Archives for posts with tag: damages

Premises Liability

Of prime importance to property owners and occupiers (tenants) is liability for damages to persons or property which occur on the owner’s or occupier’s property. Ownership or control of the premises upon which the damages occurred by itself will not create liability for the owner or occupier.  There also must exist a duty from the owner or occupier to the damaged person or property.  Also, control may be established through a showing of actual control or a right to control the area in which the damage occurred.  The control must relate to the activity that caused the injury complained of before a duty will exist.  Areas beyond the limits of an owner’s or occupier’s control will not establish such a duty.

Chapter 95 of the Texas Civil Practices & Remedies Code governs damage claims accruing on or after September 1, 1996, arising from negligent construction activities. A thorough discussion of that Chapter is well beyond the scope of this article.

In addition to control, an owner’s or occupier’s duty to a party will be determined by the legal status of that party. A party may be considered a trespasser, licensee or invitee.  A “trespasser” is someone who has no legal right to be on the property.  A “licensee” is a person who is present on the property with the permission of the owner or occupier, but for whom the owner or occupier has no business relationship.  A licensee is present on the property for his or her benefit only, and not that of the owner or occupier.  On the other hand, an “invitee” has a present business relationship with the owner or occupier and is present on the property for the mutual benefit of both parties.  A licensee or invitee may become a trespasser if his or her occupancy exceeds the scope of the rights granted to them.

Typically, owners and occupiers owe trespassers no duties other than to not injure them willfully, wantonly or through gross negligence. This has been the common law rule in Texas for many years, and has been codified in Section 75.007(b) of the Texas Civil Practices & Remedies Code.  For licensees, owners and occupiers owe the same duties that are owed to trespassers, and the additional duty to use ordinary care to make reasonably safe and adequately warn of dangerous conditions of which the owner or occupier is aware, but the licensee is not.  Actual instead of constructive knowledge of the dangerous condition by the owner or occupier is required.  Owners and occupiers are additionally responsible to invitees for their active negligence.  With respect to agricultural or recreational activities, Chapter 75 of the Texas Civil Practices & Remedies Code provides special protections to land owners engaged in such activities.

Texas courts have divided invitees into 2 categories: “public invitees” and “business visitors”. Public invitees are people who enter premises which are generally open to the public, such as governmental facilities and parks.  A business or merchant impliedly is “inviting” the public into its place of business.  Contractors, employees, and public servants are distinct categories of invitees.  By way of the invitation to the public, all entrants into those premises expect to be in a safe environment.  As such, owners and occupiers owe invitees the duty to exercise ordinary care to keep the premises reasonably safe, including the duty to inspect and discover latent defects, make safe any defects, or warn the invitees of the same.  For invitees, an owner or occupier is charged with any actual or constructive knowledge of the condition of the premises (i.e., conditions that the owner or occupier should have known of regardless of actual knowledge), and has a duty to make sure their invitees are reasonably safe from any such dangerous conditions or adequately warn the invitee of such conditions.

Even where a duty exists on an owner or occupier to provide a safe premises, liability will only occur where the breach of such duty proximately causes damages to the third party. Proximate cause is made up of two separate elements.  The first being “cause in fact”, which means that the negligent act or omission was a substantial reason that the injury occurred and without which, the injury would not have occurred.  The second element is “foreseeability”, which means that an ordinary and reasonably prudent person (which my first year contract law professor described as “Ward Cleaver”—Baby Boomers and Gen-Xers will understand) should have anticipated that such act or omission would result in such damage or injury.  These rules are general in nature, and several special situations have modified versions of these rules.  For example, premises liability relating to children, disabled persons, elevators and escalators, sporting events, and animals, each have modified rules relating to liability to the premises owner or occupier.

Under certain circumstances, an owner or occupier may be responsible for acts of third parties. The same rules as above apply for a third party act as for the owner’s or occupier’s direct negligence.  There must be a duty, a breach of that duty, and such breach proximately caused the injured party’s damages.  Most premises liability situations involving third parties are determined by proximate cause.  However, a third party’s act or omission may be a superseding act, breaking the chain of causation between the premises owner’s or occupier’s conduct.  A “superseding act” is an outside force that intervenes in a chain of events to cause an outcome that otherwise would not have occurred.  A superseding act can relieve an owner or occupier from liability relating to that act.

