Posted on August 26, 2015 in Uncategorized

Although it is more than one hundred years old, a decision by the Massachusetts Supreme Court provides one of the clearest examples of negligence in a landowner liability case.

Facts

In Anjou v. Boston Elevated Railway Co., the claimant was waiting for a train at the crowded Dudley Street Terminal. After the crowd thinned a bit, she asked a railroad employee for directions to her train. As she walked, she slipped on a “dry and gritty” object that turned out to be a black banana peel. Witnesses testified that the offending peel was “flattened down, and black in color.” In fact, “every bit of it was black, there wasn’t a particle of yellow.” The court focused on this fact when resolving the dispute.

Ms. Anjou prevailed at trial, and the court awarded her $1,250 plus costs, which translates to over $35,000 today.

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 Posted on August 21, 2015 in Uncategorized

Just over 20 years ago, a New Mexico jury awarded a 79-year-old woman nearly $3 million in damages resulting from a spilled cup of coffee. This personal injury case became a rallying cry for pundits all over the country; Texas adopted extensive tort reforms in 2001, partially in response to this case. But what really happened? Did this victim obtain justice, or just a bloated monetary verdict?

Facts

Stella Liebeck v. McDonald’s Restaurants began in a drive-thru at an Albuquerque restaurant. Although the media widely reported some of the facts, namely that the woman spilled a cup of hot coffee in her lap, other vital facts did not receive nearly as much attention.

Some of the victim’s damages were not the restaurant’s fault. There was a warning label on the coffee cup, and the woman happened to be wearing cotton pants that absorbed the hot liquid and held it against her skin.

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 Posted on August 19, 2015 in Uncategorized

Section 2 of the Alcoholic Beverage Code, also known as the Dram Shop Law, states that restaurants, bars, hotels, and other similar vendors are liable for the negligent acts of their intoxicated patrons. These acts typically include car crashes and assaults.

In response to a suit for damages, these employers often invoke the somewhat mislabeled “safe harbor defense” found in Section 106.14. What does the defendant employer need to prove to avoid liability, and how can the plaintiff effectively respond to this defense?

Alcohol Training Program

It is not enough to simply offer a class in which an instructor tells people not to serve drunk patrons. To establish the safe harbor defense, an employer must:

• Require that all employees attend a class;

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 Posted on August 14, 2015 in Uncategorized

Foreseeability is one of the key elements in a car crash case. While it is foreseeable that an intoxicated driver will crash into another car, it is not foreseeable that a drunk driver will crash into a fireworks factory, and the explosion will injure someone on the next block. Although the facts of the case are still disputed, a decision from the New York Court of Appeals in 1928 is one of the leading cases on this issue.

Facts

The dispute in Palsgraf v. Long Island Railroad began with a trip to Coney Island. Ms. Palsgraf, who was apparently going through a separation from her husband, thought that a day at an amusement park might be a welcome diversion for her two daughters.

While they waited for a train to take them to Rockway Beach, another train en route to another destination departed from the opposite side of the platform. As sometimes happened, a tardy passenger tried to board the train after it was already in motion. One Pullman tried to pull the man into the car, while another one pushed him from the platform. In all the confusion, no one noticed the small package under the man’s arm.

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 Posted on August 12, 2015 in Uncategorized

When Arlington billionaire Angus Wynne opened Six Flags Over Texas in 1961 on August 1, 1961, he envisioned the theme park as a way to create a temporary revenue stream on a vacant piece of property until it could be redeveloped. But visitors flocked to the new park, and he recouped his $3.5 million investment within about 18 months, which changed his mind about redevelopment plans. Today, about 40 million people each year visit one of the more than 30 Six Flags theme parks in North America.

Most modern theme parks in and around Texas, even the outdoor ones, are open ten or eleven months a year. When patrons are injured, what must they prove to receive compensation for their losses?

Landowner Duty

Theme park patrons are business invitees, and a landowner owes these individuals the highest duty under the law. As a preliminary matter, the victims must prove that they were implicitly invited to the property for a business or commercial reason. Business invitees include apartment dwellers, shopping mall customers, hotel guests, and business tenants. These people do not need to spend money; contractors, browsers, and job applicants are also considered business invitees.

