By
Chamberlain♦McHaney
CAPITOL
UPDATE:
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OPEN
Curtis Wilhelm kept bees for a hobby,
but decided to sell 14 of his hives to John Black, a commercial beekeeper.
Black brought two of his employees to Wilhelm’s house the next day to load
the 200 pound hives up and take them away. Black supplied his men with protective
gear, including protective suits, hats and gloves, but these crafty bees
nevertheless stung one of Black’s men and he died within minutes of an allergic
reaction.
The surviving widow, Dora Flores,
brought suit against both Wilhelm and Black alleging negligence, including
allegations that they had failed to warn of the dangers of Africanized bees,
failed to provide proper protective gear and failed to assure Flores had been
tested in advance
for bee allergies.
The jury found for the widow and awarded over $1.5 million. The
intermediate appellate court affirmed. Only Wilhelm, the bee seller,
appealed to the
In a very short opinion handed down last
week, the
This case represents a significant
change in the law. The court has now extended the “open and obvious”
defense not only to activities but also to plaintiffs other than independent
contractors. It can now be argued that sellers have no duty to warn buyers
of dangers that are obvious, and premises owners now have no duty to warn
invitees of dangerous premises conditions or activities that are obvious.
In other words, we can now leave the rake on the front sidewalk and get a
chuckle when the mailman steps on it.
This change means that a case can now be
decided by summary judgment instead of going to the jury if there is summary
judgment proof that the activity or condition is open and obvious. This
may seem a little counter intuitive to some folks because the defendant’s chances of
securing a summary judgment and avoiding a jury trial actually improve as the
activity or condition becomes more obviously dangerous. For example,
unguarded balconies, unfenced swimming pools and a friendly game of yard darts
with the neighbor’s three year old kid are all obviously dangerous, but now
arguably carry no liability exposure. The more open, the more obvious,
and the more openly and obviously dangerous, the better chance the defendant has
to prevail.
The Texas Supreme Court, as the state’s
top judicial policymaker, sees considerable social and economic benefit in
curbing lawsuits brought by plaintiffs who don’t protect themselves against the
obvious dangers in life…say like the spilling of hot coffee…because everyone
knows that hot coffee can burn you and make you cry. And all reasonably
sane people would agree that going to the golf course to watch Phil Mickelson
play the 18th hole at a major tournament is an obviously dangerous
activity that requires no warning. But down here in the trenches, we have
noticed over the years that it is somewhat more difficult to get a trial judge
to go along with an adult defendant who plays yard darts with the neighbor’s
kids or engages in some sort of other obviously dangerous activity. And
even to us…that’s open and obvious.
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FROM THE
TX/UP!
MAILBAG:
Dear
Ariel: Of
course not. How viciously demeaning. In
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MARK YOUR CALENDAR
Chamberlain♦McHaney is an A-V (highest
rated) Firm and listed in A.M. Best’s Directory of Recommended
Attorneys.
David E.
Chamberlain
Chamberlain♦McHaney