Texas Supreme Court Reverses Ruling in Casados

In Port Elevator-Brownsville v. Casados, 2012 WL 247985 (Tex. 2012), the Texas Supreme Court reversed a previous judgment from the Corpus Christi Court of Appeals and held that a employee’s claim of negligence was barred by the exclusive-remedy provision of the Texas Workers’ Compensation Act.  The Texas Supreme Court further held that employers cannot, intentionally or unintentionally, split its workforce by electing workers' compensation coverage for some but not all employees.

Plaintiffs argued that the workers’ compensation policy did not cover the deceased employee because: (1) the employer had not paid premiums for the employee; (2) the employee was not covered by any job classification identified in the employer's workers' compensation policy; and (3) the employer denied coverage for the workers' loss.

The Texas Supreme Court held that the employer’s failure to pay specific premiums under the workers’ compensation policy did not preclude coverage.  Also, the fact that the employee was not covered by any job classification identified in the employer's workers' compensation policy did not preclude coverage.  Finally, the insurer’s denial of coverage for the worker did not preclude the application of the Texas Workers’ Compensation Act.   In conclusion, because the employer subscribed to workers' compensation insurance, the employee was employed by the employer, and the employee suffered a work-related injury, the remedy included in the Texas Workers' Compensation Act was the exclusive remedy for the employee’s injury and any negligence claim against the employer was barred.

Police Officer With A Level II Certification In Accident Reconstruction Not Qualified As Expert

The Texarkana Court of Appeals recently issued its' opinion in Lopez-Juarez v. Kelley.  The Court of Appeals held that a police officer with a Level II certification in accident reconstruction was not qualified to testify as an expert witness in a negligence action that involved a multi-vehicle accident.

Specifically, the Court of Appeals held:

1.  As a general rule, police officers, based on their position as police officers alone, are not qualified to render opinions regarding accidents. However, police officers are qualified to testify regarding accident reconstruction if they are trained in the science and possess the high degree of knowledge sufficient to qualify as an expert.

2.  There is an inconsistency in the caselaw in Texas because different accidents require different levels of expertise; whether a police officer is qualified depends on the facts of each case. While a police officer may possess sufficient knowledge, skill, or expertise for one case, another case might require a greater degree of expertise. There are no definite guidelines.  In this case, the expert attended a police academy conducted by the Tyler Police Department and completed a Level II certification in accident reconstruction through the DPS in Austin.  However, the expert admitted his expertise was limited to measuring and diagramming an accident site. He further admitted he had no training in physics and did not like math. The Court of Appeals held that he qualified to testify concerning his measurements and diagrams, but that it was an abuse of discretion for the trial court to conclude he was qualified to testify as an expert in accident reconstruction.

3.  There is not a per se rule that the testimony of a police officer with a Level II certification is always admissible expert testimony; this is because whether a police officer possesses sufficient expertise must be evaluated under the facts of each case and the specific issue on which the expert testimony is proffered.  This holding creates a circuit split, as it is inconsistent with the Waco Court of Appeals ruling in Lingafelter v. Shupe, a case which the Texarkana Court of Appeals admits is factually indistinguishable. 

Construction Law Update: Liability of Texas Design Professionals Who Remain Engaged in Construction Observation and Contract Administration Work

The Maxfields (“Owners”) contracted with Black & Vernooy Architects (“Architects”) and Nash Builders, Inc. (“Builders”) for the design and construction of a vacation home.  

Under the Owners’ contract with the Architects, the Architects were required to design the residence, to perform various post-design contract administration services, and to keep the Owners informed about the progress of the work—esp., to guard against defects and deficiencies in the work; and to determine if the residence was generally constructed in accordance with the contract documents.  However, the contract also included a provision indicating that the Architects were not responsible for the Builder’s means and methods and that the Architects would not be liable for the Builder’s failure to construct the building according to plans and specifications.

