September 10, 2001The Court is now back in session after taking most of the summer off for vacation. This newsletter covers the Texas Supreme Court opinions for June and July. The Court continued its conservative position in demanding strict proof of both causation and damages in Exel Corporation v Apodaca and Southwest Key Program d/b/a Texas Key Program, Inc. v Perez. However, in an uncharacteristic opinion for the Supreme Court, the judgment against a plaintiff was reversed in D. Houston, Inc. d/b/a Treasures v Love in which the Court held that an exotic dancer could maintain a cause of action against her employer (one of Houston's "Gentlemen's Clubs") when she had an accident on her way home from work.The Court in Columbia Hospital v Moore interpreted the statutory cap on damages in medical malpractice wrongful death cases to apply to prejudgment interest. I. THE DRAM SHOP ACT DOES NOT PROVIDE THE EXCLUSIVE REMEDY FOR AN INDEPENDENT CONTRACTOR WHOM HAS SUED HER PRINCIPAL FOR AN ALCOHOL RELATED INJURY An exotic dancer was involved in an automobile accident while driving under the influence of alcohol on her way home from work at a gentlemen's club. No cause of action against her employer, right? Wrong. In D. Houston, Inc., d/b/a Treasures v Love (decided on June 27, 2002), the Supreme Court held that an exotic dancer could maintain a cause of action against her employer who allegedly required her to consume alcohol on the job.
Melissa Love worked as a waitress and exotic dancer at a gentlemen's club in Houston, Texas. When she worked as a waitress she was an employee of the club. When she worked as an exotic dancer she was an independent contractor. On the night in question the plaintiff had consumed at least twelve alcoholic beverages during the course of her work as an exotic dancer. She left work at approximately 1:30a.m. The club manager asked her if she was alright. She replied that she was fine. Although in her deposition the plaintiff testified that she felt confident to drive a motor vehicle, she offered an affidavit from a doctor that her blood alcohol level was still .225 at 4:00 a.m. Ms. Love subsequently sued Treasures Gentlemen's Club under Chapter 2 of the Texas Alcohol Beverage Code (The Dram Shop Act) and for common law negligence and gross negligence. Treasures moved for summary judgment on the Dram Shop claim asserting that it satisfied the "trained-server" statutory defense. Treasures further contended that it established as a matter of law that Love was not clearly intoxicated to the extent that she presented a danger to herself and others at the time Treasures last served her alcohol. The trial court granted the motion for summary judgment on the trained-server defense. Treasures then filed a second motion for summary judgment, arguing that the Dram Shop Act was the exclusive cause of action for providing alcoholic beverages to persons eighteen years or older. The trial court agreed and granted the motion for summary judgment.
The Supreme Court first examined the issue of whether the Dram Shop Act was the exclusive cause of action for providing an alcoholic beverage to persons eighteen years of age or older. Section 2.03 of the Dram Shop Act limits its scope to "customers, members, or guests of providers." Language in the Act indicates that it provides an exclusive cause of action for providing an alcoholic beverage to a person eighteen years of age or older. The Supreme Court, however held that the Dram Shop Act does not provide the exclusive cause of action against providers. In fact, the Supreme Court found that the duty that arises from the employer-independent contractor relationship established the plaintiff's cause of action against Treasures. In allowing Ms. Love to maintain a cause of action against Treasures the Court pointed to the alleged failure of the employees of Treasures to use reasonable care in exercising their control over the work of the independent contractors. In finding a duty between Treasures and Love, the Supreme Court noted that there was some evidence that the dancers were pressured to drink alcohol with customers. Ms. Love stated in her deposition that if a dancer wanted to keep her job she needed to drink. The Supreme Court relied upon that testimony to create a fact question regarding the control over Love's decision to consume alcoholic beverages to the extent that she became intoxicated. The Supreme Court then held that when an employer exercises some control over its independent contractor's decision to consume alcoholic beverages, the employer must take reasonable steps to prevent foreseeable injury to the independent contractor caused by drunk driving.
The significance of this case is that it extends the liability of a principal for the acts of its retained independent contractor, even when the independent contractor is no longer "on the job."
