May 8, 2019
Partner Aaron Burke, Senior Counsel Tim George, and Senior Associate Nathan Winkler obtained a favorable ruling from the Supreme Court of Texas affirming summary judgment in favor of FSSV’s oil and gas client in the trial court. The opinion strengthens protections for property owners, including oil & gas operators, who hire contractors to work on their property. The case arose from the death of an employee of the contractor hired to drill a well on FSSV’s client’s mineral lease. The plaintiffs first asserted ordinary negligence and premises liability claims against FSSV’s client, but when faced with its motion for summary judgment, added a claim of negligent hiring for selecting the worker’s own employer to drill the well. The trial court determined there was no evidence FSSV’s client had actual knowledge of the danger or condition, and granted summary judgment in its favor on all claims. The court of appeals affirmed the trial court’s summary judgment on most claims, reasoning that the plaintiffs were required to prove the property owner had actual knowledge of the of the danger or condition that resulted in injury in order to prevail, and the lack of actual knowledge of the specific condition was established. The one exception was the negligent hiring claim, which the court of appeals considered dissimilar. FSSV sought review and briefed the judgment on this last claim in the Supreme Court of Texas. The Supreme Court held negligent hiring requires two separate acts of negligence: negligence in hiring the employee; and the employee’s subsequent act or omission. Because both are necessary, the Supreme Court agreed the plaintiffs had to show actual knowledge of the danger or condition in order to recover for negligent hiring. Since the plaintiffs failed to show such actual knowledge, the court rendered judgment against plaintiffs in favor of FSSV’s client.
April 16, 2019
D Magazine describes attorneys featured on the “Best Lawyers in Dallas 2019” list as “members of the legal community representing the people and institutions of Dallas with mastery and drive.” Honorees are selected through peer-review voting, with the final selections determined by an independent panel of distinguished attorneys who work with editors at the publication.
February 19, 2019
On February 19, 2019, the Court of Appeals Fifth District at Dallas denied a motion for hearing en banc in a case in which FSSV senior partners Thomas W. Fee and William M. Toles obtained a unanimous defense verdict on June 8, 2018. Following the unanimous defense verdict, the trial court granted a motion for mistrial filed by plaintiff counsel. FSSV filed a petition for writ of mandamus, and the Court of Appeals ordered the court to vacate its mistrial order and sign a judgment on the defense verdict. Plaintiff then sought a rehearing en banc in the court of appeals, which the court denied. The case arose out of an accident that occurred on November 18, 2014 in Freestone County, Texas. FSSV’s client hired a trucking company to deliver product to Katy, Texas. While in route to Katy, Texas the motor carrier hired by FSSV’s client struck a truck on the shoulder of Interstate 45, killing the driver of the truck and injuring the passenger in the truck. The passenger of the truck alleged that he suffered a traumatic brain injury as a result of the accident. Plaintiff demanded $7 million prior to trial and asked the jury to award $15 million in closing argument.
February 5, 2019
On February 5, 2019, FSSV Senior Partner Jeff C. Wright obtained a successful defense verdict in a nonsubscriber case that went to binding, Final Arbitration. Plaintiff, a registered nurse, claimed her employer (FSSV’s healthcare client) failed to provide a safe workplace, failed to establish reliable emergency procedures, failed to train its employees and supervisors how to handle emergency situations, and failed to practice emergency procedures with its employees. She alleged that she suffered a vaginal prolapse and a debilitating back injury that required epidural steroid injections and trial spinal cord stimulator. In her Demand for Arbitration, Plaintiff alleged damages between $500,000 and $1,000,000. Senior Partner Jeff Wright denied liability and also challenged the nature and extent of Plaintiff’s alleged injuries and damages. At the final, 2-day Arbitration Hearing, both sides presented live witnesses, video testimony, and documentary evidence to the Arbitrator. At the conclusion of the hearing, Plaintiff requested an award of $452,341 in damages. After presentation of all testimony and evidence, the Arbitrator was not persuaded that anything FSSV’s client did or failed to do was a substantial factor in bringing about Claimant’s alleged injuries. Accordingly, the Arbitrator found in favor of Defendant and ordered that Plaintiff take nothing on her claims.
January 25, 2019
On January 25, 2019 Senior Partner Howard J. Klatsky obtained a Final Judgment in favor of client Texas Motor Speedway, Inc. and against Plaintiffs, who were seeking to recover a damages award (for past and future medical expenses, past and future pain, suffering, and mental anguish, physical impairment/disfigurement, and exemplary damages) in an amount exceeding $8,000,000.00.
The Plaintiffs were seeking to prosecute claims of negligence and gross negligence arising out of a fall that their adult son (who was traveling in a wheelchair) sustained on a ramp leading up to the grandstands during the early stages of a Sunday NASCAR race. In the Motion for Summary Judgment Texas Motor Speedway, Inc. demonstrated that the Plaintiffs’ claims, no matter how pled, could only be properly characterized as claims sounding in premises liability and that the Speedway did not know of, and reasonably should not have known of, the alleged dangerous condition of the ramp at the time of the fall.
The 393rd Judicial District Court of Denton County, Texas granted the Motion and entered a Final Judgment dismissing all of the Plaintiffs’ claims with prejudice and taxing all costs of court in favor of Texas Motor Speedway, Inc. and against Plaintiffs.
December 13, 2018
Senior Partners Daniel Karp and Jennifer Lee obtained a defense verdict on behalf of their clients Greg Hittner and Werner Enterprises, Inc. The trial lasted five (5) days in Dallas Federal Court and arose from a trucking accident that occurred in Hopkins County (East Texas) in February 2015. Werner’s 18-wheeler jackknifed across Interstate 30 in dark and wet/icy conditions and a second 18-wheeler then struck the Werner trailer rendering its trailer lights inoperable. The Plaintiff was driving the same direction and came upon the accident several minutes later and ran into the side of the Werner trailer that was blocking the left lane of travel. The facts revealed that despite no prior issues with the Werner parking brake that it had spontaneously activated on the Werner vehicle, causing Mr. Hittner to encounter a sudden emergency and lose control of his vehicle. Plaintiff alleged that Hittner was driving too fast for conditions and lost control and then activated the parking brake in an effort to prevent his jackknife. Plaintiff alleged a serious knee injury and underwent surgery, and further alleged serious back problems for which she obtained multiple injections. Plaintiff’s counsel asked for more than 1.5 Million dollars in closing arguments. The jury found Hittner/Werner were not negligent, and assigned 70% negligence to the Plaintiff and 30% to the other 18-wheeler, resulting in no recovery.
