July 30, 2019
The State Bar of Texas annually sponsors the Advanced Personal Injury Law CLE in San Antonio, Dallas and Houston, Texas. Ms. Lee and Mr. Toles are speaking on the topic – When a Criminal Case Becomes a Civil Lawsuit.
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
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