss.

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