In Columbia Hospital Corporation of Houston v Moore (decided on June 27, 2002) the Court held that the statutory cap on damages in medical malpractice cases also applies to prejudgment interest. Moore filed a wrongful death claim against Columbia Bellaire Medical Center and two physicians. The jury awarded $3 million in damages. The trial court applied the provisions of subchapter K of the Medical Liability and Insurance Improvement Act to reduce the plaintiff's damages to $1,305,691; however, the Court added $30,487.79 in prejudgment interest to the damages. The sole issue before the Court was whether prejudgement interest was also subject to the limitation of damages applicable to wrongful death medical malpractice claims. The Court held that the damages awarded, including prejudgment interest, cannot exceed the statutory cap applicable to wrongful death cases in medical malpractice claims. II. STRICT PROOF OF CAUSATION IS NECESSARY TO ESTABLISH LIABILITY The Court's opinion in Excel Corporation v Apodaca (decided on June 27, 2002) epitomizes how far the Court has gone in demanding proof of causation in personal injury cases.
Jimmy Apodaca worked at Excel Corporation's beef packing plant from 1978 until 1995. He ultimately had to leave his employment in 1995 due to injuries to his neck, back, and wrist. He operated a conveyor belt from 1992 until 1995 when he was ultimately forced to quit his job. Mr. Apodaca's job required him to place bags of meat weighing up to 40 pounds on a machine plate where a cryovac machine would remove air from the bag and then seal the bag. Mr. Apodaca performed this bagging operation approximately every three seconds during an eight hour work shift. Despite the fact that Mr. Apodaca's doctors determined that he had injured his back, neck, and wrist, the doctors only agreed that the wrist injury was work related. Excel Corporation, which was not a subscriber under the Texas Workers Compensation Act, paid for medical expenses related to the carpal tunnel syndrome wrist injury. When that injury had resolved, Excel Corporation stop paying Mr. Apodaca's medical expenses. Due to the injuries to the neck and lower back, Mr. Apodaca required three surgeries which ultimately left him totally disabled. Apodaca then sued Excel Corporation for negligence and gross negligence in failing to provide a safe worksite. Apodaca claimed that the design of the cryovac workplace required him to bend, reach, and pull excessively. As a result, he suffered from cumulative trauma disorders (CTD). The jury found that Excel Corporation was negligent and awarded damages of $536,472.
Excel Corporation appealed the jury verdict, contending that Apodaca offered no evidence that there was a cause-in-fact relationship between the workplace and his CTD injuries. In support of his theory of causation, the plaintiff had offered the following evidence:
Apodaca stressed that the testimony of James Rudd, a safety and ergonomics official at Excel who had made recommendations concerning changing the operator's work station at the cryovac machine, proved the cause-in-fact relationship. The Court noted that several recommendations had been made to change the cryovac workstation. However, the Court concluded that: While the evidence may show that Excel should have employed other practices and that Apodaca's injuries were work-related, none of it shows that had Excel employed those other practices, Apodaca would not have been injured. In other words, the evidence does not show that had Excel modified the cryovac worksite or job requirements, or had it conducted symptom surveys, Apodaca would not have suffered his injuries or they would have been diagnosed sooner and reversed using other treatments. The Court further felt that the medical evidence failed ". . .to establish that Apodaca would not have been injured but for the negligent conduct by Excel." The Court therefore rendered that judgement that plaintiff take nothing.
This is a fact specific case which does not establish any new principles of law but shows how far the Supreme Court will go to reverse a judgement in favor of the plaintiff. While the Court acknowledged that Excel Corporation could have made changes in the workplace, it held that there was no evidence that the changes would have prevented the plaintiff's injuries. III. STRICT PROOF OF CAUSATION IS NECESSARY TO ESTABLISH DAMAGES In Southwest Key Program d/b/a Texas Key Program Inc. and La Esperanza Home for Boys vs. Carlos Gil Perez, (decided on July 3, 2002), the Supreme Court found that the Plaintiff failed to present evidence of a causal connection between the failure of the defendants to provide protective football equipment and the plaintiff's knee injury sustained in a "pickup" game of football.