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Toyota Extends Recall And Suspends Sales Over Accelerator Problem

Yesterday, Toyota Motor Corporation extended its recall from last fall and added an additional 2.3 million vehicles to the recall list over problems with accelerators in a number of its most popular vehicles.  Toyota also suspended sales and stopped production of a number of the models subject to the recall until a fix can be implemented. The accelerator problem has been linked to a number of motor vehicle accidents throughout the country involving serious injuries and deaths to occupants.

This has been a public relations nightmare for Toyota that is not getting any better as each day passes.  While Toyota has told federal investigators that it thinks a friction problem in its accelerator pedal mechanisms may make the pedal "harder to depress, slower to return, or, in the worst case, mechanically stuck in a partially depressed position", CTS Corp, the supplier that makes the devices for Toyota, said in a statement Wednesday that the friction problem accounts for fewer than a dozen cases  stuck accelerators and, "in no instance did the accelerator actually become stuck in a partially depressed condition".   

The Toyota vehicles subject to the recall include the following makes and models:

  • 2009-2010 RAV4
  • 2009-2010 Corolla
  • 2009-2010 Matrix
  • 2005-2010 Avalon
  • 2007-2010 Camry (except hybrids)
  • 2010 Highlander (except hybrids)
  • 2007-2010 Tundra
  • 2008-2010 Sequoia
No Lexus Division or Scion vehicles are affected by the new recall. Also not affected are Toyota Prius, Tacoma, Sienna, Venza, Solara, Yaris, 4Runner, FJ Cruiser, Land Cruiser, Highlander hybrids and Camry hybrids, which will remain for sale.

According to Toyota, if you experience a sticking accelerator pedal while driving, you should take one of the following actions:

• If you need to stop immediately, the vehicle can be controlled by stepping on the brake pedal with both feet using firm and steady pressure. Do not pump the brake pedal as it will deplete the vacuum utilized for the power brake assist.
• Shift the transmission gear selector to the Neutral (N) position and use the brakes to make a controlled stop at the side of the road and turn off the engine.
• If unable to put the vehicle in Neutral, turn the engine OFF. This will not cause loss of steering or braking control, but the power assist to these systems will be lost.
• If the vehicle is equipped with an Engine Start/Stop button, firmly and steadily push the button for at least three seconds to turn off the engine. Do NOT tap the Engine Start/Stop button. 
• If the vehicle is equipped with a conventional key-ignition, turn the ignition key to the ACC position to turn off the engine. DO NOT remove the key from the ignition as this will lock the steering wheel.  

Customers who have any questions or have experienced any issues with their accelerator pedals should visit Toyota.com, contact the Toyota Customer Experience Center at 1-800-331-4331, or call their local Toyota dealer.

Fatal Medical Errors Continue To Be Hidden Nationwide

According to a recent series of articles written by Hearst Newspapers and reported in both the Houston Chronicle and San Francisco Chronicle, medical negligence is the leading cause of accidental death in the United States.  The title of the series is called "Dead by Mistake" and reports that 98,000 people die each year from preventable medical errors.  A report from the Centers for Disease Control also concluded that 99,000 patients each year die from hospital-acquired infections almost all of which, experts say, are entirely preventable.

In 1999, a report entitled "To Err Is Human" was released and it was believed to be the beginning of greater patient safety.  Unfortunately, according to Dead by Mistake, efforts to establish a mandatory national reporting system of serious medical errors was blocked by the American Medical Association and American Hospital Association after both groups spent nearly $81 million in lobbying efforts to prevent such a reporting system.

Dead by Mistake is an intriguing and, unfortunately, frightening report of how many people die each year from unnecessary medical errors in the United States.  The report is quick to point out that we have mandatory reporting nationwide for fatal car wrecks, but not for medical errors.  It is believed that if there was mandatory reporting of serious medical errors, we would learn that the annual death rate among Americans from medical errors would exceed the annual number of deaths in car wrecks. 

The report concludes by offering tips to patients on how to try and protect themselves from medical errors.

Joseph Raz Article on "Responsibility & the Negligence Standard"

Joseph Raz, from Oxford University and Columbia Law, has recently updated the SSRN site by posting a new article entitled Responsibility & the Negligence Standard.

The following is an abstract of the article:

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.

You can download the article by clicking here.