Supreme Court of Texas Blog: Legal Issues Before the Texas Supreme Court
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Category: 'News and Links'

State of the Texas Judiciary 2015

February 20th, 2015 · Comments Off on State of the Texas Judiciary 2015

On Wednesday, Chief Justice Hecht delivered his first “State of the Judiciary” address to the Texas Legislature. The State Bar has a page on storify collecting some photos and tweets.

I wasn’t able to live tweet this year, or even to watch live. But I’ve had a chance to watch the video and wanted to pass along the highlights.

Statutory interpretation

The speech began with a subject of occasional tension between the branches: statutory interpretation. (The debate about the role of “text” versus “legislative intent” is a long one, and one that understandably looks different to the legislator whose unspoken intent may not be reflected well in the text.)

Read more…

Tags: News and Links

Texas Supreme Court issues temporary order stopping same-sex marriage licenses in Austin

February 19th, 2015 · Comments Off on Texas Supreme Court issues temporary order stopping same-sex marriage licenses in Austin

Some detail added on Thursday evening.

This week, two state judges in Travis County have issued orders indicating that Texas’s ban on same-sex marriage is unconstitutional, culminating in an order that permitted one license to be issued. (Here’s some collected coverage from KUT, our local NPR station.)

As that news story was blanketing local media this morning, the Texas attorney general was filing papers with the Texas Supreme Court requesting a stay of these Travis County rulings. The State’s motion was filed at 11:02am and asked the Court to issue immediate relief; I’ve uploaded a copy of the State’s motion. The Court issued a stay this afternoon, an order that the orders list document describes as granting the relief the AG has requested “in part.” Although the full text of the stay order is not (as I write this) yet on the Court’s website, you can get a sense of what “in part” means from the State’s request. The State requested the Court to stay both the temporary restraining order below and “all further state trial proceedings that seek to resolve the issues” of same-sex marriage or divorce. When we do see the order, I’d expect a formal stay of the order in this case but for the Court to stop short of actually “staying” other trial proceedings, some of which might not yet have been filed. [Update: Yes, here’s the stay order. It covers the specific restraining order below and does not mention other proceedings.]

There was speculation this afternoon about whether the marriage license already issued is valid. Chuck Lindell of the Statesman summarizes the AG’s press release about the stay, which suggests it is not:

My understanding, having now read the State’s motion for emergency relief, is that the AG has not yet requested a ruling on that question. (The State’s formal “petition,” which is not yet online, might request broader relief.)

As a legal matter, this subtlety about whether the license was “void”, or merely issued in error, has implications for whether it can be challenged after-the-fact, and perhaps by whom. That same question is deeply entangled with the AG’s attempt to intervene in a 2010 case in which a different Travis County judge issued a same-sex divorce decree. That set of appeals is still pending; the State argues in its filings today that the Court should freeze these new Travis County orders at least until that prior appeal is disposed.

Those merits decisions have been slowed down by, presumably, the Texas Supreme Court waiting on some relevant US Supreme Court cases to first be resolved. (The three petitions are among the oldest pending cases at the Court.) With the US Supreme Court now expected to issue its next ruling on same-sex marriage by the end of June, I would expect the Texas Supreme Court to wait to see the outcome before deciding this issue with finality. We may, or may not, from the Fifth Circuit in the meantime.

Resources

Because the State is challenging two distinct orders, there are two docket numbers in the Court.

  • IN RE STATE OF TEXAS, No. 15-0135 : On Tuesday, the State filed a petition asking the Court to stay the first, more general order from a Travis County judge declaring Texas’s ban on same-sex marriages to be facially unconstitutional. Today, the Supreme Court granted that requested stay in full.

  • IN RE STATE OF TEXAS, No. 15-0139 : The second petition was filed Thursday morning, about two hours after a Travis County court issued a restraining order demanding the county clerk issue one specific marriage license. The Texas Supreme Court granted the stay request only “in part.” You can read the State’s motion for emergency relief to get a sense of the issues. As a bonus, that motion attaches most of the trial court filings from earlier today. I’ll post the text of the stay order when available.

Tags: News and Links

Admissibility of seat-belt evidence in accident cases; Insurance coverage for the BP oil spill [Feb. 13, 2015]

February 13th, 2015 · Comments Off on Admissibility of seat-belt evidence in accident cases; Insurance coverage for the BP oil spill [Feb. 13, 2015]

With today’s orders list, the Texas Supreme Court issued opinions in two cases. It did not choose any new cases for review.

