Articles Posted in Premises Liability

exit signGenerally speaking, when someone is hurt due to the negligence of another party, the injured person has a right to pursue compensation for lost wages, medical expenses, pain and suffering, and other damages via a negligence lawsuit. (If the accident victim is killed, his or her family may seek compensation through a wrongful death claim.)

When the party that allegedly caused an injury or death through its negligence was a governmental entity, however, it can be much more difficult for the injured person (or deceased person’s family) to receive fair compensation. This is because special laws protect the government from suit or limit its liability.

These laws are based on a holdover from the English common law. Under the sovereign immunity doctrine, “the king can do no wrong.” Although neither the United States nor the State of Texas has ever been under the authority of a king (at least after the signing of the Declaration of Independence), many of the provisions of sovereign immunity still hold true.

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Under the doctrine of sovereign immunity, governmental entities are immune from suit in many situations. In such cases, a person hurt by the actions of the government cannot recover monetary damages, even though, if the defendant were an individual or business, there could have been a substantial settlement or judgment.

Some argue that this rule, which was founded on an old English legal principle to the effect that “the king can do no wrong”, is antiquated and should no longer be followed. Unfortunately, however, the doctrine is alive and well in Texas.

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FPSO with supply vessel.

Before a court can render judgment in a lawsuit, it must have both subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction, also called in rem jurisdiction, refers to the general category (i.e., subject matter) of the case. For instance, a state probate court lacks subject matter jurisdiction over a federal criminal matter, and a Texas state court lacks subject matter jurisdiction to determine a boundary line dispute arising in Tennessee.

In addition to subject matter jurisdiction, a court must also have personal jurisdiction over the parties to the suit. Jurisdiction over the “person” includes not only individuals but also corporations. If a court lacks personal jurisdiction over a party, it cannot render a judgment against that party, regardless of the merits of the plaintiff’s claim.

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From 1992 to 2013 the on-the-job death rate decreased overall but during the same time period the work-related death rate among Latinos increased. Latinos over 16 years old make up just 15.6% of the population but constitute nearly one-third of the workers in the construction and natural resource extraction industries which tend to include some of the more hazardous occupations. Hispanics’ over representation in the dangerous jobs is compounded by the fact that many cannot read safety instructions.

Employers often take chances with the work-hungry Hispanics who often are illegal and thus less likely to report injuries. Non-fatal injuries often go unreported. Fatal accidents get reported because, in the words of the National Council for Occupational Safety and Heath, “it’s harder to hide a dead worker.

For more information contact www.earldrottlaw.com.

A family from Mexico hire a coyote to smuggle them into the United States through Mexico. The coyote collected the family and entered a private ranch. An employee of the ranch stopped the coyote and inquired as to why he was on the ranch. The coyote sped away, lost control of his vehicle, and overturned, killing the family.

The parents of the deceased family sued the ranch’s operators and an employee for wrongful death, negligence, gross negligence, and assault. The ranch moved for summary judgment alleging that persons who were illegally in the country could not bring a wrongful death claim and that pursuant to the doctrines regarding premises liability the ranch owed no negligence duty to the trespassers.

The Texas Supreme Court held that the lawsuit could not be dismissed simply because the wrongful death claimants were in the country illegally.

Jimmie John’s restaurant is being sued for wrongful death by the family of a man who was hit and killed by a speeding Jimmie John’s delivery driver. The lawsuit alleges that Jimmie John’s, which advertises “freaky fast delivery” knew or should have known that their fast delivery policy would encourage their drivers to operate their delivery vehicles at excessive speeds which might result in accidents.

The plaintiff’s allegations regarding Jimmie John’s policies are irrelevant. While they make good sound bites they really don’t change anything. A delivery driver is operating their motor vehicle while acting in the course and scope of their employment by Jimmie John’s because they are acting in furtherance of Jimmie John’s business purposes and because Jimmie John’s has the right to control the detail of the delivery driver’s work. Thus, pursuant to the Doctrine of Respondeat Superior, Jimmie John’s is legally responsible for the Wrongful Death claim made against their driver regardless of their policies.

For more information contact www.earldrottlaw.com.

In the case of Rosa Esparza who was thrown to her death from the Six Flags Texas Giant Roller Coaster when a ride attendant allegedly failed to properly secure her lap bar the lawyers for Six Flags have filed a motion seeking to prevent the attorneys questioning witnesses from using pictures of the scene, a move which the victims lawyers have alleged is frivolous and deserving of sanctions. After the first witness was questioned regarding the scene photos the defense attorneys refused to produce more witnesses and filed their motion.
Questions regarding the scene of an accident are pertinent to the reasonable development of a death case and the use of scene photos in questioning witnesses is customary. The objection to such a routine practice likely is a delay tactic which may very well be nothing more than an attempt to buy more time while the defense lawyers “woodshed” their witnesses based upon the questions in the first deposition. If such is the case then sanctions are appropriate.

For more information www.earldrottlaw.com.

Hyperinflated hospital charges constitute about one third of the $2.7 trillion spent annually on health care in the United States. According to a study published in the The Journal of the American Medical Association hospital charges are the single largest cause of medical inflation.

According to the International Federation of Health Plans the average cost charged per day by a hospital in the United States is between $4,000 and $5,000 which is more than five times the cost in other developed countries.

The higher cost of American hospitals does not result in higher quality health care…quite the contrary. American hospital are largely unregulated and charge more simply because they can.

Austin Federal District Judge Lee Yeakel recently issued an opinion that the provision in Texas’ recent anti-abortion statute requiring that doctors performing abortions must have admitting privileges at nearby hospitals violates the Constitution. Judge Yeakel wrote that the requirement unreasonably restricts a wonan’s access to abortion clinic and the rights of abortion doctors to do what they think is in the best interests of their patients. Texas Attorney General Greg Abbott has filed an emergency appeal of the ruling to the 5th Circuit Court of Appeals which sits in New Orleans.

Democratic State Senator Wendy Davis opposed the passage of the law, engaging in a 13 hour filibuster in an attempt to block the passage of the bill. Senator Davis has announced her intent to run for Governor of the State of Texas. Texas Attorney General Greg Abbott has also announced his candidacy for Governor.

For more information contact www.earldrottlaw.com.

Google’s recent admission that no one sending communications to a Gmail account has any reasonable expectation of privacy raises the question whether a doctor, lawyer, accountant or any other professional charged with the duty of maintaining client confidentiality can ethically send confidential information through a Gmail account.

The Texas rules of ethics for lawyers imposes a duty to take steps necessary to maintain the confidentiality of certain client information. If an email service provider such as Google freely admits that communications via their service are not private then it stands to reason that any professional who sends information via Gmail may be waiving any privileges that would otherwise attach to information sent via Gmail.

For more information contact www.earldrottlaw.com.