5 Things Every Adjuster Should Know About Summary Judgments in Texas

1. Trial judges in Texas do not like to grant motions for summary judgment because they don't want to take away the plaintiff's day in court. And judges cannot be reversed on appeal for denying a motion for summary judgment, only for granting one.

2. Plaintiffs can defeat motions for summary judgment by convincing the trial judge that a question of fact exists for the jury to decide, and it never takes much to convince the judge.

3. A denial of a summary judgment is generally not appealable in Texas, but the granting of a summary judgment is appealable. (In other words, the trial judge can only be reversed by granting the summary judgment.)

4. Plaintiffs can easily defeat motions for summary judgment just by amending their pleadings.

5. Despite the difficulty of obtaining summary judgment in Texas, they are still worthwhile. Sometimes a defendant is entitled to judgment as a matter of law on an issue that can never be decided by the jury. Sometimes the plaintiff has absolutely no evidence to give to the jury to prove his or her case. Sometimes they can give a defendant an advantage in settlement negotiations. And sometimes they even get granted.

Preserving Evidence - Surveillance Videos

When slip and falls are caught on surveillance video, some premises owners recognize the need to preserve the surveillance video in the event of potential claims or lawsuits. But how much of the video should be preserved, and what are the consequences of failing to preserve enough of the video?

At least two recent cases in Texas have held that premises owners have duties to preserve more than just the 10 minute period up to and including the slip and fall incident. See, Brookshire Bros., Ltd. v. Aldridge, No. 12-08-00368-CV, 2010 WL 2982902 (Tex.App. -- Tyler 2010, no pet. h.) (for opinion, click here); Clark v. Randalls Food, No. 01-08-00732-CV, ___ S.W.3d ____, 2010 WL 670554 (Tex.App. -- Houston[1st Dist] 2010, pet. denied)(for opinion, click here). The amount of time between the creation of the dangerous condition (i.e., spill, puddle, fallen object) and the accident is important to whether a plaintiff can prove that the premises owner knew or should have known about the danger, which is an essential element of the premises liability claim. Therefore surveillance videos may capture relevant temporal evidence about the danger or whether the owner was on notice of the danger.

If a store owner decides to preserve a portion of the surveillance video related to a slip and fall, it would be prudent to preserve enough video to show what happened immediately before, during and after the incident. In Clark v. Randalls Food, for example, the court held that the store had a duty to preserve the footage starting at least one hour prior to the slip and fall incident, rather than just the 6 minute period up to and including the slip and fall. Under different circumstances, even one hour may not be sufficient; each set of circumstances requires an inquiry into how much of the evidence would be relevant to the claim. If a store preserves some but not enough of the video, should the claim turn into a lawsuit, the plaintiff may be able to convince the trial judge that he or she is entitled to some remedy based on spoliation, which is the intentional or negligent failure to preserve relevant evidence. One such remedy is to instruct the jury that they may presume that the missing evidence was not good for the store, a presumption that will be difficult to overcome without the missing evidence.

From a practical standpoint, therefore, if a premises owner is on notice that surveillance video needs to be preserved or voluntarily decides to preserve surveillance video related to any accident on his premises, the premises owner should be aware that the footage of the actual accident is likely not the only footage he needs to preserve.

Naturally-Accumulating Ice is NOT an Unreasonably Dangerous Condition

The Texas Supreme Court issued a new opinion today in a premises liability case involving a slip and fall on ice after a rare Texas snow storm. The Texas Supreme Court held that ice that accumulates naturally outside a business due to a winter storm does not pose an unreasonable risk of harm. The Court also noted that the business owner's application of a deicer does not create a substantially more dangerous condition than the ice in its natural state. Even if the owner uses a deicer to melt the ice, the owner does not create an unnatural condition if the ice refreezes after melting, because ice that melts and then refreezes is still considered natural accumulation. See, Scott and White Mem. Hosp. and Scott, Sherwood and Brindley Foundation v. Fair, No. 08-0970, (Tex.May 7, 2010).

Immigration Status not a factor in Negligent Entrustment/Hiring

In a negligent entrustment/negligent hiring case against a company whose driver causes an auto accident, the driver’s immigration status is not admissible at trial to prove these causes of action against the company. TXI Transp. Co. v. Hughes, No. 07-0541 (Tex.2010). The Texas Supreme Court has held:

We have said a claim for negligent hiring or entrustment cannot lie if “[t]he risk that caused the entrustment to be negligent did not cause the collision,” and if a “defendant’s negligence did no more than furnish a condition which made the injury possible.” Here, Rodriguez’s immigration status did not cause the collision, and was not relevant to the negligent entrustment or hiring claims—even if TXI’s failure to screen, and thus its failure to discover his inability to work in the United States, “furnished [the] condition” that made the accident possible. We agree with the court of appeals “that neither Rodriguez’s status as an illegal alien or his use of a fake Social Security number to obtain a commercial driver’s license created a foreseeable risk that Rodriguez would negligently drive the gravel truck.”

(citations omitted).

New Rules for Insurers - Child Support Liens

Insurers now have a duty to cooperate with the Texas Attorney General to identify insurance claimants with past-due child support arrearages. In 2009, the Texas Legislature amended Section 231.015 of the Texas Family Code to make it mandatory for insurers doing business in Texas to participate in an insurance intercept program. The Office of the Attorney General has adopted new rules in the Texas Administrative Code implementing these changes, and the new rules take effect March 16, 2010. Insurance companies doing business in Texas should coordinate with the Insurance Service Office (ISO) or the Child Support Lien Network (CSLN) to participate in the program, which entails performing either automated data matches or interactive look-ups of almost all personal injury claimants prior to payment of their claims.

GORDON CONVINCES PLAINTIFF TO DROP HIS CLIENT FROM $100 MILLION SUIT

Touchstone partner Wayne Gordon recently got a Bituminous insured, Pampa Machine and Supply, nonsuited from a $100 million case filed by Diamond Shamrock Refinery against several defendants concerning a refinery fire and explosion near Dumas, Texas.

The claims were for repair costs to the plant and business interruption/lost profits. The allegations included negligence in the refurbishing of a defective gate valve in a piping system which allegedly started the fire.

Wayne filed a motion for summary judgment on behalf of Pampa and then convinced the plaintiff to drop our client from the suit because the plaintiff had no evidence that Pampa had ever worked on the gate valve in question.

NO LIABILITY FOR A WATER FOUNTAIN FALL

A Dallas County jury has decided that a grocery store was not negligent after a Plaintiff slipped and fell on liquid near a fountain drink dispenser - even though the store manager testified that the liquid could have been there for at least 10 minutes.

Plaintiff Miranda Esperanza brought a negligence lawsuit against Brookshire Grocery Co. claiming, among other things, that the store breached its duty of care to her by failing to inspect the premises on a regular basis. Plaintiff claimed that she sustained neck, back, and knee injuries as a result of the fall, and sought to recover damages for physical pain and mental anguish, medical expenses, and physical impairment. However, following a two-day trial, the jury found that Brookshire was not negligent.

Brookshire, a self-insured corporation based in Tyler, Texas, was represented at trial by Barton Ridley and Heather Drake of Touchstone Bernays.