Opinions

Evidence about seat-belt use is now admissible in auto accident cases

In 1974, the Court ruled that evidence about whether a car’s occupant was wearing a seat belt was not admissible in an auto-accident case. Carnation Co. v. Wong, 516 S.W.2d 116 (Tex. 1974). Today, the Court overrules that decision.

It explained that the legal background motivating that rule had changed. First, Texas no longer has a contributory-negligence system, under which a plaintiff could be absolutely barred from recovery if they were even the slightest degree negligent. It now has a system of comparative negligence, with a plaintiff’s recovery merely reduced by the percentage of their own fault — unless that fault exceed 50%.1

Second, the Court noted that mandatory seat-belt laws began, and became more strict, after its 1974 ruling. Given that change, the Court referred to its prior holding as “a vestige of a bygone legal system and an oddity in light of modern societal norms.”

The Court rejected the argument that intervening statutes had, implicitly through silence, approved the blanket rule against the admission of seatbelt evidence. In 1985, while approving Texas’s first mandatory-seatbelt law, the Legislature had passed a prohibition on the admission of evidence about seatbelt use that was even broader than the Court’s. But in 2003, the Legislature repealed that provision while making other changes. The Court saw this repeal — without adding other language about the seat-belt question — as the Legislature choosing for its part to be silent. Thus, the Court rejected the argument that the Legislature had weighed in either way.

The Court holds that normal rules of evidence should apply, leaving the details to be sorted out in the usual way:

Today’s holding opens the door to a category of evidence that has never been part of our negligence cases, but we need not lay down a treatise on how and when such evidence should be admitted. Seat-belt evidence has been unique only in that it has been categorically prohibited in negligence cases. With that prohibition lifted, our rules of evidence include everything necessary to handle the admissibility of seat-belt evidence. As with any evidence, seat-belt evidence is admissible only if it is relevant. … The defendant can establish the relevance of seat-belt nonuse only with evidence that nonuse caused or contributed to cause the plaintiff’s injuries. And the trial court should first consider this evidence, for the purpose of making its relevance determination, outside the presence of the jury. … Expert testimony will often be required to establish relevance, but we decline to say it will be required in all cases. And, of course, like any other evidence, even relevant seat-belt evidence is subject to objection and exclusion under Rule 403.

The Court also considered how this should be handled for children who are not wearing seat belts, concluding that it can be proper for a jury to consider both whether an adult in the car bears some responsibility for that injury, as well as whether the child was acting as would an “ordinarily prudent child of [the same] age, intelligence, experience and capacity.”

And the Court addressed whether the jury should be asked who caused the accident (what the Court calls “occurrence-causing conduct) and then asked separately who caused each person’s injury (“injury-causing conduct”). The Court said no, that both kinds of fault should be folded into a single apportionment question. “There is nothing about injury-causing conduct that renders it incompatible with being considered alongside occurrence-causing conduct in one responsibility apportionment for the harm suffered by the plaintiff.”


  1. The facts involve a collision in which multiple passengers were ejected from a car, including children, and there is conflicting evidence about which adults or children were wearing seatbelts. Even without hearing evidence of seat-belt use, the jury assessed fault for the accident as being 51% to the trucking company and 49% to the family-car driver. Even with the reduction, the family’s award here was $2.3 million. 

Previously:
BP does not have insurance coverage as an "additional insured" under the policy purchased by Transocean

In 2010, a drilling rig owned by Transocean and developed by BP exploded in the Gulf of Mexico, leading to months of subsurface oil leakage, damage to coastal communities and industries, and other serious claims. In the parties’ drilling contract, Transocean was to be responsible for above-surface pollution risks while BP was to be responsible for subsurface pollution risks. Another provision of the contract required Transocean to provide "additional insured" protection to BP.

BP sued over the scope of this "additional insured" coverage, arguing that Transocean’s insurers must cover BP’s losses, regardless whether the specific cause was above or below the surface.

The Fifth Circuit originally ruled in favor of BP, concluding that the insurance policy itself did not limit the scope of coverage afforded to BP and that, under EVANSTON INSURANCE COMPANY v. ATOFINA PETROCHEMICALS, INC., No. 03-0647, it should not look beyond the text of that document to find a limitation to coverage. On rehearing, however, the Fifth Circuit withdrew its opinion and chose to certify this question to the Texas Supreme Court to authoritatively address two questions under Texas law:

  1. Does ATOFINA compel a finding that BP is covered for these damages?

  2. Does the doctrine of contra proferentem (that is, construing a contract against the person who drafted it) apply even in a sophisticated commercial context?