December 9, 2018
Senior Partner Tom Fee has been named Chair of the Complex Tort and Product Liability Practice Group for USLAW Network, Inc. Complex Tort and Product Liability Practice Group. This group is comprised of a nationwide network of experienced attorneys committed to providing the highest quality legal services and cost-effective solutions to the full range of product liability, catastrophic injury, wrongful death and complex tort exposures, including toxic and mass tort, class actions and claims under consumer protection statutes.
December 3, 2018
Senior Partner Brett Smith, Senior Partner Daniel Karp and Senior Counsel Tim George obtained a favorable ruling from the Court of Appeals Fifth District of Texas at Dallas affirming summary judgment in favor of FSSV’s general contractor client in the trial court. The opinion strengthens protections for contractors in the face of injury claims by subcontractor employees and, in particular, recognizes that the implementation of safety programs at a job site does not give the general contractor contractual or actual control over a subcontractor’s work for purposes of liability. The case arose out of a construction accident injury sustained by an employee of a subcontractor when he fell from a “rebar cage” while attempting to place a concrete form on the cage. The injured subcontractor employee alleged that FSSV’s general contractor client owed a duty to the injured subcontractor employee to keep him safe and breached that duty by permitting and instructing the subcontractor to work under dangerous conditions. He argued that FSSV’s general contractor client retained sufficient contractual right of control and exercised sufficient actual control to create such a duty. The Court of Appeals noted in consideration of appellant’s argument that the right of control must be more than a general right to order work to stop and start, or to inspect progress; that the supervisory control must relate to the activity that actually caused the injury, and grant the owner at least the power to direct the order in which work is to be done or the power to forbid it being done in an unsafe manner; and that if the contract does not explicitly assign control over the manner of work to the general contractor, then the Plaintiff must present evidence of the actual exercise of control by the general contractor. Although FSSV’s general contractor client referred to itself as the “Controlling Employer for their Multi-employer Worksites” as defined by OSHA, it also explained that its duty of reasonable care was “less than what is required of an employer with respect to protecting its own employees”. The Court of Appeals stated in its opinion that implementation of a safety manual, its undertaking of a duty of reasonable care to prevent and discover safety violations, and its enforcement of subcontractor’s compliance with safety and health requirements did not constitute contractual control that related specifically to the injury the alleged negligence causes. With respect to actual control, the Court of Appeals found that FSSV’s general contractor client did not exercise control that related to the injury the alleged negligence caused and did not specifically approve the dangerous act.
November 14, 2018
On November 14, 2018 Senior Partner Howard J. Klatsky and Senior Associate Lance L. Livingston obtained an Order granting Motion for Summary Judgment in favor of client Leitz Tooling Systems, LP from the United States District Court for the Northern District of Texas, Dallas Division. The Plaintiff was seeking to prosecute claims for alleged discrimination in violation of the Americans with Disabilities Act (ADA) and for alleged retaliation in violation of Section 451.001 of the Texas Labor Code. In the Motion, Leitz argued that the Plaintiff was unable to present a prima facie case supporting these claims and that these claims both failed, as a matter of law. The Court agreed, noting (among other things) that the Plaintiff presented no evidence to substantiate (or even plausibly support) his allegations that his injury played any motivating factor in his termination and that he had presented no evidence of any accommodation request that was ever made by him and not granted by Leitz. The Court also rendered a Judgment that Plaintiff take nothing on each of his claims.
October 29, 2018
On October 29, 2018, a Dallas County (Texas) jury rendered a unanimous favorable defense verdict as to Fee Smith’s client Dallas Lutheran School. Four (4) Plaintiffs alleged claims including negligence, negligent misrepresentation, breach of contract, violations of the Deceptive Trade Practices Act, and gross negligence against Dallas Lutheran stemming from an inappropriate relationship between a Dallas Lutheran teacher and a student. Plaintiffs made multi-million dollar demands and refused to negotiate in response to Defendant’s last pre-trial offer of $500,000.00. The jury only awarded two (2) of the Plaintiffs damages which included $25,000.00 to one and $60,000.001 to another. Dallas Lutheran was only held to be 20% and 10% responsible to these Plaintiffs, respectively. Thus, the total award against Dallas Lutheran School will not exceed $11,000.00. This was a big win, in light of this case being highly publicized in the media by the plaintiffs.
1 The Court has not yet determined if this Plaintiff has standing and we have addressed this issue which still requires judicial determination under Texas law.
September 23, 2018
Thomas W. Fee, Daniel M. Karp, Howard J. Klatsky, Bret A. Sanders, Scott W. Self, William M. Toles and Jeff C. Wright
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations.
FSSV senior partners William M. Toles and Scott W. Self obtained a defense verdict for FSSV's client in a trial in state court in Tarrant County, Texas, in a case involving allegations of car dealer negligence. The plaintiff, a pedestrian who was filling her SUV with gas, was struck by a car that FSSV’s client had sold approximately 3½ months before the accident. The car’s owner and her boyfriend, who was driving the vehicle when it struck the plaintiff, alleged that the car’s brakes failed. The plaintiff suffered a number of severe injuries and had medical bills of $491,000 as a result of the accident. The plaintiff alleged that FSSV’s client failed to inspect and service the car properly before selling it and therefore asked the jury to award damages in excess of $6 million. Plaintiff counsel previously demanded $5.75 million prior to trial. FSSV partners Toles and Self showed the jury that the accident was caused by the negligence of the car’s owner and driver, rather than by FSSV’s client. After a week of trial, the Tarrant County jury rendered a defense verdict for FSSV's client. Toles and Self were recently named “Best Lawyers in Dallas 2018”
by D Magazine.
