TEXAS
UPDATE!
By
Chamberlain♦McHaney
TEXAS
LAWYERS
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After such a long July 4th
weekend with the family, we are left wondering why there are no father-in-law
jokes.
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CHAMBERLAIN♦McHANEY
SCORES MAJOR VICTORY IN LANDMARK CASE BEFORE
TEXAS SUPREME
COURT: LAST
WEEK, in a case tried and appealed by CHAMBERLAIN♦McHANEY, the
Texas Supreme Court redefined the law
governing business and property owners’ liability for the allegedly negligent
and grossly negligent acts of independent contractors.
Our client, Fifth Club, Inc., operates
an Austin nightclub known as Club Rodeo.
Fifth Club hired David West, a state certified peace officer, as an
independent contractor to provide security at the club. Late one night,
Roberto Ramirez arrived at Club Rodeo after…let’s just say… several hours of
drinking elsewhere. Ramirez tried to enter the club but was denied
admission because he was intoxicated. The doorman signaled to West and another
security guard to escort Ramirez outside. West allegedly grabbed Ramirez and
slammed him into a concrete wall, knocking him unconscious and fracturing his
skull. The police arrived and arrested Ramirez, but the grand jury later
declined to indict him. Ramirez then sued the Club and West for several hundred
thousands of dollars in damages.
After a two week trial, the jury found Fifth Club vicariously liable for West’s
conduct and for negligence and gross negligence in its hiring of West. The
Austin Court of Appeals affirmed. We
appealed to the Texas Supreme Court.
The
Texas Supreme Court reversed and rendered a
take-nothing judgment in favor of Fifth Club. First, the Supremes found
there was no evidence to support the jury’s finding that the Club exercised any
control over West. Generally, a business or property owner has no duty to
ensure that an independent contractor performs his work in a safe
manner
unless some control
is retained over the manner in which the contractor performs the
work. Business and property owners can
direct when and where an independent contractor does the work and can make
recommendations which need not necessarily be followed, but the business or
property
owner may become
liable for the independent contractor’s tortious acts only if he controls the
details or methods of the independent contractor’s work to such an extent that
the contractor cannot perform the work as he chooses. The Supreme Court
found that there was no evidence the Club gave more than general directions to
West. Said the court: “Fifth Club’s action in directing West to
remove Ramirez from the premises did not rise to the level of directing how the
work was to be performed or directing the safety of the performance because West
retained the right to remove Ramirez by whatever methods he
chose.”
Ramirez also argued that even if the
Club did not retain control over West’s actions, it can still be held
vicariously liable because of a “personal character exception” to the general
rule against a business or property owners’ liability for the acts of independent
contractors. Because of the “personal character” of duties owed to the
public, businesses and property owners cannot, by contracting with an
independent security guard, avoid liability for the intentional torts of the
security guard. This exception has been previously recognized as
Texas law in at least two appellate
cases. See Dupree v Piggly Wiggly (Tex- App.-Corpus Christi 1976, writ
ref’d n.r.e.) (the Dupree court adopted the “personal character” exception so
that a company could not “subject its patrons to the hazards of an irresponsible
detective agency while itself escaping the risks of liability”)
and
Duran v
Furr’s Supermarkets, Inc (Tex. App.-El Paso 1996, writ
denied).
The Supreme Court rejected Ramirez’
argument, stating: “We decline to recognize a personal character exception
to the rule that an employer is generally insulated from liability for the
tortious acts of independent contractors.” The court also specifically
overruled the Dupree and Duran cases, thereby redefining
Texas law.
We argued that there was also
insufficient evidence to support the jury’s finding that the Club was negligent
and grossly negligent in hiring West. The Supreme Court agreed with us,
reasoning that: “While Ramirez presented evidence that Fifth Club
did not perform a background check or train West, West’s status as a certified
peace officer made him fit for this type of work and there was no conflicting
evidence that he was unfit for the security position prior to the incident in
question.” The Supreme Court held: “Because there is no evidence to
show that Fifth Club’s alleged negligence in hiring West could have caused
Ramirez’ injury, we reverse the court of appeals’ judgment against Fifth Club on
the negligence and malice issues and render a take-nothing judgment in favor of
Fifth Club.” Fifth Club, Inc v Ramirez
(Tex. 2006).
OUR TAKE: While the trial judge and the
lower appellate court tried to apply what they felt was existing
Texas law, it was clear to us all along that
they did not fully appreciate the modern trend in this area of the law. It
is now clear from this
Texas Supreme Court opinion that business and
property owners will generally not be liable for the tortious acts of
independent contractors unless they exert control over the very acts that cause
the injuries or damage. And by abolishing the personal character
exception to the rule, business and property owners can now contract for
security services with independent security guards without the risk of assuming
liability for their activities, even intentional torts. We think this case
will also make it much more difficult for plaintiffs to successfully assert a
negligent hiring theory against a business and property owner if the security
guard is a state certified peace officer.
David
Chamberlain, Tim Poteet and Amy Welborn handled
this case for the firm. CHAMBERLAIN♦McHANEY handles trials and appeals
throughout the State of Texas.
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We will review this case and other
important 2006 cases at our full day, fully accredited, 12th ANNUAL ULTIMATE CLAIMS HANDLING
SEMINAR on October 6,
2006 in
Dallas,
Texas. Star Jones missed last year’s
seminar and you know what happened to her. Don’t you be next.
Registration materials will be available in August.
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Chamberlain♦McHaney is an AV (Highest)
Rated Firm and is listed in A.M. Best’s Directory of Recommended
Attorneys.
David E.
Chamberlain
Chamberlain♦McHaney
Austin &
San
Antonio
512-474-9124