The criminal act of a third party is a common type of superseding act which may prevent the owner or occupier from becoming liable for an injury occurring on the premises. However, there are situations where an owner or occupier has been held responsible even where the criminal acts of a third party were involved.  In situations where such conduct is foreseeable and unreasonable, courts have imposed liability on the premises owner or occupier.

Employers have a duty to provide a safe workplace for its employees. Owners and occupiers have a duty to follow laws and ordinances which relate to safety of the premises, and the failure to follow such laws and ordinances may be considered to be per-se negligence.  Where an area or place has had so much criminal activity that has resulted in damage or injury to persons in and around such area, a premises owner or occupier may have a duty to protect its invitees against such dangers.  Note, however, that employers typically do not have a duty to warn an employee of conditions that are commonly known or already appreciated by the employee.  Of course, such duties will necessarily be affected by whether Worker’s Compensation insurance exists or not.

The principles underlying premises liability are in most instances purely fact driven. The analysis can be complicated, particularly when there may be more than one cause of the damage or injury or a superseding act.  Owners and occupiers of real property should always take advantage of liability insurance which will cover any negligence found against such owner or occupier, as well as provide the owner or occupier with a defense (attorney) against the prosecution of such claims.

Scott Alagood is board certified in Commercial and Residential Real Estate Law by the Texas Board of Legal Specialization and can be reached at alagood@dentonlaw.com or http://www.dentonlaw.com.

 

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Most people who are involved in an automobile accident can easily blame the other driver as being responsible for the collision. What many of these people don’t realize is that the other driver will try to blame them for the wreck, either in whole or in part–claiming what is commonly known as contributory negligence. When this happens, a jury will be asked to sort out who they believe was at fault, either in whole or in part, and then, if both parties are believed to be at fault, the jury will then assign a percentage of responsibility to each driver. For example, let’s say that the jury found the defendant was negligent because he pulled in front of you without warning while trying to get into a restaurant parking lot; but the jury also found you liable because you were trying to find a radio station to listen to which prevented you from acting sooner to avoid the wreck. In this scenario, the jury would then be asked to assign a percentage of responsibility to each of you. Why is this important? Because the percentage of liability that the jury assigns to you will reduce any damages awarded to you by that percentage (if 50% or less); or completely bar your ability to recover damages (if the jury finds you 51% or more responsible for the wreck). For example, if a jury found the defendant driver 60% responsible and you 40% responsible, and awarded $100.00 in damages, then your $100.00 recovery would be reduced by 40%, meaning you would only get $60. Conversely, if the jury found you 60% responsible and the defendant driver 40% responsible, you would not recover anything because the jury found you 51% or more responsible for the wreck. All of this can get rather confusing so the bottom line is do not put off consulting with a qualified personal injury trial attorney to assist you in determining if you have a claim and when a lawsuit must be filed to preserve that claim. Therefore, please feel free to contact me at 940.891.0003 to set up a cost-free consultation to discuss your case. *Please note that this Blog does not address cases involving multiple defendants. This is a separate beast which is better discussed in a consultation. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood Cartwright Burke PC.

If you’ve been hit by another car or truck, check to see if the driver is wearing a uniform or if the vehicle they are driving has company logos on it. In addition to the driver being held liable for his or her own negligence, their employer may also be liable if the driver was acting in the scope of their employment (in other words, if they are acting in the furtherance of the employer’s business). For example, if the defendant driver is making a delivery for his or her employer and hits you, he or she is probably acting within the scope of their employment. However, an employee is not acting within the scope of their employment if he or she departs from the furtherance of the employer’s business for a purpose of his or her own not connected with their employment and has not returned to the place of departure or to a place the employee is required to be in the performance of their duties. For example, if the defendant driver, while making a delivery, decides to run home to check on their dog and hits you pulling out of their driveway, the defendant driver would have deviated from the furtherance of his employer’s business. While the defendant driver is individually liable for his negligence, the employer would not be. If you have been injured in an automobile or truck accident, call Brian Cartwright at (940) 891-0003 to set up a cost-free consultation to discuss the facts of your case and determine what your rights are. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood Cartwright Burke PC.