The Texas Supreme Court reached the opposite result, basing its decision on a less restrictive reading of ATOFINA, one that is compatible with the idea that an insurance policy can effectively “incorporate” another document needed to understand its scope:

Texas law has long allowed insurance policies to incorporate other documents by reference, and policy language dictates the extent to which another document is so incorporated. The policies here provide additional-insured coverage automatically where required and as obligated by written contract in which an insured has agreed to assume the tort liability of another party. Because BP is not named as an insured in the Transocean policies or any certificates of insurance, the insurance policies direct us to the additional-insured provision in the Drilling Contract to determine the existence and scope of coverage. Applying the only reasonable construction of that provision, we conclude that, as it pertains to the damages at issue, BP is an additional insured under the Transocean policies only to the extent of the liability Transocean assumed for above-surface pollution.

Having concluded that BP is covered by Transocean’s policies only to the extent that the drilling contract required, the Court answered the first question no, that there is no coverage.

The Court did not reach the second question about the contra preferentum doctrine because that rule applies only to ambiguous text, and it saw no ambiguity here.

Tags: News and Links · Order Lists

Four opinions, no grants [Feb. 6, 2015]

February 6th, 2015 · Comments Off on Four opinions, no grants [Feb. 6, 2015]

With today’s orders list, the Court issued signed opinions in two cases, issued two per curiams, and did not grant any new cases for review.

Lack of consent is part of the definition of trespass, not an affirmative defense

A farming company (FPL) got into a dispute with an environmental-wastewater company (EPS) that was injecting wastewater into the deep subsurface where it, allegedly, ended up beneath FPL's property. The farming company sued the enviornmental-wastewater company for trespass, that trespass taking place in the deep subsurface water table beneath its land.

If that scenario sounds familiar, it may be because this case is making its second visit to the Texas Supreme Court. In 2011

This case is making its second visit to the Supreme Court. The first time, the court of appeals held that the farming company could not sue for trespass because the State regulator had issued a permit. The Texas Supreme Court reversed, holding that the permit was not a bar to civil liability. FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C., No. 09-1010

On remand, the court of appeals ruled that the farming company should get a new trial. Part of its reasoning was that the jury charge was defective because it required the plaintiff farming company to prove a lack of consent to recover for trespass. In the court of appeals’s holding, that was an affirmative defense on which the defendant should have had the burden to establish the presence of consent.

With this opinion, the Texas Supreme Court disagreed. It surveyed a line of its own cases, going back to the days of the Republic, which described consent as part of the definition of trespass itself. Responding to FPL’s citation to some courts of appeals that used the term “affirmative defense” to describe the question of consent, the Court suggested that may have been discussing just the general concept that a defendant who did prove consent would defeat the claim, no matter whose burden of proof it actually way. As such, those courts may have “perhaps hastily used the term ‘affirmative defense’ to describe this proposition.” (The Court also notes that “[t]here is no pattern jury charge for a trespass to real property cause of action in Texas.” One suspects that might change.)

Having held that a plaintiff in a trespass claim does bear the burden to prove the lack of consent, the Court concluded that the jury charge here was not erroneous. Because this part of the Court’s decision was sufficient for the defendant to prevail, and because the Court was rendering judgment rather than sending the case back for a new trial, the Court saw no need in this case to reach the broader question of whether Texas law imposes a duty on a landowner to avoid causing this kind of “deep subsurface wastewater migration” beneath neighboring land.

Previously:
Making a UDJA claim to stave off foreclosure can subject you to paying the lender’s attorney’s fees

When Wells Fargo began a foreclosure process on a home-equity loan, this homeowner fought by back filing what the Court calls a “separate and original proceeding” (a phrase that will come into play in its reasoning). In that separate suit, the homeowners sought injunctive relief, asserted fraud claims, and sought relief under the UDJA. Wells Fargo, in response, sought its own declaration and asked for attorney’s fees under the UDJA.

The trial court ultimately ruled for Wells Fargo and awarded it attorney’s fees under the UDJA. The homeowners appealed, arguing that Wells Fargo did not assert a valid declaratory claim. The court of appeals agreed — but to strike down the fees, it had to go a step further. Either side can recover under the UDJA, so to reverse the award, the court of appeals also had to determine whether the homeowners had a valid UDJA claim. It concluded that neither side had a valid UDJA claim and, thus, that there was no basis for a fee award.