D Magazine describes attorneys featured on the “Best Lawyers in Dallas 2018” list as “members of the legal community representing the people and institutions of Dallas with mastery and drive.” Honorees are selected through peer-review voting, with the final selections determined by an independent panel of distinguished attorneys who work with editors at the publication.
On March 22, 2018, FSSV senior partner Michael Sharp and senior counsel Robyn Wise obtained a defense verdict for FSSV's client in state court in Collin County, Texas. The case arose from a trucking accident that occurred in McKinney, Texas. FSSV’s motor carrier client was operating a tractor-trailer northbound on I-75 when their driver encountered traffic that suddenly stopped for road construction. The truck driver contended that the construction restricted his view of traffic traveling ahead of him. The truck driver took evasive action, but collided with the rear of the Plaintiff’s vehicle. Plaintiff argued that FSSV’s client was negligent for failing to maintain a proper lookout, failing to apply his brakes in a reasonable manner, failing to maintain proper control of his vehicle, and driving while distracted. Plaintiff claimed injuries to her neck, back and lower extremities. She received extensive medical care and sought recovery for past and future medical expenses, impairment, pain and suffering. Plaintiff’s counsel demanded $1,000,000 prior to the start of trial. FSSV asserted a sudden emergency defense although the presiding judge refused to submit that definition to the jury. Nevertheless, the jury found no negligence on the truck driver after deliberating for approximately 30 minutes.
On March 6, 2018, FSSV Senior Partner Jeff C. Wright obtained a successful defense verdict in a Nonsubscriber lawsuit that went to binding, Final Arbitration in Edinburg, Texas. The Plaintiff initially filed her lawsuit in the Hidalgo County Court, seeking an unspecified amount of damages for a displaced, fractured femur that allegedly resulted from a fall at work. Since Plaintiff’s claims fell within the scope of an Arbitration Agreement between Plaintiff and FSSV’s client, Jeff Wright filed a Motion to Compel Arbitration that was hotly contested by Plaintiff and her attorney. After oral argument and taking the matter under advisement, the Hidalgo County Court Judge granted our Motion to Compel Arbitration, which was a good initial victory given the South Texas venue. Thereafter, the litigation proceeded in Arbitration. At the final Arbitration Hearing, Plaintiff asserted negligence claims and sought an award of $153,000 in damages, plus an unspecified amount for mental anguish, pain and suffering. After presentation of all testimony and evidence, the Arbitrator agreed with the defense argument presented by FSSV senior partner Jeff Wright and concluded that (1) FSSV’s client did not breach its duty to exercise reasonable care to provide a safe place to work, and that (2) Plaintiff’s alleged injuries and damages were not caused by any negligent act or omission on the part of FSSV’s client. The Arbitrator ordered that Plaintiff take nothing by her lawsuit.
Announcing the selection of Scott W. Self among America’s Top 100 Civil Defense Litigators® for 2018. Selection to America’s Top 100 Civil Defense Litigators® is by invitation only and is reserved to identify most exceptional Civil Defense Litigators in throughout the nation.
Candidates are carefully screened through comprehensive Qualitative Comparative Analysis based on a broad array of criteria, including the candidate’s professional experience, litigation experience, significant case results, representative high stakes matters, peer reputation, and community impact in order to rank the candidates throughout the state.
Only the top 100 qualifying defense litigators in each state will receive this honor and be selected for membership among America’s Top 100 Civil Defense Litigators®. With these extremely high standards for selection to America’s Top 100 Civil Defense Litigators®, less than one-half percent (0.5%) of active attorneys in the United States will receive this honor — truly the most exclusive and elite level of litigators in the community.
FSSV senior partner Scott W. Self and senior counsel Kelly C. Walker obtained a defense verdict for FSSV's client in a trial in state court in Denton County, Texas, involving complex environmental issues. The plaintiff, which owns real property in Denton County, claimed that FSSV's client, a heavy civil contractor, had unlawfully removed fill dirt from the plaintiff's property and dumped contaminants onto the property. The plaintiff demanded more than $13 million before trial and asked the jury to award damages in excess of $8 million during trial. FSSV attorneys Self and Walker showed the jury that FSSV's client had lawfully purchased the fill dirt from the landowner's agent and had brought non-hazardous and commercially useful replacement material back to the property. After two weeks of trial, the Denton County jury rendered a unanimous defense verdict for FSSV's client.FSSV senior partner Scott W. Self and senior counsel Kelly C. Walker obtained a defense verdict for FSSV's client in a trial in state court in Denton County, Texas, involving complex environmental issues. The plaintiff, which owns real property in Denton County, claimed that FSSV's client, a heavy civil contractor, had unlawfully removed fill dirt from the plaintiff's property and dumped contaminants onto the property. The plaintiff demanded more than $13 million before trial and asked the jury to award damages in excess of $8 million during trial. FSSV attorneys Self and Walker showed the jury that FSSV's client had lawfully purchased the fill dirt from the landowner's agent and had brought non-hazardous and commercially useful replacement material back to the property. After two weeks of trial, the Denton County jury rendered a unanimous defense verdict for FSSV's client.
Jennifer Mauer Lee, Partner in our Dallas office, was recently selected to serve as a Course Director for the 2018 Advanced Personal Injury continuing legal education program. Ms. Lee will serve for the Dallas event while Judge David Canales will serve in San Antonio and Mark Murray will serve in Houston. This program is an annual course offered by the Texas Bar CLE and the Litigation Section of the State Bar of Texas. 2018 will mark the program's 34th annual course. We are pleased to have Ms. Lee serve as a course director for this distinguished event.
December 30, 2017
Congratulations to FSSV Partners, Aaron J. Burke and Jennifer Mauer Lee for being recognized as outstanding young lawyers in the
North Texas area.
November 18, 2017
Photographed from left to right: Thomas W. Fee, Scott W. Self and William M. Toles
Scott Self was inducted into the Dallas Chapter of the American Board of Trial Advocates (ABOTA) on November 18, 2017. ABOTA is a national association of trial lawyers and judges dedicated to the preservation and promotion of the civil jury trial right provided by the Seventh Amendment to the U.S. Constitution. Membership is by invitation only. Senior Partner Tom Fee and Partner William Toles are also members of ABOTA.
