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.[1]  An invitee is one who enters on another's land with the owner’s knowledge and for the mutual benefit of both.[2]  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.[3]  A landlord does not have a duty to warn or protect an invitee against conditions that are naturally occurring and open and obvious.[4] Read More ›

The Borrowed Servant Doctrine – At What Point Will the General Employer’s Liability Be Severed?

Introduction: The Borrowed Servant Doctrine

The borrowed servant doctrine is applicable to situations where one employer loans its employee to another employer.[1]  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.”[2]  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.”[3] Read More ›

Texas Tort Claims Act: Are Physicians Independent Contractors or Employees?

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.[1]  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.[2] Read More ›

Diamond Offshore Services Ltd. v. Williams—Courts Must View Video Evidence Before Ruling on Issues of Admissibility

Introduction

In Diamond Offshore Services Ltd. v. Williams, an employee sued his employer for injuries arising from a workplace accident.[1]  The employee ultimately prevailed and the jury awarded “$10 million in damages, including almost $4 million for pain and suffering.”[2]  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.[3]  Plaintiff argued the video should be excluded under Texas Rule of Evidence 403, as the video was “unfairly prejudicial and misleading.”[4]  Without ever providing the reasoning behind her decision, the Trial Court Judge excluded the video from use at trial.[5] Read More ›

Reservation of Rights Letter and the Insured

Introduction: Reservation of Rights Letter

A reservation of rights is a means by which an insurer agrees to defend an insured against a claim or suit while simultaneously retaining its ability to evaluate, or even disclaim, coverage for some or all of the claims alleged by the plaintiff.[1] Read More ›

Permissive Interlocutory Appeals

Introduction & Overview

As a general rule, Texas appellate courts may only hear a case after judgment is finalized at the trial level.[1]  Consequently, interlocutory orders are typically not immediately appealable.[2]  This prevents a party in trial from delaying the proceeding to seek an appellate court’s opinion.  However, § 51.014 of the Texas Civil Practice and Remedies Code enumerates different types of orders which a party may appeal prior to the final judgment at trial.[3] Read More ›

Graves Amendment

The Graves Amendment, found in the Federal Transportation Equity Act of 2005, created immunity for vehicle lessors as to claims of vicarious liability arising out of the lessee's conduct during the rental period.

The relevant subsections of the Graves Amendment read as follows: Read More ›

United Scaffolding, Inc. v. Levine: Expanding Control for the Purpose of Premises Liability Claims

Introduction

When a plaintiff is injured on property owned by another two possible claims may arise—general negligence and premises liability.  A crucial component of premises liability claims, absent in general negligence claims, is control.  Owners of industrial workplaces often contract with multiple contractors to perform various operations on the premises.  When an employee of the owner of the property is injured by a defective condition created by a contractor, courts must determine whether the contractor was in control of the premises.  For a defendant to owe a duty to a plaintiff under a premises liability claim, the defendant must have been in control of the premises.[1]  If the defendant was not in control of the premises, there is consequently no responsibility for dangerous conditions existing on the property.[2] Read More ›

Potential Barriers and Limitations to Successful Cyber Subrogation

In a previous blog, we discussed “What is Cyber Subrogation?”  This week's blog will focus on potential barriers and limitations to successful cyber subrogation.  While this list is non-exhaustive, it gives an overview to the various barriers and limitations to successful cyber subrogation.  These barriers include (1) contractual waivers and limitations; (2) a lack of clear applicable standards; and (3) the first individuals to investigate the breach or attack are likely the later target defendants, i.e., the fox guarding the henhouse analogy. Read More ›

What is Cyber Subrogation?

Cyberattacks have become increasingly frequent and costly.  In 2015 alone, an estimated 300 million records were leaked and over $1 billion stolen.  By 2017, this number has only risen, with global companies becoming frequent targets.  This year, a specific malware cyber-attack orchestrated and launched on Tuesday, June 27, 2017 used a “NotPetya” attack.  The malware is called NotPetya because it masquerades as the Petya ransomware.  “This [malware] is definitely not designed to make money.  This is designed to spread fast and cause damage, with a plausibly deniable cover of ransomware”.[1] Read More ›

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