The Supreme Court reversed. On the procedural question, it ruled that the homeowners' challenge to the award was fatally incomplete. Because they had not challenged whether his own UDJA claim was valid, the court of appeals could not reach that question sua sponte. And, thus, the basis for the court of appeals’s ruling was invalid.

That led to a constitutional question: Can a lender recover attorney’s fees in this situation, consistent with Texas’s constitutional provisions about home-equity lending?

The Court held that the key was that this was a “separate and original proceeding.” Rather than defending the lender’s original suit (in which, the Court suggests, no fees would have been available), the homeowners filed this separate proceeding.

Previously:
Objecting to a trial court’s pretrial sanction order can preserve error against an eventual spoliation instruction

This is a negligent-spoliation case. After a contested hearing before trial, the district court ordered that a spoliation instruction would be given to the jury. When it came time to approve the jury charge, however, the defendant did not renew this objection. The court of appeals held that this waived any complaint about spoliation.

The Supreme Court disagreed. It held that the objections made before trial were clear enough, and clearly enough ruled upon, that the question of whether some spoliation question was proper had been adequately preserved. (It noted that there was no challenge here to the precise wording of the instruction, a challenge that might have required a different type of objection or ruling.)

Moving a police car to point its headlights into oncoming traffic is a “use” of property for which immunity is waived

The plaintiff contends that a car accident was caused by the headlights of a police car, which was at the time being moved and was facing oncoming traffic. The County invoked sovereign immunity. The question on appeal is whether this situation withs within the “use of property” exception in the Texas Tort Claims Act.

The Supreme Court held that it does fit the exception and, thus, that a waiver of sovereign immunity had been pleaded. The key fact turned out to be that, in this case, the police car was being operated (“relocat[ed]”) at the time of the accident.

The County argued that an accident caused by headlights alone could not fit within the waiver, citing a Houston case from 2007 in which that court found immunity against an accident claimed to have been caused by a parked police car with its emergency lights activated. Texas DPS v. Grisham, 232 S.W.3d 822 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The driver in that case claimed the accident was caused by the fact that they had to change lanes to comply with state law. That court of appeals, however, held that the police car in question was not in “use” merely by virtue of being parked with its emergency lights on.

In this case, the Supreme Court was expressly careful not to either approve or disapprove the holding of Grisham. (“Although we express no opinion as to the substance of the Grisham panel’s analysis, we decline to follow its reasoning here.”). That may be a question for another day.

To decide this case, the Supreme Court chose merely to distinguish Grisham, noting that the police car here was unquestioningly being operated at the time. This was not a parked car, it was a car in motion.

The Court also rejected the County’s argument that the accident was caused by the “illegal conduct” of the driver, an illegality based on the Transportation Code requirement to change lanes or reduce speed when approaching a parked emergency vehicle. This car, it noted, was not parked. And the ultimate effect of such a finding would, the Court noted, be merely to reduce proportionate responsibility; there is not a general bar to suit based on “illegal conduct.”

Tags: News and Links

Dallas is hosting the AJEI conference later this month

November 3rd, 2014 · Comments Off on Dallas is hosting the AJEI conference later this month

This year’s AJEI (Appellate Judges Education Institute) is being held in Dallas from November 13-16. If you’re in the area, you should see if part of the program works with your schedule. (If you’re already planning to attend, then please say hello if you see me wandering the halls).

The program lineup gives you a sense of the range of topics. This is a national event, and the centerpiece Saturday event is a two-hour program with Justice Scalia and Bryan Garner. The program also has some Texas Supreme Court flavor, including former Chief Justice Wallace Jefferson, current Chief Justice Nathan Hecht, former Justice Scott Brister, former Justice (now federal judge) Xavier Rodriguez, and former Chief Justice Wallace Jefferson (who is indeed speaking twice).

I’ll be moderating a breakout panel about electronic briefing on Friday morning, with Judge Stephen Higginson of the Fifth Circuit, Justice Virginia Linder of the Oregon Supreme Court, and Kevin Newsom of Bradley Arant Boult Cummings LLP.

