TEXAS UPDATE!

 

By Chamberlain♦McHaney

 

TEXAS LAWYERS

 

 

We at Texas Update! have given our house cat a New Year’s resolution:  Never, ever, think outside the box.

 

Texas Appellate Court Rules No Immunity for Party Gone Bad:  Grace Estrada accepted an invitation to one of our local San Antonio fire stations to party with some on-duty and off-duty firefighters.  Grace, along with several other women, then proceeded to “consume alcohol and socialize” with the firemen.  Well, one thing led to another, and before you know it the firefighters allowed Grace to try on their firefighting gear, sit on the fire truck and slide down the station’s fire pole.  Grace successfully slid down the pole on her own several times.  She then decided “to descend the fire pole one last time.”  Trying a little something different, Grace climbed on Fireman De Los Santos back and shoulders and attempted a tandem descent.  Once Grace mounted him, the fireman suddenly let ‘er rip, slid down the pole and caused Grace to lose her grip on him and the pole.  She fell 12 feet to the ground sustaining injuries to go along with her hangover.  (Tx/Up Karma Note:  Something like this is bound to happen when you boldly go by the name of Grace).

 

Grace filed suit against the City of San Antonio seeking money damages under the Texas Tort Claims Act which provides a limited waiver of governmental immunity.  The City argued that the suit should be dismissed because the tort claims act did not provide a waiver for this type of accident.  The trial court agreed with Grace and the City appealed.  

 

The San Antonio appellate court first noted that the torts claim act provides a limited waiver of governmental immunity for personal injury and death caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.  Since Grace had alleged a viable negligent activity claim--that is, the fireman’s sudden descent without her attached--the City does not enjoy immunity.  Said the court:  “When, as here, the plaintiff alleges her injuries were caused by an ongoing activity of the defendant, rather than by a condition of the premises, the plaintiff has properly alleged a negligent activity claim.”  The appellate court sent the case back down for trial where, we guess, Grace will attempt to persuade a jury that she was not contributory negligent.  City of San Antonio v Estrada (Tex. App--San Antonio).

 

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As you may have heard on the Thursday night news, Boston officials are in an uproar over a display of illuminated cartoon characters that were placed around the city as advertisements for cable TV’s Cartoon Network.  According to police, the cartoon characters look like “bombs.”  The City vowed a crack down on the offenders and plans to extradite Sponge Bob Square Pants from the sea.  Disney and Looney Tunes were warned by authorities to stay out of the upcoming battle.

 

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Tx/Up! Capitol Update:   Just a few weeks ago our legislature convened for the 80^th time since Texas joined the union.  This year’s solons have vowed to outdo all 79 editions of their predecessors, calling them slackers when it comes to churning out sausage in public.  We think that will be one tall task.  After all, one previous Texas Legislature passed a resolution commending serial killer Richard Speck for his achievements in population control and in another session enacted a statute naming the chuck wagon as the official state vehicle. In between, they only narrowly failed to pass a statute which would have outlawed “sexy cheerleaders” once and for all.  That would have passed as well, but Dallas Cowboys Owner and General Manager Jerry Jones stepped in at the last moment and saved the day by unleashing a fresh wave of campaign contributions.  

 

New bills have already started to trickle in.  First, there is the bill that is sponsored by the lobby for arbitrators that allows parties to a commercial construction agreement to create by their contract a “Dispute Resolution Board.”  This “Dispute Resolution Board” goes to work even before the foundation is poured, roving the construction site searching for disputes to prevent and resolve, all the while drawing salaries which are to be billed to the owner as a “capital expense of the project.”  This statute mandates that these dispute resolvers get to work and bill as much as they want to, provides that they are to be equipped with secretaries and office space, and provides that most decisions they make are final and protects them with judicial immunity.  This is very, very nice work if you can get it, and it certainly doesn’t hurt to ask.    HB 497 by Madden.

 

Texans for Lawsuit Reform has announced it will have legislation introduced this session which will reform a “dysfunctional” Texas judicial system.  It advocates the merit selection of judges through appointment by the Governor, a reduction in the number of courts and a total reorganization of the remaining trial courts.  TLR also advocates the creation of “specialty courts” to try what it terms as “complex cases,” including products liability cases.  There may also be a bill filed this session which would abolish the appellate courts in Corpus Christi and El Paso (courts thought to be liberal by some critics).

 

The lobby for injured victims, Texas Watch, advocates raising the cap on non-economic damages in medical malpractice cases from $250,000 to $500,000 and linking future increases to the consumer price index.  On the other hand, some tort reform groups have called for a new cap of $250,000 on non-economic damages in all civil cases as well as caps on attorneys’ contingent fees.  The plaintiffs attorneys are planning to have legislation introduced which will replace the “willful and wanton” standard of fault in emergency room malpractice cases with a lower “negligence” standard of fault.  These plaintiffs lawyers claim that not one emergency room medical malpractice case has been successful since the willful and wanton standard took effect in 2003 because it essentially requires the showing of criminal intent on the part of the emergency room physician.

 

And finally, you may have heard about our Tippi Hedren moment here in Austin when whole flocks of birds swooped in and suddenly dropped dead near the state capitol building late one Sunday night.  Almost the entire downtown area was closed Monday until Kentucky Fried Chicken finally volunteered to clean up the mess.

 

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David Chamberlain has been named Course Director of the State Bar of Texas Advanced Personal Injury Law Course.  This three day seminar will take place in Dallas, Houston and San Antonio in July and August.

                                                                                    

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Tx/Up! International Update:  Citizens throughout Mexico have taken to the streets in protest of the increasing price of tortillas.  The increase has been widely blamed on the growing demand on corn for use in the refining of ethanol fuel products.  Well, we here at Tx/Up! say its time for Tortilla Reform!

 

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We will cover all the new legislation and case decisions of  2007 at our full day, fully accredited, 12^th Annual Ultimate Claims Handling Seminar on October 5, 2007 at the CityPlace Conference Center in Dallas, Texas. Over 200 claims professionals, lawyers and risk managers attended last year making it a sellout, so mark your calendar now and save the date.  Registration forms will be available in August.

 

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 and San Antonio

512-474-9124

visit us at  www.chmc-law.com.