September 21, 2017
Clint V. Cox, IV, Thomas W. Fee, Howard J. Klatsky, Bret A. Sanders, Scott W. Self, William M. Toles and Jeff C. Wright
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations.
September 10, 2017
In the wake of Hurricane Harvey, FSSV stands ready to assist our clients with risk assessment and claims handling. Our Austin, Dallas and Houston based attorneys are experienced in managing catastrophic weather-related losses regarding first- and third-party personal/commercial property, casualty and coverage. Should you or your business have experienced a loss, be in the process of managing pending risk or need coordinating counsel for diligence on existing insuring/commercial contracts, our attorneys and staff are available to help. If you have specific questions, please contact our lead partner, Clint Cox, at (972) 934-9100.
August 3, 2017
FSSV Obtains Summary Judgment in Apartment Assault Case
Lemus v. Cookscreek 255, LLC, et al; Dallas County District Court
On August 1, 2017 Partner Howard J. Klatsky obtained a final Summary Judgment in the 192nd Judicial District Court of Dallas County in favor of the firm’s clients, who had been sued for premises liability, deceptive trade practices, nuisance, breach of contract, and other causes of action. These claims were asserted after a third party, who entered an apartment unit in the early morning hours through a window that had an alleged defective lock, assaulted and unsuccessfully attempted to rape a female occupant. Plaintiffs were seeking to recover a multi-million dollar Judgment in this case.
Partner Jeff C. Wright Wins Arbitration for National Retail Store Client in Nonsubscriber Lawsuit
On August 2, 2017, Partner Jeff C. Wright obtained a successful defense verdict in a case that went to binding, Final Arbitration in Harris County, Texas. The Claimant filed suit against her employer (a national retail store), alleging that she suffered a knee injury as a result of negligence on the part of her employer. Claimant underwent one knee surgery and alleged she was in need of a total knee replacement surgery. Originally, the defense of this case was handled by a different law firm and different defense counsel. With just less than 60 days prior to the scheduled date of the Final Arbitration Hearing, the national retail store contacted Jeff Wright at Fee, Smith, Sharp & Vitullo, LLP, asking if he would agree to take over the defense of the case and handle the Arbitration Hearing. Despite the short notice, Mr. Wright and our firm gladly stepped in to defend the Client. At the Arbitration Hearing, Claimant asserted various negligence claims (unsafe workplace, unsafe equipment, failure to train, failure to warn, etc.) and sought an award of $350,000 in damages. After the Arbitration Hearing, both parties submitted post-hearing briefing. In the end, the Arbitrator found in favor of our Client and ordered that Claimant take nothing by her lawsuit.
July 14, 2017
On July 14, 2017, after 5 days of trial in the US District Court for the Eastern District of Texas in Beaumont, Texas, a 9-member jury returned a unanimous defense verdict in favor of FSSV’s clients Buckley Transport, Inc. and its driver Cravin Brock. The case arose from an accident that occurred on February 29, 2016 at approximately 11:00 pm in Orange, Texas. Mr. Brock’s 18-wheeler experienced an unexpected and catastrophic engine failure with limited warning while traveling on I-10. After the engine failure, Mr. Brock was able to exit the freeway while coasting when his 18-wheeler came to a stop with it partially blocking the right hand lane of the two lane feeder road. Plaintiff, driving a Ford SUV with his wife as his passenger, struck the rear of the disabled 18-wheeler without braking or taking evasive action. Plaintiff was seriously injured and his wife died approximately one month later from her injuries. Plaintiff argued that Mr. Brock was negligent and negligent per se alleging that the 18-wheeler lights and flashers were not operational at the time of impact due to other mechanical problems, that he delayed in setting out warning triangles, and that he should have exited the highway immediately upon the first warning of engine trouble by pulling into a parking lot so as to avoid becoming disabled in a travel lane. Defendants’ evidence included testimony from a witness and the investigating officer that the trailer lights and hazard flashers were visible from a distance as they approached the scene after the accident and that the lights and flashers remained on throughout the investigation. Plaintiff further claimed that Buckley Transport negligently hired, trained, supervised and retained Mr. Brock, and the actions of both Defendants constituted gross negligence. Ms. Fox argued, and the jury agreed, that Plaintiff was the sole cause of the accident.
May 15, 2017
Senior Associates Jason A. Burris and Margaret A. “Meg” Johnson
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations.
May 5, 2017
Congratulations to FSSV Senior Partner Tom Fee, Partner William Toles, Associates Jas Braich and Kelly Walker for being selected by D Magazine as 2017 Best Lawyers in Dallas.
April 19, 2017
Kinsley v. Cartwright’s Ranch House, et al.; in the Fort Worth Court of Appeals
On April 6, 2017, Senior Counsel Craig H. Myers and Senior Counsel Timothy R. George obtained a decision from the Fort Worth Court of Appeals upholding a complete defense verdict following a jury trial involving FSSV clients -- a Denton restaurant and its owner -- in a premises liability case involving a customer’s fall from a curb in front of the restaurant and resulting death. FSSV successfully argued that there was no evidence that the restaurant’s placement of outside furniture caused a customer using a walker to fall from the curb and, in any event, the restaurant did not control the public curb upon which the accident occurred. FSSV Partners Thomas W. Fee and William M. Toles conducted the successful jury trial, and obtained the judgment upheld on appeal.
Garren, et al. v. Cunningham and Greyhound Lines, Inc.; in the Dallas Court of Appeals
On April 13, 2017, FSSV Partner Scott W. Self and Senior Counsel Timothy R. George obtained a decision from the Dallas Court of Appeals upholding a summary judgment granted in favor of FSSV’s clients -- a passenger bus company and its driver -- in a lawsuit in which a passenger attacked the driver, causing a crash and injuries to other passengers. FSSV successfully upheld the trial court’s summary judgment on appeal and prevailed on an argument that even a common carrier, with a heightened standard of care to protect passengers, does not owe a duty to protect against the criminal action of a third party when there is no evidence that the company or its driver had any reason to anticipate that criminal action.
