- The Oregon Rule and Presumption of Fault
- Drivers’ Liability: The Unavoidable Accident Defense
- Fraudulent Concealment: When does the statute of limitations begin to run for a breach of contract claim, if fraudulent concealment is asserted?
- Application of the Discovery Rule to Breach of Contract Claims
- Proper Procedure to Obtain Entry on Real Property of a Nonparty for Purposes of Inspection and Photographing
- Designating Unknown Responsible Third Parties: How to Properly Designate an Unknown Driver
- Premises Liability: Do Open and Obvious Naturally Occurring Conditions Pose an Unreasonable Risk of Harm?
- The Borrowed Servant Doctrine – At What Point Will the General Employer’s Liability Be Severed?
- Texas Tort Claims Act: Are Physicians Independent Contractors or Employees?
- Diamond Offshore Services Ltd. v. Williams—Courts Must View Video Evidence Before Ruling on Issues of Admissibility
Under the Oregon Rule, a vessel under power that strikes a fixed object is presumptively at fault. This presumption is closely related to the doctrine of res ipsa loquitor, which creates a rebuttable presumption of fault on the part of the person controlling the instrumentality. Moreover, these rules shift the burden of production and persuasion to the offending party. Read More ›
Texas courts acknowledge an automobile collision may be an “unavoidable accident,” which is defined as “an event not proximately caused by the negligence of any party to it.” Stated differently, an unavoidable accident “is an accident that ordinary care and diligence could not have prevented, or one which could not have been foreseen or prevented by the exercise of reasonable precautions.” Under Texas law, unforeseeable loss of consciousness can be considered an unavoidable accident. The purpose of an unavoidable accident instruction “is to ensure that the jury will understand that ‘they do not necessarily have to find that one or the other parties to the suit was to blame for the occurrence complained of.’” Read More ›
Fraudulent Concealment: When does the statute of limitations begin to run for a breach of contract claim, if fraudulent concealment is asserted?
Introduction: Fraudulent Concealment
In Texas, a breach of contract claim is governed by a four-year statute of limitations. Generally, the limitations period begins to run when a contract is breached. However, a defendant's fraudulent concealment of the breach tolls the statute of limitations until the fraud is discovered or should have been discovered with reasonable diligence. Determining when a plaintiff knew or reasonably should have known of the fraudulent concealment is generally a question of fact. The party asserting fraudulent concealment as an affirmative defense to the statute of limitations must establish the defendant (1) actually knew a wrong occurred; (2) had a fixed purpose to conceal the wrong; and (3) did conceal the wrong. Read More ›
Under Texas law, a four-year statute of limitations applies to breach of contract claims. A cause of action for breach of contract generally accrues when the contract is breached. However, the discovery rule may serve to delay the commencement of the limitations period. When applicable, the discovery rule will defer accrual of a cause of action until the plaintiff knew or, by exercising reasonable diligence, should have known of the facts giving rise to a cause of action. Read More ›
Proper Procedure to Obtain Entry on Real Property of a Nonparty for Purposes of Inspection and Photographing
Rule 205.1 limits what the trial court may order in relation to discovery from a nonparty. A party can gain entry on the land of the nonparty by filing a motion, requesting a hearing, and obtaining an order. A party may compel discovery in the form of entry on and inspection of real property from a nonparty only by obtaining a court order under Tex. R. Civ. P. 196.7. An order for entry onto the property of a nonparty may only be issued upon a showing of "good cause" and only if the discovery is relevant to the cause of action. In determining whether to grant the order, Texas courts conduct a greater inquiry into the necessity for the inspection, testing, or sampling because entry onto the property of a nonparty involves unique burdens and risks such as confusion and disruption of the defendant's business and employees. Read More ›
A responsible third-party is any person who is alleged to have caused or contributed in any way to causing the harm for which recovery of damages is sought. Tex. Civ. Prac. & Rem. Code § 33.011. When a party moves to designate an unknown person as a responsible third-party, Texas law provides additional requirements on the designating party. Accordingly, in a case stemming from an automobile collision, a party attempting to designate an unknown driver as a responsible third party must be aware of all requirements Texas law provides. Read More ›
Premises Liability: Do Open and Obvious Naturally Occurring Conditions Pose an Unreasonable Risk of Harm?
Introduction: Premises Liability
In Texas, a landlord can be held liable on a premise liability claim for an invitee’s injuries. An invitee is one who enters on another's land with the owner’s knowledge and for the mutual benefit of both. In order to establish premises liability, an invitee must show (1) the landlord’s actual or constructive knowledge of a condition on the premises by the landlord; (2) the condition posed an unreasonable risk of harm; (3) the landlord did not exercise reasonable care to reduce or eliminate the risk; and (4) the landlord’s failure to use such care proximately caused the plaintiff's injuries. A landlord does not have a duty to warn or protect an invitee against conditions that are naturally occurring and open and obvious. Read More ›
Introduction: The Borrowed Servant Doctrine
The borrowed servant doctrine is applicable to situations where one employer loans its employee to another employer. Whether the employee is a borrowed servant of another “hinges on whether the other employer or its agents have the right to direct and control the employee with respect to the details of the particular work at issue.” The doctrine is based upon respondeat superior, “the concept by which the master is vicariously liable for a servant’s torts committed in the course and scope of employment.” Read More ›
Introduction: Texas Tort Claims Act
In Texas, a hospital which is owned by a government and receives government funding is immune from lawsuits except under very limited circumstances described in the Texas Tort Claims Act (hereinafter “the Act”). The Act permits lawsuits against governmental entities only to the extent liability is imposed on an individual by state law and only upon the occurrence of particular fact patterns. A plaintiff may sue both the hospital and its physicians. However, if the physician is considered an employee of the hospital, they may be entitled to immunity under the Act. Read More ›
Diamond Offshore Services Ltd. v. Williams—Courts Must View Video Evidence Before Ruling on Issues of Admissibility
In Diamond Offshore Services Ltd. v. Williams, an employee sued his employer for injuries arising from a workplace accident. The employee ultimately prevailed and the jury awarded “$10 million in damages, including almost $4 million for pain and suffering.” The issue before the Texas Supreme Court was whether the Trial Court erred in excluding video surveillance of Plaintiff conducted by Defendant without first viewing the video. Plaintiff argued the video should be excluded under Texas Rule of Evidence 403, as the video was “unfairly prejudicial and misleading.” Without ever providing the reasoning behind her decision, the Trial Court Judge excluded the video from use at trial. Read More ›