Tags: News and Links

Four grants: disqualifying counsel; suing compounding pharmacies; government immunity × 2 [Oct. 24, 2014]

October 27th, 2014 · Comments Off on Four grants: disqualifying counsel; suing compounding pharmacies; government immunity × 2 [Oct. 24, 2014]

The Court had a two-day private conference before this weekly orders list, leading to orders in more than four dozen petitions. Four cases were ultimately chosen for oral argument in January. The remaining petitioners and relators were not so lucky. The Court has posted the list at a new location.

New Grants

These are the cases chosen for oral argument with this orders list:

Compounding pharmacies under the health-care-liability act

This is a claim against a compounding pharmacy based on an antioxidant supplement. The supplement was provided to a doctor's office, which then provided it to patients. The pharmacy argued that this was a health-care-liability claim and, accordingly, should be dismissed because no expert report was timely filed. The plaintiff argues that filling what the response calls a "bulk" order for these supplements is not filling a prescription and does not fit the statute.

Proof needed to raise a fact question on immunity

This is a suit against a government unit by the family of two girls who were killed by riptides near the Texas City Dike. There were signs posted elsewhere, but not where the accident took place. The City won a plea to the jurisdiction. The petition argues that there was a fact question on immunity, in part because the presence of warning signs at other nearby locations signaled awareness of the problem — or at least would permit a fact-finder to draw such an inference.

Disqualification of counsel for speaking to a former employee of the opposing party

IN RE RSR CORPORATION AND QUEMETCO METALS LIMITED, INC., No. 13-0499

legal ethics
Set to be argued on September 2, 2015

This mandamus petition concerns a trial court's order disqualifying counsel for gathering information from a high-ranking former employee of the opposing party who was involved both in the facts of the case and, as a financial manager, of overseeing paying the lawyers involved in the case.

The dispute involves whether the sort of disqualification that attaches when a law firm hires a legal-services professional like a paralegal from the other side should also attach when the firm gets information from an employee who was involved in a larger "litigation team." The petition urges that this would chill the informal fact-finding that trial counsel are permitted to do of former employees.

The Court granted rehearing of its previous denial of this mandamus petition and has set this case for oral argument.

Local government immunity from contract claims

LOWER COLORADO RIVER AUTHORITY v. CITY OF BOERNE, TEXAS, No. 14-0079

Set to be argued on January 15, 2015

The question is whether suit can be brought against the City for a contract alleged to have been entered in its proprietary (rather than governmental) capacity. The LCRA argues that this category of contract is not covered by immunity and that, if there were any doubt, it has also been waived by statute. The City argues that this proprietary-governmental distinction is inapplicable to contract claims and has also become unworkable in practice.

Tags: News and Links · Order Lists

My apologies for a bumpy road on the blog this week and next

October 19th, 2014 · Comments Off on My apologies for a bumpy road on the blog this week and next

This weekend, the Texas court system rolled out a new website design for the Texas Supreme Court. The old “supreme.courts.state.tx.us” domain has been retired, with the Court’s information now folded into the larger “txcourts.gov” domain that already handles the courts of appeals. The new page format is cleaner and more modern. It will be good for humans with taste.

The software scrapers that feed this blog are, unfortunately, still trained for the old website. I’ve shut down the scrapers for a short bit until I can re-train and re-test that software. That should freeze the data in place as things stand now.1

A compressed work schedule will prevent me from opening the code editor this week. My best estimate is that the blog will return to normal operation sometime the week of October 27th or the week of November 3rd.

Update 10:00am: Among the items that relocated were the Court’s previous slip opinions. Links that formerly went to a specific opinion now go to the Court’s main page.

I’ve written before about how entangled this blog is with my docket-tracking software. One side benefit is that, when there is some major change to the Court website, I can implement a change in one place and have the fix ripple through the blog archive. (This is not my first rodeo.)

Today’s payoff is this: I’ve written one quick fix for the opinion links in recent blog posts and some data tables. Those should now take you to my archived copy of the slip opinions, rather than to the Court website itself.2 This fix doesn’t make the scrapers any smarter. But it does make the blog a little more usable in the meantime.

  1. If you see some glitches that crept into the data pool before the shutdown — such as case names disappearing from old blog posts — those should naturally resolve themselves once the system is re-trained and the scrapers can reanalyze the pages. []
  2. This fix is not rolled out for posts older than mid-2012. The deeper archive can be fixed eventually, but not this morning. []

Tags: News and Links · SCOTXblog Announcements

A day for certified questions [Sep. 26, 2014]

September 26th, 2014 · Comments Off on A day for certified questions [Sep. 26, 2014]

It was a Fifth Circuit-focused day on the Texas Supreme Court orders list. The Court accepted one new certified question and scheduled another for oral argument.

