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Articles Tagged with Premises liability

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CS-San-Antonio-9-300x300Recently, a Texas district court issued an opinion in a lawsuit stemming from injuries a man suffered during a workplace altercation. According to the record, the plaintiff worked in a storeroom of a clothing store that is operated by a larger company. The plaintiff and another employee became involved in a verbal altercation requiring intervention from a supervisor. The supervisor presented the parties with the options to either quit their jobs, change shifts, or continue working together-they chose to continue working together. About a week after the verbal altercation, the men became involved in another argument, and the employee punched the plaintiff. Both of the men were terminated from their positions. The plaintiff filed a lawsuit against the parent company, arguing that they were liable for his injuries because of negligent hiring, negligent training, negligent supervision, retention, and monitoring. A jury found in favor of the plaintiff, and the company appealed.

Among other issues, the company argued that they were not liable because the men were not employees of the parent company, but rather of a subsidiary. The company argued that the plaintiff did not establish that the defendant had an employment relationship with any of the parties involved, or that they controlled the subsidiary’s safety policies. Therefore, the jury’s finding was not supported by the evidence.

Under Texas laws, the court will sustain a sufficiency of the evidence challenge if there is a complete absence of an essential fact, the trial court is barred by the law to give weight to the evidence offered to prove a vital fact, if the preferred evidence is no more than a “mere scintilla,” or the evidence established the opposite of a vital fact. Evidence rises to a sufficient level if it would allow fair-minded people to differ in their conclusions. Further, if the evidence does not create more than a slight suspicion, it is not sufficient.

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Every year nearly 500 people in the US die from what is a preventable death: accidental carbon monoxide poisoning.  Nearly 50,000 people in the U.S. end up visiting emergency rooms each year due to CO poisoning. There are many ways to protect your family, loved ones, guests and renters.  Whether you’re at home or traveling, there are steps you can take to help keep yourself and others safe from CO poisoning.

Owners of hotels, rental properties and homes have legal obligations to make sure their properties are serviced and do not pose a risk of renters, friends, family or guests developing CO Poisoning.  Winter temperatures now mean an increase in heating systems running for hours which adds to the carbon monoxide risk.

Surprisingly, fumes are produced by more than furnaces.

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pexels-oliver-king-4067795-300x200Many Texans spend the majority of their time at work. As a result, San Antonio workplace accidents are very common, even for those with jobs that are not physically demanding. Indeed, an on-the-job accident can occur at any moment, and for almost any reason. Thus, all employees need to understand their options when it comes to recovering after a work-related accident.

There are two types of claims that a worker can bring after an on-the-job accident. The first, a workers’ compensation claim, is the more common of the two types of claims. The workers’ compensation system provides employees a simplified way to obtain compensation for a work-related accident without needing to prove that their employer was at fault. Because the workers’ compensation program is a no-fault system, these claims are typically quicker to process than traditional personal injury claims.

The main drawback of workers’ compensation claims is the availability of damages. Injured employees who successfully bring a Texas workers’ compensation claim can obtain benefits for their medical expenses, lost wages, and any decrease in earning capacity. However, unlike a personal injury case, a workers’ comp claim does not entitle an employee to non-economic damages.

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architecture-blue-building-cool-261372-300x200Every year, hundreds of residents enjoy the outdoors by swimming at their local apartment, hotel/resort, or community swimming pools. A beautiful breeze and the refreshing waters of swimming pools make these gathering places a fun activity for families. No wonder that the pools are the center of summer fun where family members of all ages relax and enjoy the outdoors together.

Despite the benefits and pleasures swimming pools provide to its users, there are also risks involved.

In fact, swimming pool accidents are one of the most common types of accidents reported in an apartment complexes, hotel complexes, or community neighborhood pools.  If a serious injury happens due to negligence or worse yet, a drowning, at one of these public venues, you do have someone to turn to for help and advice at Carabin Shaw

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agriculture-animal-beef-bull-301600-300x201The Supreme Court of Texas, recently issued an opinion addressing the reach of the Texas Farm Animal Activity Act (Farm Act). According to the court’s opinion, the defendants owned and operated a 760-acre cattle farm. In 2005, they hired a part-time ranch hand to work the cattle and perform other duties at the ranch. After training the ranch hand, they allowed him to work alone while the owners tended to their other businesses. On the day of the accident, the owners instructed the ranch hand to move 20 head of cattle from one end of the ranch to another. When the owners returned, they found the ranch hand dead behind the barn. It was indicated in the medical report that the ranch hand died from blunt force and crush injuries, most likely from being trampled by the animals.

A wrongful death lawsuit was filed by the ranch hand’s family against the owners, alleging that they were negligent in failing to provide a safe workplace, failing to train the ranch hand and warn him of the dangers of working cattle, and failing to supervise him. The trial court granted summary judgment in favor of the defendants finding that the Farm Animal Activity Act (Farm Act or Act) barred the plaintiffs’ claims; however, the court of appeals reversed, and the defendants petitioned the court for review.