In September of 1994, plaintiff Carlos Gil-Perez was a resident at the La Esperanza Home for Boys in Brownsville, Texas, through an agreement with the Texas Youth Commission. In September 1994, Antonio Garcia, a Southwest Key employee, took plaintiff and some other residents to a local stadium to participate in various athletic activities. At some point while the residents were playing games, some boys who were not residents of the home approached Mr. Garcia and asked to engage in a game of football with the La Esperanza residents, including plaintiff. Garcia agreed as long as there was no tackling below the waist. What ensued was a game of football without any protective equipment provided to any of the players. As could be expected, one of the non-resident players tackled plaintiff causing him to suffer an injury to his knee. Plaintiff sued Southwest Key alleging it was negligent in allowing him to play tackle football without providing any protective gear or equipment. At trial, Southwest Key argued that this case involved a sports injury and urged the court to adopt a heightened standard for recovery, requiring reckless or intentional conduct. The trial court obviously rejected Southwest Key's request and submitted the case on general negligence issues. The jury found Southwest Key negligent and awarded the plaintiff $75,000.00 in damages. Southwest Key subsequently appealed the trial court's verdict and argued that the jury's verdict was not supported by legally or factually sufficient evidence in that there was no evidence that the failure to provide protective equipment in the football game caused plaintiff's injuries. Plaintiff also tried to raise arguments that he alleged other theories of negligence including negligent supervision, negligent instruction, and negligent organization of the game. The Corpus Christi Court of Appeals found that there was sufficient evidence of negligent supervision and affirmed the trial court's judgment. Southwest Key appealed the appellate court verdict to the Texas Supreme Court arguing again that there was no evidence to support a finding of negligence against Southwest Key. Southwest Key also argued that this was a sports injury case and that a higher standard of liability should apply but the Court did not rule on this issue.
The Court noted that the plaintiff theoretically argued a negligent supervision claim. However, when construing the pleadings, the evidence, the testimony of plaintiff, the representation of plaintiff's counsel to the trial court, and the representations of plaintiff's counsel to the appellate court, the Court found that plaintiff truly was only arguing a negligence claim based upon the failure to provide equipment. Therefore, the Court conducted a review of the evidence as it applied to the negligence theory of liability for the failure to provide equipment. The Court found that there was no evidence to support a claim of negligence. The Court noted that plaintiff failed to provide any evidence that the failure to provide sports equipment was in and of itself the cause-in-fact of injuries suffered by Plaintiff. The Court further noted that plaintiff's own doctor could not state that it was more probable than not that the provision of equipment would have prevented the knee injury suffered by plaintiff.
This is a fact specific case dealing with proof of causation of damages. The holding of the Court indicates that the plaintiff's theory of liability must be supported by proof of medical causation. IV. A GOVERNMENTAL AGENCY IS NOT LIABLE FOR ITS FAILURE TO REPLACE A TRAFFIC CONTROL DEVICE UNLESS THE AGENCY HAD ACTUAL KNOWLEDGE THAT THE TRAFFIC CONTROL DEVICE WAS MISSING The Court in State of Texas v Gonzalez (decided on June 27, 2002) found that the Texas Department of Transportation (TxDOT) was not liable for failing to replace a traffic control device that had been stolen. The Court held that even though the stop sign in question had been stolen numerous times before the plaintiffs' accident, the plaintiffs were not entitled to recover unless TxDOT failed to replace the stop sign after it received notice that the stop sign was missing.
This is a wrongful death case in which Maria Alicia Gonzalez and three of her passengers were killed in an intersectional collision in Hidalgo County, Texas. The accident occurred on Sunday, February 8, 1987. The road on which Ms. Gonzalez was traveling usually had a stop sign; however, vandals had removed the sign prior to the accident involving Ms. Gonzalez. Ms. Gonzalez was not familiar with the intersection in question and therefore failed to yield the right-of-way as she entered the intersection. Vandals had repeatedly stolen the stop signs at this intersection during the seventeen day period prior to the accident involving Ms. Gonzalez. Due to the vandalism at this intersection, TxDOT had ordered inspections of the intersection at least twice a day during weekdays. TxDOT had also requested that the Hidalgo County Sheriff's Department monitor the signs at night. TxDOT did not monitor the signs on the weekend. A stop sign at the intersection in question had been replaced on Friday, February 6, 1987. An off-duty TxDOT employee noticed that the signs were up as he passed through the intersection on Saturday afternoon, February 7, 1987. The accident in question occurred at 2:30 p.m. on Sunday, February 8, 1987. Therefore, the stop sign had been stolen within the 24-hour period between the afternoon of February 6, 1987 and the afternoon of February 8, 1987. No one had reported the lack of a stop sign at the intersection to either TxDOT or any other governmental authority prior to the accident involving Ms. Gonzalez. The plaintiffs sued TxDOT under the wrongful death statute claiming that the repeated vandalism of the stop signs constituted a "condition" which required TxDOT to take efforts to make sure that the signs were not removed." TxDOT contended that it was not liable unless it had actual notice that the stop sign had been removed. The case was tried to a jury which found TxDOT liable for the accident in question. The jury verdict was upheld by the Corpus Christi Court of Appeals which found that the continued vandalism in stealing the stop signs created a duty on behalf of TxDOT to take affirmative measures to prevent the stop signs from being stolen.
