Melanie L. Fry 2016-12-20 18:04:54
In 2016, the Texas Supreme Court provided clarification in a number of personal injury areas, including the Texas Medical Liability Act, the Texas Tort Claims Act, premises liability law, and Chapter 95 of the Texas Civil Practice and Remedies Code. Texas Medical Liability Act In Christus Health Gulf Coast v. Carswell,1 the court held that a fraud claim alleging that a hospital took postmortem actions to cover up malpractice, including improperly obtaining the widow’s consent for a private autopsy, was a health care liability claim. Despite finding that the professional or administrative services underlying the plaintiffs’ complaint were directly related to allegedly improper health care, the court held that the plaintiffs’ post-mortem fraud claim did not relate back to the filing of the original medical malpractice claim and was thus barred by limitations. In Hebner v. Reddy,2 the court held that pre-suit service of a qualifying expert report upon an “eventual named party,” after providing requisite notice, complied with the expert-report deadline in the TMLA. Ferae Naturae In Union Pacific Railroad Co. v. Nami,3 the court applied the common law doctrine of ferae naturae (property owner is generally not liable for harm caused by indigenous wild animals) to bar the claim of a railroad employee who was bitten by mosquitoes and contracted West Nile virus. Premises Liability and Premises Defects In Sampson v. University of Texas at Austin,4 the court clarified that “condition or use of tangible property” under the Texas Tort Claims Act means that the contemporaneous action or service (use) or state of being (condition) of the tangible personal property itself caused the injury, while “premises defect” means that the tangible personal property created the dangerous real-property condition. The court concluded that a negligence claim for injuries caused by an extension cord strung across a pedestrian walkway was based on a premises defect. In Occidental Chem. Corp. v. Jenkins,5 an employee sued both the current owner of a chemical plant (his employer) and the former owner of the plant following an injury caused by an acid-addition system installed by the former owner. The court held that premises liability— and not negligence—principles apply to a property owner who creates a dangerous condition on its property, regardless of how the injured plaintiff pleads. If an injury occurs after the condition’s creator has conveyed the property, the premises liability claim generally lies against the new owner. TCPRC Chapter 95 In First Tex. Bank v. Carpenter,6 a bank’s “go-to guy” for roof repairs was injured while showing an insurance adjuster the bank’s roof damage. The court of appeals held that the plaintiff was not a “contractor” under Chapter 95 of the TCPRC because there was no actual contract between the parties. The Supreme Court disagreed, holding that an “actual” contract does not have to exist for a person to be considered a contractor for purposes of Chapter 95. In Ineos USA, LLC v. Elmgren,7 an independent contractor’s employee was injured at a petrochemical plant and sued the plant and a plant employee. The court held that Chapter 95 applies to all categories of negligence claims, not just premises liability, but it does not apply to claims against a property owner’s agent or employee who does not own the property, even if the agent is acting in a managerial capacity on the property owner’s behalf. Notes 1) No. 14-0362, 2016 Tex. LEXIS 392 (Tex. May 20, 2016). 2) No. 14-0593, 2016 Tex. LEXIS 412 (Tex. May 27, 2016). 3) No. 14-0901, 2016 Tex. LEXIS 571 (Tex. June 24, 2016). 4) No. 14-0745, 2016 Tex. LEXIS 486 (Tex. June 10, 2016). 5) 478 S.W.3d 640 (Tex. 2016). 6) 491 S.W.3d 729 (Tex. 2016). 7) No. 14-0507, 2016 Tex. LEXIS 504 (Tex. June 17, 2016). MELANIE L. FRY is a senior attorney in the litigation and appellate groups of Dykema Cox Smith in San Antonio. She previously served as a law clerk for Texas Supreme Court Justice Don R. Willett.
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