Partner Howard J. Klatsky Prevails in Appeal of Defense of Personal Injury Suit Will v. Bambenek; No. 05-16-00222-CV, In the Court of Appeals Fifth District at Dallas
On April 19, 2017 the Court of Appeals Fifth District at Dallas issued a unanimous Memorandum Opinion affirming a Collin County District Court's granting of a Motion for Summary Judgment rendered in favor of FSSV's client Cathy Bambenek, a (now retired) chemistry teacher who taught in the Plano Independent School District. The case arose out of an accident that occurred during a laboratory experiment, resulting in personal injuries. The Will family sought to hold Bambenek personally liable. The trial court granted summary judgment in favor of Bambenek, who had asserted defenses under the Texas Education Code (immunity for professional employees of a school district where the act is incident to or within the scope of the duties of the employee's position of employment and involves the exercise of discretion on the part of the employee).The Will family appealed, contending (among other things) that Bambenek was not performing a discretionary task when the accident occurred. The appellate court disagreed with the Will family (concluding that the evidence that Bambenek had submitted in support of her Motion demonstrated that she personally deliberated about the manner or means of the safety protocols and invoked her own judgment), affirmed the trial court's decision to grant summary judgment based upon Bambenek's immunity, and entered Judgment in favor of FSSV's client. Partner Howard J. Klatsky represented Bambenek at the trial court level and in the appeal, and was assisted in the appeal by Senior Counsel Timothy R. George.
April 16, 2017
On April 6, 2017, FSSV partner Scott W. Self and associate Randall W. Miller obtained a defense verdict at trial in Dallas County, Texas, on behalf of FSSV’s clients—a non-profit soccer organization, its officers, and directors—in a lawsuit in which the plaintiff injured his knee while playing in an adult recreational soccer game on a field owned and operated by the association. The plaintiffs alleged premises liability and gross negligence against the non-profit organization, as well as breach of fiduciary duty and fraud against its officers and directors. FSSV successfully argued for dismissal of the breach of fiduciary duty and fraud claims before the case went to the jury, which ultimately returned a unanimous defense verdict on the premises liability and gross negligence claims.
January 4, 2017
On January 4, 2017, Partner Jeff C. Wright and the Fee, Smith, Sharp & Vitullo firm successfully defended their client, a trucking company, in a lawsuit filed by a Plaintiff who alleged that she suffered an on-the-job neck injury as a result of her one-vehicle roll-over accident. Plaintiff alleged that three retread tires on her tractor trailer suddenly blew out as she was in the process of turning at an intersection, causing her tractor trailer to overturn on its side. Plaintiff asserted various negligence claims against her employer (use of retread tires, failure to train, failure to warn, etc.) and, at the final Arbitration, sought more than $1.8 million in damages for her alleged injuries and damages. The case was tried for 2 days in front of an Arbitrator in Dallas. After the Arbitration, both parties submitted post-hearing briefing. In the end, the Arbitrator found that the scientific evidence was overwhelming that Plaintiff simply encountered a situation in which her tractor and trailer flipped on its side due to her speed, rather than anything that her employer did or did not do. The Arbitrator found no negligence on the Employer and determined that Plaintiff was the sole proximate cause.
Septermber 24, 2016
On September 21, 2016, after a trial of nearly two weeks, a jury of twelve (12) Tarrant County citizens rendered a unanimous defense verdict in favor of FSSV client Pantego Camp Thurman, Inc., a non-profit Christian camp located in Pantego, Texas. The case arose from a fatality incident in which the 30-year-old adult male decedent entered Camp Thurman’s premises after hours, climbed onto one of Camp Thurman’s ropes course elements, and fell to his death. The plaintiffs—mothers of the decedent’s two minor children—argued that Camp Thurman failed to construct adequate fencing, failed to post adequate warning signs, and failed to prevent the decedent from accessing the ropes course element in an unauthorized and unsupervised manner. On behalf of Camp Thurman, FSSV partner Scott W. Self showed that the decedent was a trespasser and was legally intoxicated when he entered Camp Thurman’s premises and successfully argued that Camp Thurman was not negligent.
Septermber 4, 2016
FSSV is pleased to announce the opening of its Houston, Texas office. As Texas Trial Attorneys, we are focused on providing not only legal expertise and sound judgment, but also timeliness and responsiveness to our clients’ needs.
August 18, 2016
On August 18, 2016, after four days of trial, a Van Zandt County (Texas) jury rendered a unanimous (12-0) defense verdict in favor of FSSV client Triple T Amusements in an accident involving two passengers on an amusement ride. The passengers were 14 and 18 years of age at the time of the accident on April 4, 2012. Both plaintiffs argued that they were injured in the accident and continued to have medical problems related to the accident. The 14 year-old, who is now 18 years of age, argued that she sustained a thoracic compression fracture at T10-T11 and continued to suffer pain from the injury. She also claimed to suffer from post-concussion syndrome. The 18 year-old, who is now 21 years of age, argued that she continued to suffer from post-concussion syndrome, neck and low back pain and post-traumatic headaches. At mediation, plaintiff counsel demanded $150,000 for the now 21 year-old plaintiff and $100,000 for the now 18 year-old plaintiff.
June 8, 2016
On June 8, 2016, a Potter County (Texas) jury rendered an 11-1 no negligence verdict in favor of FSSV client Dee King Trucking and its driver, Bobby Joe Raymond, in a wrongful death action brought by the five children of the decedent (ranging in age at the time of the accident from 14 months to 14 years old). Defendants argued that the decedent, Valeria Kabagwira, failed to yield right of way at a stop sign, thereby intruding the path of Mr. Raymond's tractor. Plaintiffs argued that the defendant driver's speed, fatigue, and faulty evasive maneuver caused the accident, which resulted in the death of Valeria Kabagwira. Plaintiffs also argued that Defendant Raymond's logs were inaccurate and that he exceeded the maximum hours of service and maximum driving time allowed by the Federal Motor Carrier Safety Administration. Plaintiffs made independent claims against Dee King Trucking for negligent entrustment, inadequate training, and inadequate supervision, but those issues were not submitted to the jury. The case was tried by FSSV Partner, Scott Self and Senior Counsel, Meg Johnson.