Request denied for additional argument time

The other order of interest to practitioners might be the Court’s refusal to allow additional time for oral argument in KCM FINANCIAL LLC, R.J. SIKES, ROGER SIKES... v. BETTY LOU BRADSHAW, No. 13-0199 . The parties jointly made the request, suggesting that the facts suggested more than two “sides” and that each petitioner’s counsel thus needed 20 minutes of his own. (motion PDF). The Court decided, instead, to leave the parties with the original 20 minutes per side.

We don’t know how the Court would have reacted to a request for a more modest quantity of additional time, but this denial is a good point of reference the next time a client asks why you are not requesting more time for their case.

Issue Summaries

The Kroger case is set for argument on Dec. 9, 2014. As soon as the Court’s docket page notes that among the calendar entries, the case-status box below should also reflect it.

Does common language in a CGL policy have an ambiguity about coverage for product defects?

This suit grows from an unsatisfied customer of US Metals. Exxon bought and installed 350 pieces of drilling equipment (well neck flanges) but then later determined that they were the source of some problems, requiring the equipment — which had been installed by being welded in among other heavy equipment — to be removed at substantial cost, both in terms of raw expense and lost production during the time that the wells were not operating.

US Metals held a commercial general liability insurance policy that protected it against claims for "property damage" and "bodily injury."

But US Metals's insurer refused to cover the defense of this claim, citing certain exclusions related to damage caused by deficiencies related to "your [the insured's] product", as well as certain types of damage claims for "impaired property."

The Fifth Circuit has now asked the Texas Supreme Court to address, as a question of Texas law, whether two of the pivotal terms in the contract language defining this exclusion ("physical injury" and "replacement") are ambiguous and, if not, what they mean under Texas insurance law.

In making this request, the Fifth Circuit emphasized its view that this was a question of potentially broad importance:

The Texas Supreme Court’s interpretation of these terms will have far-reaching implications due to the commonality of these exclusions within CGL policies. As such, the answer to our certified questions will affect a large number of litigants. No Texas court or any other state or circuit court has determined whether the terms "physical injury" or "replacement" found within the "your property" and "impaired property" exclusions are ambiguous.

This legal point will now be briefed in the Texas Supreme Court, and the case will most likely be heard at oral argument next spring. You can read more details in the Fifth Circuit's opinion certifying the question.

What duty does an employer owe to an employee regarding a premises defect?

RANDY AUSTIN v. KROGER TEXAS, L.P., No. 14-0216

Set to be argued on December 9, 2014

This is a slip-and-fall case with a twist: The injured person was an employee who was cleaning up the spill:

Kroger's Safety Handbook provided that store management should "make certain that the Spill Magic Spill Response Stations [were] adequately supplied at all times" and available in numerous places throughout the store. Spill Magic allows an employee to clean a liquid spill with a broom and dustpan, and — according to Kroger's Safety Handbook — reduces the likelihood of a slip-and-fall by 25 percent. Because there was no Spill Magic on premises that day, Austin cleaned the spill with a dry mop instead. When Austin moved on to the men's restroom, he saw that the same substance covered about 80 percent of the floor. Austin placed "Wet Floor" signs inside and outside of the room, and proceeded to mop the spill for about thirty to thirty-five minutes. Austin took "baby steps" in and out of the restroom to change out the mop head numerous times, and successfully removed about thirty to forty percent of the liquid.

At about 10:30 a.m., while continuing to remedy the spill, Austin fell. He sustained a left femur fracture and severely dislocated his hip. He spent nine months in the hospital and underwent six surgeries, and his left leg is now two inches shorter than his right.

The employer did not subscribe to the Texas Workers Compensation system, so the claim falls through to common law.

The federal court decided that at least part of the case — a conventional negligence theory based on failure to provide the employee with "a necessary instrumentality" (the Spill Magic) — should be remanded to the federal district court for further proceedings. What it did not know was whether the premises liability theory was also viable — or whether that theory is precluded under Texas law.

So, it has certified the question:

Pursuant to Texas law, including §406.033(a)(1)–(3) of the Texas Labor Code, can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy? Put differently, does the employee’s awareness of the defect eliminate the employer’s duty to maintain a safe workplace?

The Fifth Circuit detailed its analysis of the underlying "tension" within these branches of Texas tort law in its opinion certifying the questions.

Tags: News and Links