The issue before the Court was whether the continued vandalism of the signs constituted a "condition" under ยง101.060(a)(2) of the Texas Tort Claims Act which would require TxDOT to take preventative measures against vandalism of traffic control devices. The Court held that despite the continued vandalism of the stop signs, a governmental entity is not liable for the removal of a traffic control device as a result of vandalism unless the governmental entity did not replace the traffic control device within a reasonable time after receiving notice that the device had been stolen. In this case, the Court found that there was no evidence of knowledge that the traffic control device had been stolen. As a result, the Court rendered judgment that the plaintiffs take nothing.
The Court continued its strict construction of the Tort Claims Act by requiring actual notice of the removal of a stop sign to establish liability against a governmental entity. V. PARTICULARIZED NEED/RISK STANDARD INAPPLICABLE TO SUIT BY A SUSPECT FOR ARREST-RELATED INJURIES In Telthorster v. Tennell (decided June 27, 2002), the Court held that in a suit against an officer by a suspect for arrest-related injuries, the defending officer must show that a reasonably prudent officer, under the same or similar circumstances, could have believed that the disputed conduct was justified based upon the information that the officer possessed when the conduct occurred. To controvert this evidence, the suspect must show that the officer was negligent and that no reasonable officer could have believed that the circumstances justified the officer's conduct.
Officer Rob Bailey and Mark Telthorster of the Navasota Police Department were on routine patrol when they observed Ollie Tennell fail to properly signal a turn. The officers engaged their sirens in an attempt to stop Mr. Tennell. Mr. Tennell refused to stop his vehicle, and a high-speed chase ensued. The pursuit ended as Mr. Tennell stopped his vehicle in the driveway of his home. Mr. Tennell sounded his horn as to alert any persons inside his home. The officers drew their weapons and ordered Mr. Tennell to exit his truck. After Mr. Tennell exited his vehicle, Officer Bailey holstered his weapon and grabbed Mr. Tennell's upper right arm and placed him face down on the ground. Mr. Tennell struggled with Officer Bailey. Officer Telthorster approached Mr. Tennell to handcuff him. With his weapon drawn, Officer Telthorster handcuffed Mr. Tennell's left hand. As Officer Telthorster brought Mr. Tennell's hands together, Officer Telthorster's gun discharged accidentally and grazed Mr. Tennell's back. Mr. Tennell was unarmed. Officer Telthorster testified that in the seconds preceding the discharge from his firearm, he was unable to determine with certainty whether or not Mr. Tennell was concealing a weapon. Mr. Tennell sued Officer Telthorster for negligently handling his gun, which caused injuries to his back. Mr. Telthorster sued the City of Navasota, alleging that the City was vicariously liable for the officer's negligence. Mr. Tennell non-suited the City of Navasota. Officer Telthorster moved for summary judgment based upon his official immunity. The trial court granted Officer Telthorster's Motion for Summary Judgment and Mr. Tennell appealed. The Court of Appeals concluded that Officer Telthorster failed to prove conclusively that he acted in good faith and reversed the summary judgment based on his defense of official immunity.
Official immunity is an affirmative defense which shields governmental employees from personal liability. The underlying purpose of this immunity is to encourage governmental employees to perform their official duties vigorously. A governmental employee is entitled to official immunity for the performance of discretionary duties that are within the scope of the employee's authority, provided that the employee acts in good faith.
The issue before the Court was whether the good-faith standard applies when a suspect sues for injuries related to an arrest. The Court explained that the good-faith element requires a defendant to show that a reasonably prudent officer, under the same or similar circumstances, could have believed that the disputed conduct was justified, based upon the information that the officer possessed at the time the conduct occurred. The Court held that Officer Telthorster's summary judgment evidence conclusively established that he acted in good faith while arresting Mr. Tennell. During the struggle, Officer Telthorster was not certain whether the suspect had a weapon. Mr. Tennell failed to controvert Officer Telthorster is evidence that he acted in good faith because he failed to show that no reasonable officer could have believed that the circumstances justified the conduct.
This opinion establishes that in a suit against an officer by a suspect for arrest-related injuries, the defending officer must show that a reasonably prudent officer, under the same or similar circumstances, could have believed that the conduct in dispute was justified based upon the information that the officer possessed when the conduct occurred. To controvert this evidence, the suspect must show that the officer was negligent and that no reasonable officer could have believed that the circumstances justified the officer's conduct. Please feel free to call any of our partners or associates with any questions that you may have at 361-881-9217 or fax us at 361-882-9437. |
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Volume II, No. 8, part 2
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