May 31, 2016
Fee Smith Partner William Toles has been named a 2016 Best Lawyer in Dallas in the area of Tort: Personal Injury, Product and Medical Liability.
Mr. Toles is a trial lawyer with experience throughout the state of Texas in tort litigation ranging from simple negligence cases to more complex premises liability, DTPA, commercial and contractual dispute matters.
May 13, 2016
William Toles, a partner in the Dallas office of Fee, Smith, Sharp & Vitullo, was sworn in as a member of the Washington and Lee University Board
of Trustees on May 13, 2016, during its spring meeting. Washington and Lee is a small, private, liberal arts university located in Lexington, Va. It is
the ninth oldest institution of higher learning in the nation.
April 18, 2016
Fee Smith Partner Jennifer Lee, has been named a Fellow for the 2016 Leadership Council on Legal Diversity (LCLD) Fellows Program. LCLD is comprised of more than 250 corporate chief legal officers and law firm managing partners—the leadership of the profession—who have dedicated themselves to creating a more open and truly diverse legal profession.
LCLD's Fellows are nominated by their company or law firm’s leadership because they are high-potential attorneys with a history of strong performance and leadership. The LCLD Fellows Program is an ambitious, highly structured training program designed to build relationships and leadership skills. The “Fellow” year focuses on relationship-building, in-person training, peer-group projects and extensive contact with LCLD’s leadership. Partner William Toles was previously an LCLD Fellow in 2014.
Ms. Lee is a trial lawyer who defends wrongful death, trucking and construction fatality matters, as well as nonsubscriber, construction liability and defect litigation. Her practice also includes premises liability matters and employee benefit plan interpretation (ERISA).
March 28, 2016
During the week of March 28, 2016, Attorneys Bryan Reese and Frank Catalano successfully defended their client, Lopez Masonry in a multi-million dollar subrogation lawsuit filed by State Farm Insurance Company in Tarrant County District Court arising from a fire which rendered a residence in Southlake, Texas a total loss. State Farm was attempting to recover $1,600.000.00 in insurance proceeds it had paid to its insured homeowner for the loss. Specifically, State Farm alleged that Lopez Masonry had left a large gap near the opening of the outdoor fireplace during the original construction resulting in a false chimney that caused the fire and the $1.6M in damages.
Despite these allegations by State Farm, the jury found 50% responsibility on the general contractor Swift Custom Homes, Inc. as well as 40% on the City of Southlake due to the multiple building code inspections that occurred at the property during construction. Lopez Masonry was found only 10% responsible. In addition, Lopez received a settlement credit from a codefendant who had settled earlier in the litigation and prior to trial.
March 25, 2016
Jason A. Burris, Margaret A. “Meg” Johnson, and Frank Catalano have been selected to the 2016 Texas Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.
Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a
statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
March 18, 2016
March 17, 2016
On March 17, 2016, Mike Sharp, Scott Self, and Jason Burris won summary judgment in Dallas County District Court for their client, a national bus company.
Plaintiffs alleged they were injured when a passenger assaulted the driver of a motor coach causing the vehicle to drive into the median. The Plaintiffs claimed that the bus company should have known that a criminal act was imminent as the passenger was listening to his music loudly and arguing with his girlfriend several minutes prior to the assault. Plaintiffs settlement demand prior to the motion for summary judgment hearing was in excess of 4 million dollars.
The court found that the national bus company did not owe a legal duty to protect Plaintiffs from the criminal acts of a third party because they did not have actual and direct knowledge of an imminent occurrence of the criminal act and disposed of all of Plaintiffs’ claims.
March 2, 2016
On March 2, 2016, FSSV Partners Bryan Reese and Jennifer Lee successfully defended their clients, Allegiance Health Management, Inc., New Directions B&S, LLC, and Allegiance Specialty Hospital of Kilgore, in front of a jury from the Federal Eastern District of Texas, Tyler Division. It was alleged that Plaintiffs, which were comprised of an adult and two minors, were injured when involved in an accident with our clients' medical transport bus. Plaintiffs requested damages in excess of $2,000,000.00 for medical bills for the adult Plaintiff’s back surgery and inability to return to work and one minor Plaintiff’s fractured ankle. In response, the jury awarded the adult Plaintiff $21,384.91, the minor with the broken ankle $4,429.23 and the other minor Plaintiff $1,684.52. This totaled a judgment in the amount of $27,498.66 despite Plaintiffs’ sizeable medical bills and damage request.
February 10, 2016
On February 10, 2016, a Denton County (Texas) jury rendered a no negligence verdict on behalf of Defendant and premise owner, Cartwright's Ranch House Restaurant. Plaintiffs alleged Cartwright's outside furniture, as placed in front of the restaurant, created a dangerous condition. One of the Plaintiffs, a disabled veteran, utilized a walker at the time of the accident. The Plaintiffs claimed Defendant violated the Texas Human Resources Code and Texas Accessibility Standards Act causing one Plaintiff to fall and break his neck resulting in his death after being on life support for 4 days.
January 1, 2015
Fee, Smith, Sharp & Vitullo LLP is proud to announce its inclusion in the listing of top law firms in the United States, Martindale-Hubbell®—the authoritative source for information about U.S. lawyers since 1868—researched their comprehensive database of 1 million lawyers and firms in over 160 countries and identifed U.S. law firms of 10 or more attorneys, where at least one out of three of their lawyers achieved the AV Preeminent® Peer Review Rating. This rating indicates the rated lawyer has been deemed by his or her peers to have demonstrated the highest level of ethical standards and legal ability.
Martindale-Hubbell® Peer Review Ratings™ are driven by the confidential opinions of lawyers and members of the judiciary who provide reviews of lawyers about whom they have professional knowledge.