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 Posted on July 31, 2015 in Uncategorized

Assume that a driver rents a moving truck from a local vehicle leasing agent, such as Ryder or U-Haul, and subsequently causes a truck wreck. Is either the leasing company, or the local franchise agent, liable for the plaintiff’s damages?

This scenario comes up quite a bit in South Central Texas, and under a common application of established third-party liability principles, the answer appears to be “yes.” But, a seemingly-inconsequential amendment to the federal Safe, Accountable, Flexible, and Efficient Transportation Equity Act, the answer is probably “no.”

The Graves Amendment

The history of 49 U.S.C. 30106 goes back all the way to 1998, when Steven Lombardi’s Acura crashed into the back of Judith Olivera’s parked Subaru in Providence, Rhode Island. The fireball collision left Ms. Olivera a paraplegic. Since Mr. Lombardi was driving a rented vehicle, she later sued Chase Manhattan Auto Finance Corporation (CMAF), the company that owned the vehicle. Four years after the wreck, a jury awarded Ms. Olivera over $28 million in compensatory and punitive damages. CMAF subsequently ceased operations in a number of states.

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 Posted on July 29, 2015 in Uncategorized

Though it may be a bit short on legal analysis, and its facts remain disputed, one of the world’s first negligence cases sets forth all the essential elements of a modern-day car accident lawsuit.

1932’s Donoghue v. Stevenson is sometimes known as the “snail in a bottle” case. Ms. Donoghue was allegedly enjoying a treat of ginger beer over ice cream at a café in Paisley, Renfrewshire, Scotland. It was an ordinary occasion, except for the dead snail that was in the bottle, quite unbeknownst to her. Ms. Donoghue claimed she fell ill at the mere sight of the partially-decomposed mollusk, and was, as a result, diagnosed with gastroenteritis and shock. In a subsequent lawsuit against Mr. Stevenson, the beer manufacturer, she claimed that he had a duty of care to ensure that dead snails were not in the beer bottles, and that Mr. Stevenson’s failure to follow established cleaning procedures caused her damages. For his part, Mr. Stevenson insisted that her “alleged injuries are grossly exaggerated.”

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 Posted on July 24, 2015 in Uncategorized

A recent lawsuit claims that Major League Baseball is negligent because it does not do enough to protect customers from foul balls and splintered bats, a situation that is all too familiar to fans of the Missions, Express, and other area teams.

The action was filed in a California federal court. The plaintiffs claim that a combination of faster pitches and wood bats, along with distractions like video monitors and WiFi, give potential victims very little time to react to a dangerous situation. Moreover, according to court documents, “attention is often no defense to serious injury” because “[s]ome in exposed sections are sitting closer to the action than the batter is to the pitcher.”

In addition to a 2014 survey which claimed that 1,750 fans are injured at MLB games every year, the lawsuit points to a number of disturbing incidents from 2015, including a broken bat that hit a spectator in Boston’s Fenway Park. The fan’s injuries were initially described as “life-threatening,” although the person is now expected to recover.

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 Posted on July 22, 2015 in Uncategorized

A big rig driver apparently panicked and hit his brakes in response to an obstacle, and then jack-knifed across Interstate 35, causing a massive truck wreck that left one person dead.

The chain reaction crash started between the Loop 410 and Rittman Road on the Northwest Side. The truck driver was traveling southbound in the center lane when he observed a small car just to his right. The driver claimed he felt an “impact,” and then slammed on his brakes. After the jack-knifed truck finally slid to a stop, there was a Chevrolet Cobalt wedged underneath the trailer. The Cobalt’s driver, a 61-year-old man, was pronounced dead at the scene.

Authorities diverted all traffic onto a side road for more than five hours as they cleared the remains of the vehicles.

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 Posted on July 17, 2015 in Uncategorized

Observers estimate that over two million Texas motorists do not have auto insurance. Millions more only carry the state-required minimum. In many instances, the amount may be insufficient to cover economic losses, such as medical bills and lost wages, to say nothing of non-economic damages, such as pain and suffering. When these drivers cause car wrecks, there may be an alternate source of recovery for victims.

Alcohol Seller Liability

The liquor industry successfully fought this measure for decades, but in 1987, Texas finally adopted its version of the dram shop law, which holds bars, restaurants, and other establishments liable if their intoxicated patrons cause an accident.

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