If you have been attacked by a dog, you may be able to seek recovery of your medical expenses and other damages from the owner of the dog. To prove liability against an owner, you must establish: (1) the defendant was the owner of the animal; (2) the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others; (3) the defendant breached the duty; and (4) the defendant’s breach proximately caused your injuries and damages. Of course, the first thing you will hear Fluffy’s owner say is that the dog was always docile and never hurt anyone. Believe it or not this can be a defense to avoid liability. In other words, if an owner did not know and should not have known that their otherwise docile dog might attack you, then the law may not impose liability. The key is to determine what is “reasonable” under the circumstances, which is usually a question for a jury. For example, while Fluffy may have normally been a docile, loving dog, if the owner knew that Fluffy was a female with puppies, then the owner could be charged with knowledge that Fluffy would become aggressive and potentially attack someone in a misguided belief that she was protecting her puppies, requiring the owner to take steps to protect persons who might come in contact with the dog. Another key in determining what is reasonable is finding out if there were any laws or local ordinances, sometimes called “Leash Laws,” governing the handling of the animal. These may help you in establishing liability. Obviously, this is a very cursory overview of Texas law involving a lawsuit against an owner of a dog who attacks you. There are other considerations that must be taken into account to determine if you have a case or not. Therefore, if you have been bitten by an animal, please call me at (940) 891-0003 to set up a cost-free consultation to discuss your case.
*Please note that this Blog does not apply to wild animals, dangerous domesticated animals, or landlord liability, which are separate issues better discussed in separate blogs. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood&Cartwright, P.C.

If you are the victim of medical malpractice, you may want to consider requesting copies of your medical records immediately. Obviously, any attorney you contact will need the records to assist them in determining whether you have a case. Not so obvious, however, is the need to protect yourself from destruction or alteration of the records. Believe it or not, there are some healthcare providers, although not many, who will alter records by either adding favorable information to support their claim that they did nothing wrong or by deleting unfavorable information that will establish they were guilty of medical negligence. Sometimes such alterations do not occur until after you have hired an attorney and put the healthcare provider on notice of your claim. By having the original set, you will be able to establish that an alteration has occurred. When obtaining medical records from a hospital, you can reduce the cost by requesting records on a CD, digital or other electronic medium pursuant to Section 241.154(b)(3) of the Texas Health and Safety Code. The retrieval or processing fee may not exceed $75 (which can be adjusted upward for inflation so expect a slightly higher rate) and the actual cost of mailing or shipping. I look forward to visiting with you next time.

Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood & Cartwright, P.C.

With the recent snow storms in the Northeast, an interesting issue is raised that many people may not know about. Most people believe that if you slip and fall on ice outside of a store that you are entering, the owner is automatically liable to you, including for your medical expenses. Not necessarily so in Texas. In such instances, whether a premises owner/operator is liable to you will depend on the facts and circumstances of how that ice got there. To start with, it should be noted that premises owners and operators do owe a duty to keep their premises safe for invitees against conditions on the property that pose unreasonable risks of harm. This duty, however, does not render the business premises owner or operator an insurer of the invitee’s safety. Thus, to prevail as the invitee plaintiff in a slip-and-fall case, the injured person has to prove (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (2) the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner/operator’s failure to use such care proximately caused the plaintiff’s injuries. Importantly, if you were the person who slipped and fell in the scenario that we have presented, you would have to show the ice upon which you fell was an unreasonably dangerous condition. If there was no unreasonably dangerous condition, then, as a matter of law, the store owner/operation owed you no duty, and you could not recover on your slip and fall claim. One could argue that ice as a matter of common sense automatically presents an unreasonably dangerous condition; however, this is not the law in Texas. Whether ice poses an unreasonably dangerous condition or not depends on how it got there. In Texas, courts hold that naturally occurring ice that accumulates without the assistance or involvement of unnatural contact is not an unreasonably dangerous condition sufficient to support a premises liability claim. A natural accumulation of ice is one that accumulates as a result of an act of nature, and an unnatural accumulation refers to causes and factors other than inclement weather conditions (i.e., to causes other than the meteorological forces of nature). So does that mean then that if the owner/operator takes any steps to remove any ice accumulations that he will then be liable, as opposed to just leaving the ice alone to avoid
liability? The answer is no. Salting, shoveling, or applying a chemical deicer to a natural ice accumulation does not transform it into an unnatural one. Courts typically hold that to find otherwise would punish business owners who, as a courtesy to invitees, attempt to make their premises safe. Similarly, ice that melts and later refreezes is still deemed a natural accumulation. In short, in order to hold an owner or operator of the business premises liable, you will have to establish that the presence of the ice was not the result of natural accumulation, which in some instances can be a difficult burden. To determine if you have a case, you need to consult with a qualified personal injury trial attorney. Therefore, please feel free to contact me at 940.891.0003 to set up a cost-free consultation to discuss your case. *Please note that this Blog applies only to invitees, and not licensees (for example, going to your neighbor’s for a social gathering) or trespassers, which impose different duties on the premises owner than in situations involving invitees. Again, you should consult with qualified counsel to determine if you fall within these categories and how such classifications may impact your case. I Iook forward to visiting with you next time.

Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood & Cartwright, P.C.

OvertimeOverhead.  It’s a challenge facing employers and employees.  For many businesses, labor cost is the single greatest overhead expense.  Unfortunately, many employers try cutting corners that they should not, in particular in the area of overtime wages.  The Fair Labor Standards Act (or FLSA) is a federal labor law that requires employers to pay overtime compensation (at time-and-a-half) to employees who are not exempt under the Act for all hours worked over a prescribed threshold period (typically, 40 hours per week).  Most employees are non-exempt, meaning that they are entitled to overtime pay.  The most common exceptions to this rule involve some administrative, executive and professional employees, computer professionals, outside sales employees, and certain retail employees.  Liability exists under the FLSA even for unintentional violations.

But what if a business only employs a few people?  Is the business exempt from paying overtime?  The answer is no. Unlike many other federal laws, the FSLA does not depend upon the number of persons employed.  Instead, the FLSA covers businesses engaged in commerce or in the production of goods for commerce (i.e., handling, selling, or otherwise working, on goods or materials that have been moved in or produced for commerce).  The FLSA’s coverage is very broad, and the courts typically interpret it that way.

But what about salaried managers and individuals that have really important sounding, executive job titles?  Are they exempt?  If the manager’s/executive’s salary is less than $100,000.00, then the inquiry typically focuses on the nature of the job and how the employee performs it.  For example, if the employee cannot hire or fire other employees, or does not regularly direct the work of at least 2 employees, overtime must usually be paid.

But what about salaried employees?  Does overtime get factored into their pay?  The answer is typically yes, in most instances overtime is still required.

Is it acceptable for an employer to get around overtime by allowing the employee to volunteer their time?  No.  The FLSA does not recognize “voluntary unpaid overtime” or “donated time” as legitimate exceptions to avoid paying overtime.

What about a signed, written agreement with the employee waiving any claim they might have to overtime?  Is that acceptable?  Under the FLSA, such agreements are null, void and completely unenforceable.

Is comp time an acceptable alternative to paying overtime?  For a governmental employer, probably so.  In the private sector, comp time is generally not permissible.  It should be noted that a private employer may adjust an employee’s schedule within the same week to ensure that their total hours worked do not exceed 40 hours.  However, overtime hours may not be averaged out over a longer period of time except in exceedingly narrow cases of certain employees of residential care facilities.   Otherwise, any overtime worked within a workweek must be paid for that workweek.

Is overtime required to be paid to an independent contractor?  If a worker is truly an independent contractor, then overtime may be avoided.  The problem is that too often employers get cute, slap an independent contractor label on the worker, but then treat them as if they are employees.  If workers are truly employees, regardless of the title they hold, and if they work more than 40 hours in a workweek, the employer must pay the worker overtime pay if they do not qualify for an overtime exemption.  There is no way to contract around that.  There is no piece of paper and no amount of explanation that will overcome the finding of an employment relationship if the Department of Labor or the IRS, or a state employment security agency, determines that an employer/employee relationship exists.  For this reason, employers must be very familiar with the various tests for determining whether a worker is an employee or an independent contractor.  The controlling factor is whether the employer controls the details of how the person’s services are performed.

At the end of the day, uncertainly under the FLSA can cause serious problems.  Court’s may award an affected employee damages, including unpaid base wages, overtime pay (at time-and-a-half), liquidated damages of an amount equal to all of the employee’s unpaid wages and overtime pay, attorney’s fees, and court costs.  So for both employers and employees, care should be taken to make sure that the FLSA is followed and overtime is paid where required.

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