The firms featured in this section vary in practice, but all share the distinction of being staffed with attorneys of the highest caliber.
October 21, 2014
Fee, Smith, Sharp & Vitullo LLP (FSSV) is on the short list of whom to call in Texas following a major incident. The statewide practice represents companies and individuals facing high-profile disputes in a broad range of matters, including construction accidents and defects, personal injury torts involving catastrophic injury and death, major commercial transportation accidents and product
and premise liability.
JULY 7, 2014
Mr. Bryan joined the firm after four years in the U.S. Air Force J.A.G. where he gained valuable trial experience
in over 30 cases. That experience and familiarity with the Rules of the Evidence make Justin a true asset for any
company or individual facing potential tort liability.
Read Bio >
JUNE 19, 2014
Mr. Knecht earned his law degree from South Texas College of Law in 2002. While attending South Texas,
Mr. Knecht was involved in many trial advocacy programs including the Board of Advocates.
Where the Rubber Meets the Road: Unique Litigation Strategies in Highway Sector and Motor Carrier Cases, Co-Authored by Partners, William M. Toles and Rebecca E. Bell.
Clint Cox, IV with Fee Smith Sharp & Vitullo, will speak at TXANS 2014 Nonsubscriber Conference & Exhibition, planned for April 30- May 1, 2014 in Austin, Texas. TXANS Annual Nonsubscriber Conference & Exhibition is the longest-running educational event dedicated to Texas nonsubscriber programs -welfare benefit plans that offer occupational injury benefits to the employees of Texas employers that operate outside the state's traditional workers' compensation system.
Fee, Smith, Sharp & Vitullo LLP is proud to announce that senior partner Tom Fee has recently been voted one of D Magazine's 2013 Best Lawyers in Dallas in the areas of Tort and Products Liability law. Tom represents companies and individuals in high-exposure and high-profile disputes in federal and state courts throughout Texas and the U.S. He has been lead trial counsel for clients in personal injury torts involving catastrophic injury or death, professional liability, and commercial business litigation disputes. Mr. Fee is board certified in personal injury trial law by the Texas Board of Legal Specialization, is recognized by Martindale-Hubbell as an AV Preeminent®-rated attorney, and was selected as a Super Lawyer from 2005 through 2012. He is also a member of the American Board of Trial Advocates.
FSSV congratulates Partners Mike Sharp and Clint Cox, of the firm's Dallas office, for winning a trucking defense verdict in Dallas' 44th Civil District Court. Plaintiffs Robert and Rebecca Fuller sought over $9MM in past/future damages against Defendants Genuine Parts Company (NAPA Auto Parts) and their driver Carmen Mooreman. Plaintiffs argued the Defendants were grossly negligent in the operation of an 18-wheeler that struck Plaintiff Rebecca Fuller in February 2008, causing catastrophic brain and bodily injury. Plaintiffs presented testimony as to liability and damages, through five experts, seeking a life care plan in excess of $2.4MM. With only one dissenting juror, the verdict placed 100% of the negligence on Plaintiff Rebecca Fuller, thereby denying the Plaintiffs any recovery.
Recent Appellate Decision on the Stowers Duty Protects the Insurer
Fee, Smith, Sharp & Vitullo, L.L.P. congratulates partners Rebecca Bell and Tom Fee for the result in McDonald v. Home State County Mutual, Paragon, et. al., an appeal involving an alleged Stowers demand. In the underlying suit, McDonald's attorney sent Paragon a settlement demand letter stating that full and final settlement of McDonald's claims could be made in exchange for payment to McDonald of the total amount of liability insurance available, and gave a deadline of seven working days for receipt of payment in counsel's office. The demand letter made no reference to a recorded hospital lien, and by its terms stated that any negotiation other than the scope of the correspondence would be considered a rejection of the offer. Although Paragon attempted to reach counsel to discuss the demand, the call was not returned. Suit was filed against the insured and resulted in over $1.3 million in damages awarded. McDonald obtained an order turning over the insured's right to sue his insurers for failure to settle with McDonald, including any Stowers claim, and sued Paragon and Home State for bad faith.
Competing motions for summary judgment were filed by all parties. McDonald argued that the insurers did not act as a reasonably prudent insurer when faced with clear liability and damages well in excess of policy limits. Rebecca Bell argued on behalf of all of the insurers, asserting that the demand letter failed to trigger the Stowers duty or any statutory duty due to the short fuse of the demand letter, the absence of an independent duty by an insurer to verify the enforceability of a hospital lien, and reaffirming the need to explicitly address a hospital lien in a demand letter in order to trigger bad faith claims. The First District Court of Appeals affirmed the summary judgments in favor of the insurers.
Senior partner, Tom Fee, discusses commercial injury matters with John Criswell, during the Texas Business Update on KLIF 570 AM.
Seven Deadly Sins To Avoid In Collective Bargaining; an article prepared by Partner, Darrell G-M Noga and Associate, Robert M. Rosen.
Defense Verdict in Serious Brain Injury Case
In Murphree, et. al v. Site Concrete, et. al, the final live pleading of the lawsuit asserts that the Site Concrete Defendants, as the general contractor, was responsible for a duty to exercise ordinary care in the operation and maintenance to the construction zone (Highway 380 Widening Project) in question. Plaintiffs generally alleged the duties to provide for the safe passage of traffic, the safe ingress and egress of traffic, proper implementation of reasonable and appropriate traffic control devices, and timely completion of the project were violated by these Defendants. The pleadings asserted that at the time of the collision, Site Concrete breached these duties by failing to be in compliance with contract documents regarding the timing of phases relating to the underlying construction contract as well as compliance with the relevant traffic control plan. The scope of these allegations generally allege that the combined course of action and non-compliance led to the existence of an uncontrolled intersection at Highway 380 and County Road 1110 on August 17, 2007, with no barricades, no STOP signs, and what was alleged to be improper traffic control devices.
