Melanie L. Fry and Josué J. Galván 2017-12-20 05:25:00
While nine-digit product liability verdicts dominated headlines elsewhere, the Texas Supreme Court had a different focus in 2017. The court went back to the basics in personal injury law, rendering opinions on issues like duty, causation, governmental immunity, and establishment of a prima facie case of defamation. Existence of a Duty The Texas Supreme Court continues to assess when and why a duty exists to control others. In Pagayon v. Exxon Mobil Corp.,1 friction between convenience store employees led to a fistfight, resulting in the death of a patron. The court explicitly rejected the broad duty imposed on employers to control employees in Section 317 of the Restatement (Second) of Torts, holding that Exxon owed no duty to supervise its employees under the circumstances. In UDR Tex. Props., L.P. v. Petrie,2 the court held that a property owner owed no duty to protect a visitor from criminal acts of third persons. The court clarified that foreseeability and reasonableness of risk of harm to an invitee must be analyzed separately, and that the factors outlined in the landmark case Timberwalk Apartments, Partners, Inc. v. Cain3 apply only to the foreseeability analysis. Causation Evidence In Bustamante ex rel. D.B. v. Ponte,4 a premature infant suffered near blindness from developing retinopathy of prematurity, or ROP. The Texas Supreme Court reversed the court of appeals’ judgment for the defendants and held that legally sufficient evidence supported the jury’s finding that the neonatologist’s negligence in failing to timely screen and treat the ROP more likely than not caused the infant’s impaired vision. The court held that the court of appeals erred by not applying the substantial factor test, by rejecting the plaintiffs’ statistical evidence, and by holding that the plaintiffs’ testimony was conclusory. Texas Tort Claims Act In Marino v. Lenoir,5 plaintiffs brought a medical malpractice action following the death of a pregnant mother and her unborn twins. The court held that a doctor paid by a governmental unit, the University of Texas Medical System Foundation, was not entitled to Texas Tort Claims Act protection for governmental unit employees. The foundation did not own the clinic where the patient was treated, control physicians at hospitals not owned by the foundation, or control the doctor’s day-to-day tasks. In Univ. of the Incarnate Word v. Redus,6 a University of the Incarnate Word, or UIW, police officer used deadly force on a student following a traffic stop off campus, and the student’s parents sued. The Texas Supreme Court held that UIW was a “governmental unit” entitled to interlocutory appeal of the denial of its plea to the jurisdiction based on governmental immunity. Under the Texas Tort Claims Act, the university derives its status and authority to employ peace officers from the Legislature. Because law enforcement is uniquely governmental, UIW is a governmental unit as to that function. Texas Citizens Participation Act Texas courts continue to construe the state’s relatively new Citizens Participation Act, Texas’ anti-SLAPP statute, which allows motions to dismiss claims that are based on the exercise of free speech. A plaintiff can avoid dismissal by establishing a prima facie case for each element of the claim. In two cases, the Texas Supreme Court analyzed whether the plaintiffs met that burden on a defamation claim: a statement disparaging a youth baseball club for not preventing a coach’s affair was not defamation per se,7 but a magazine article’s “Welfare Queen” reference was defamatory.8 Of note, the Supreme Court criticized one court of appeals’ reliance on Wikipedia as the linchpin on a critical issue as improper. Notes 1) No. 15-0642, 2017 Tex. LEXIS 604 (Tex. June 23, 2017). 2) 517 S.W.3d 98 (Tex. 2017). 3) 972 S.W.2d 749 (Tex. 1998). 4) 529 S.W.3d 447 (Tex. 2017). 5) 526 S.W.3d 403 (Tex. 2017). 6) 518 S.W.3d 905 (Tex. 2017). 7) Bedford v. Spassoff, 520 S.W.3d 901 (Tex. 2017) (per curiam). 8) D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d (Tex. 2017). MELANIE L. FRY is a member in the San Antonio office of Dykema Cox Smith, where she focuses on litigation and appeals. She previously served as a law clerk for Texas Supreme Court Justice Don R. Willett. JOSUÉ J. GALVÁN is an associate in the litigation group of Dykema Cox Smith in San Antonio.
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