The Farm Act (the Act), which is an expansion of the Equine Activity Act, limits liability for injuries to a participant in a farm animal activity that results from an “inherent risk” of the activity. One example is when someone is injured while competing in a horse race. The Act applies whether a person is an amateur, professional, pays, or participates in the activity for free. The are about 40 specific examples of these activities included in the Act. However, notably, ranchers’ and ranch hands’ involvement with the animals is not mentioned in the the Act.

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city-road-landscape-landmark-158854-200x300The Supreme Court of Texas recently issued an opinion stemming from the death of a student who was shot by a University peace officer. The student’s parents filed a lawsuit against the University and the peace officer. In response, the University argued that governmental immunity protects it from being sued for injuries related to law-enforcement activities.

Sovereign immunity, otherwise known as governmental immunity, protects government officials and entities from certain civil lawsuits. However, Texas waives this immunity in specific situations. That said, plaintiffs still frequently face difficulties recovering in these cases. Texas courts have not extended this immunity to private entities, even if they perform some governmental duties. In some cases, institutions will purport to possess these protections, even though they are private institutions.

In evaluating whether the law provides governmental immunity to an institution, courts will examine whether the party acted as an arm of the state government, and if its conduct fits within the purpose of the doctrine. Generally, private universities do not act as an arm of the state. Even if a university performs law enforcement activities that may protect the public, the doctrine does not extend to these institutions. Although Texas Education Code allows private institutions to hire peace officers, the individual officer’s immunity does not extend to the private institution.

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abstract-animal-arachnid-art-276377-225x300Recently, the Supreme Court of Texas, issued an opinion addressing whether the ferae naturae doctrine limits a landowner’s liability when a wild animal on their property causes damages. According to the court’s opinion, the defendant owned a bed and breakfast (B&B) and a neighboring cabin on the property. In 2012, the defendant began renting out his B&B, primarily on the weekends. Before each rental, the owner hired a cleaning service to prepare the home for the incoming guests. This preparation included identifying any potential pest problems and utilizing a “bug bomb,” in cases where the housekeeper noticed a pest issue.

In 2014, the defendant leased the neighboring cabin to the plaintiff. The defendant often employed the plaintiff to do various maintenance work on the B&B. On previous occasions, the plaintiff notified the defendant that he observed spiders in the cabin and B&B. The defendant would tell the housekeepers of these sightings so that they could appropriately prepare the B&B for guests.

In preparation for incoming guests, the plaintiff asked the defendant to check on the B&B’s dishwasher and determine whether the sink was leaking. When the plaintiff was checking the sink, a brown recluse spider bit him. Neither the plaintiff nor the defendant had any knowledge that there were brown recluse spiders on the property. Although, the defendant read reports that brown recluse spiders are often found in Texas, and he assumed they might exist on his property.

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adult-alcohol-bar-bartender-274192-scaledUnder Texas premises liability law, restaurants and bars have a duty to protect their customers. However, the extent of this duty is often called into question in cases where someone is injured while visiting an eating or drinking establishment. In a recent opinion, the court was asked to determine whether the defendant bar owed the plaintiff a duty of care to protect him against the criminal acts of a third party.

According to the court’s opinion, the plaintiff and a friend were drinking at the defendant bar. While they were at the bar, there were no issues. However, at 3 a.m., when the bar closed, the plaintiff was attacked by another bar patron. The fight left the plaintiff permanently blinded.

The plaintiff filed a personal injury lawsuit against the bar, arguing that the bar was negligent for failing to take any steps to protect him against the criminal acts of the other bar patron. In support of his claim, the plaintiff pointed to the fact that the police had been called five times the previous year for fights occurring in the bar’s parking lot immediately after closing.

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gray-and-black-semi-automatic-pistol-3602946-scaledShooting ranges are popular in Texas, but anytime someone handles a gun there is a risk for injury. Despite the safety procedures in place in most Texas ranges, accidents do occur, and individuals are sometimes shot, leading to injuries or even death. Like most accidents, Texas law allows victims to file a civil negligence suit to recover for their injuries against a negligent party who caused the accident. However, the requirements for filing a lawsuit against a shooting range are a bit more complicated, meaning some plaintiffs who misunderstand the statutory requirements for filing may have their suit dismissed regardless of its merits.

The Supreme Court of Texas recently considered a case that highlights these requirements. According to the written opinion, the plaintiff brought his loaded .22 caliber rifle to the defendant shooting range in December of 2016. He handed the gun to a range employee for a pre-entrance safety inspection, and during the inspection, the gun discharged and shot the plaintiff in the leg. As a result, the plaintiff suffered severe injuries that required extensive medical treatment.

In February of 2017, the plaintiff sued the shooting range and the employee who performed the inspection. The parties submitted an agreed-upon scheduling order, which was approved in April. The order provided a date by which all experts must be designated. In June of 2017, more than 90 days after the suit was filed, the defendants filed a motion to dismiss, based on section 128.053 of the Texas Civil Practice and Remedies Code. This section requires that a plaintiff suing a shooting range must serve an expert report on the defendants within 90 days of the original filing, unless that deadline is extended by written agreement. If a plaintiff fails to do so, their suit can be dismissed with prejudice. The defendants argued that the plaintiffs had not served them with an expert witness within 90 days, and thus the suit must be dismissed. The plaintiffs, on the other hand, argued that the scheduling order extended the deadline, even though it did not mention section 128.053.

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