Plaintiffs also alleged that Betty Monroe breached her duty to exercise ordinary care in the operation of her vehicle on public roadways, including but not limited to the duty to keep proper lookout; the allegations against Monroe, however, were extremely brief. Plaintiffs' pleadings made no mention of her breach of duty in complying with traffic control warning signage, road closure signage, rate of speed, or high level of intoxication at the time of the collision. It was determined after the accident that Betty Monroe had a 0.36 blood alcohol content at the time of the blood draw. Despite these facts, the Plaintiffs' focus was instead upon Site Concrete as the prime contractor, and Austin Bridge & Road, L.P., one of the subcontractors that had worked on the Highway 380 project.
Plaintiffs' asserted that the Austin Bridge Defendants had a duty to exercise ordinary care with respect to the responsibilities retained and undertaken pursuant to its role as a sub-contractor for the project in question. Plaintiffs' asserted that under the terms of its contract with Defendant Site Concrete, Austin retained responsibility to ensure that traffic control devices in place complied with the traffic control plan during the performance of its work, and indeed continuing after completing its work. It is undisputed that Defendant Austin performed certain work at or near the intersection of County Road 1110 and U.S. Highway 380 prior to August 17, 2007. Plaintiffs therefore alleged that Austin held a continuing duty to ensure traffic control devices in place at the conclusion of its work complied with the traffic control plan. Plaintiffs generally allege that Austin breached a duty to the traveling public in not ensuring traffic control devices were in place that were reasonable, proper and in compliance with the traffic control plan. Plaintiffs further asserted that Austin was negligent in not ensuring the safety of the traveling public by placing or otherwise requiring a continuing traffic control plan after the conclusion of its work. To the extent necessary, Plaintiffs invoked the Doctrine of Voluntary Undertaking as set forth in the Restatement (Second) of Torts ¤ 323. Plaintiffs further alleged that Austin "contractually retained responsibility for ensuring that traffic control devices complied with the traffic control plan and/or the MUTCD." Plaintiffs further alleged that Defendant Site Concrete and Defendant Austin Bridge should be held jointly liable under the doctrine of joint enterprise.
The Texas Department of Transportation was originally added as a Responsible Third Party pursuant to Motions for Leave filed by both Site Concrete and Austin Bridge. Plaintiffs then filed suit directly against the governmental agency. However, after multiple dispositive motions filed by TxDOT, the Plaintiffs dismissed the claims against TxDOT with prejudice, and requested that the Court grant summary judgment as to the responsible third party claims asserted by the Defendants. The Court denied Plaintiffs' request.
Plaintiffs alleged that a collective result of the occurrence in question is that Jackie Murphree sustained severe, permanent and disabling injuries, inclusive of a severe brain injury that would result in extensive care for the remainder of her life. The final pleadings upon which the case went to trial included a specific pleading for approximately $66,000,000.00 from the fact-finder at the time of trial. According to the expert testimony prior to and at the time of trial, the life care plan alone totaled in excess of $12,000,000.00.
The defense of Austin Bridge & Road, L.P. was the cooperative effort of trial counsel Thomas Fee (Fee, Smith, Sharp & Vitullo, L.L.P.) and Ed Wright (Stradley & Wright), and appellate counsel, Rebecca Bell (Fee, Smith, Sharp & Vitullo, L.L.P.). After a two-week trial, the jury brought back a verdict in favor of the Plaintiff in an amount that totaled approximately $23,500,000.00. The jury determined that Defendant Monroe was 70% responsible for the accident. The jury also determined that Site Concrete and the Texas Department of Transportation each held 15% liability. The jury found in favor of Austin Bridge & Road, answering "NO" to the initial liability question as to its alleged negligence.
For media coverage:
The attorneys you chose to represent me did an excellent job. I don't know if this was a hard case or an easy case since this was the only time I have been involved in this type of action. Easy or hard Mr. Fee and Mr. Garner met the challenge with what appeared to be very little effort.
FSSV wish to congratulate Brian D. Garner, Rebecca Bell and Scott W. Self of their selection as Texas Rising Stars by Texas Monthly Magazine. Rising Stars names the state's top up-and-coming attorneys. Rising Stars is published in 48 states and reaches more than 10 million readers annually.
Tom Fee has been selected in Texas Super Lawyers magazine from 2005-2009
FSSV wish to congratulate Thomas W. Fee and Steve Springer of their selection as Texas Super Lawyers by Texas Monthly Magazine. Super Lawyers identifies the top 5 percent of attorneys in each state, as chosen by their peers and through the independent research of Law & Politics. Tom Fee is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization.
Head of the Class - A Letter of Appreciation
It was a pleasure to have you come and share about the judicial system and your profession with my class. It was obvious that you care a great deal for children based on your demeanor with the students. My students were able to verbalize lots of the things that they had learned about the legal system and the field of law from your visit. It is my hope that your visit helped to spark a fire in my students to dream big and to work towards their goals.
Thanks for caring about the students in DallasISD and for putting that caring concern into action.
6th Grade Social Studies
E.H.Cary Middle School
FSSV wish to congratulate Clinton V. Cox, IV, Scott W. Self, Brian D. Garner and Rebecca Bell of their selection as Texas Rising Stars by Texas Monthly Magazine. Rising Stars names the state's top up-and-coming attorneys. Rising Stars is published in 48 states and reaches more than 10 million readers annually.
Super Lawyers and Rising Stars
FSSV wish to congratulate Thomas W. Fee and Michael P. Sharp of their selection as Texas Super Lawyers by Texas Monthly Magazine And Scott W. Self, Brian D. Garner and Clinton V. Cox, IV of their selection as Texas Rising Stars by Texas Monthly Magazine Super Lawyers identifies the top 5 percent of attorneys in each state, as chosen by their peers and through the independent research of Law & Politics. Rising Stars names the state's top up-and-coming attorneys. Super Lawyers is published in 48 states and reaches more than 10 million readers annually.
Supporting our Troops
"It was learned through a distant contact with one of the partners that American troops in Iraq were in desperate need of laptop computers in order to communicate with loved ones back in the US. In the Spring of 2003, FSSV purchased two new laptops and shipped them over to Iraq along with a box full of Crawfish Boil t-shirts which can be seen being worn by one of the troops. A very thoughtful thank you note was received several months later."
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