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Legislative Issues Archives

Education Commissioner Cannot Preempt Venue

The Texas Supreme Court recently ruled that, when a school district and a teacher agree to Travis County as the venue where their dispute should be decided, the Commissioner of Education cannot block that choice.

Education Commissioner Cannot Preempt Venue

The Texas Supreme Court recently ruled that, when a school district and a teacher agree to Travis County as the venue where their dispute should be decided, the Commissioner of Education cannot block that choice.


The Supreme Court recently ruled against a tenured professor who had sued the University of Houston under the Whistleblower's Act, alleging that it had retaliated against him after he reported "contracting and accounting irregularities." At trial, the jury listened to the evidence and ruled in favor of the professor. When the university appealed, the court of appeals ruled that it had waived its "legal sufficiency" challenge to the reporting requirement of the Act. But in The University of Houston v. Barth, ___ S.W.3d ___ (Tex. 2010)(6/11/10), decided last month, the Supreme Court reversed and remanded the case to the court of appeals, saying that the reporting requirement is "jurisdictional."


The Texas Supreme Court recently overturned another jury verdict. In the case of Wal-Mart Stores, Inc. v. Merrell, et al., ___ S.W.3d ___ (Tex. 2010), the court threw out the testimony of the expert witness; without that testimony, the plaintiff's did not have sufficient evidence for their case.


Today, in the opinion of Waffle House, Inc. vs. Cathie Williams, the Texas Supreme Court threw out a jury verdict in favor of a female employee who had been subjected to sexual harassment at work. The woman, who had been the victim of assault by a cook, sued her employer, Waffle House, Inc. The conduct involved both offensive comments and contact.


Olivia Carbajal was injured when she drove her car "onto an excavated road." The Dallas Police Department investigated, and the officer noted in the accident report that the street "was not properly blocked." Ms. Carbajal filed suit without providing "formal notice" required by the Texas Tort Claims Act, relying instead upon the "actual notice" provision of the Act. In the recent opinion of City of Dallas v. Carbajal, ___ S.W.3d ___ (Tex. 2010)(5/7/10), the Texas Supreme Court ruled that the notice provision of the Tort Claims Act is jurisdictional, and that police report did not provide the city with actual notice of the claim, so it reversed and rendered a judgment that she cannot pursue her claim.
"When a claimant fails to timely provide a governmental unit with formal notice of a claim, . . . the Texas Tort Claims Act requires the governmental unit to have 'actual notice that . . . the claimant has received some injury,' id. 101.101(c). In Texas Department of Criminal Justice v. Simons, we clarified that merely investigating an accident does not provide a governmental unit with actual notice--that is, with subjective awareness of its fault. Because the police report here was at most an initial response to the accident, we hold that the governmental unit, the City of Dallas, lacked actual notice. The provision of notice is a jurisdictional requirement in all suits against a governmental unit."
Governmental entities only "have actual notice when they have 'knowledge of (1) a death, injury, or property damage; (2) the governmental unit's alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved.'" Regarding the second requirement, actual notice means "the same notice to which it is entitled by section 101.101(a). . . . It is not enough that a governmental unit should have investigated an incident . . . , or that it did investigate, perhaps as part of routine safety procedures, or that it should have known from the investigation it conducted that it might have been at fault. If a governmental unit is not subjectively aware of its fault, it does not have the same incentive to gather information that the statute is designed to provide, even when it would not be unreasonable to believe that the governmental unit was at fault." Here, the report "did not provide the City with subjective awareness of fault. . . ." It was "no more than a routine safety investigation. . . ." "When a police report does not indicate that the governmental unit was at fault, the governmental unit has little, if any, incentive to investigate its potential liability because it is unaware that liability is even at issue."

Supreme Court Upholds Verdict for Customer

Last month, in the case of Del Lago Partners, Inc., et al. v. Smith, ___ S.W.3d ___ (Tex. 2009)(4/2/10), the Texas Supreme Court upheld a verdict in favor of a customer of a bar. The patron was severely injured when a fight broke out between rival groups as the bar was closing and funneling all customers out through one exit. The groups had engaged in "threats, cursing, and shoving" for ninety minutes beforehand, yet the bar had not called security or closed down, and instead had continued to serve drinks. The Supreme Court affirmed a $1.48 million award - based upon a jury finding that the bar was 51% at fault and the injured customer was 49% at fault - agreeing with the court of appeals: "'A reasonable person who knew or should have known of the one-and-a-half hours of ongoing 'heated' verbal altercations and shoving matches between intoxicated bar patrons would reasonably foresee the potential for assaultive conduct to occur and take action to make the condition of the premises reasonably safe.'" Thus, while there is no universal duty to protect a patron, in this case the brawl was foreseeable.
A legal duty is a question of law. "In premises-liability cases, the scope of the duty turns on the plaintiff's status. Here, Smith was an invitee, and generally, a property owner owes invitees a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known." Bar owners do not "always or routinely" have a duty to protect patrons from each other. "Generally, a premises owner has no duty to protect invitees from criminal acts by third parties. We have recognized an exception when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable." Here, proof of criminal acts or prior occasions was unnecessary. "[C]riminal misconduct is sometimes foreseeable because of immediately preceding conduct." In this case, Del Lago had a duty "because [it] had actual and direct knowledge" of an imminent violent brawl. Its duty "arose not because of prior similar criminal conduct but because it was aware of an unreasonable risk of harm at the bar that very night." The "unreasonableness" of a risk, which is not completely separated from foreseeability, "turns on the risk and likelihood of injury . . . as well as the magnitude and consequences of placing a duty on the defendant."
To determine duty, "'the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.'" This case does not announce a "general rule" of a duty, but "on these facts" the defendant had a duty. That duty requires the premises owner to "'either adequately warn of the dangerous condition or make the condition reasonably safe.'" Here, there was evidence of the breach of the duty by not contacting security, continuing to serve drinks, and inadequate training. That the plaintiff was found to be contributory negligent did not eliminate the defendant's duty. "[W]e have expressly abolished a 'no-duty' doctrine previously applicable to open and obvious dangers known to the invitee," as does the comparative negligence statute. Moreover, in "some circumstances, no warning can suffice. . . ."
Accordingly, while the Supreme Court ordinarily will not affirm a judgment against a premises owner in favor of person injured by criminal misconduct on the property, "on this record this sequence of conduct on this night in this bar could foretell this brawl."

Supreme Court Upholds Jurisdiction

The Texas Supreme Court recently upheld the jurisdiction of Texas courts over a German manufacturer which established a Texas distributor to market its products after a Texan was injured by a high-pressure hose which failed. The case is Spir Star AG v. Kimich, ___ (Tex. 2010)(3/12/10)

Supreme Court Reduces Punitive Damages Award

Last month, the Texas Supreme Court reduced a jury's determination of punitive damages, after previously eliminating the jury's award of damages for loss of inheritance. The case is named In re Columbia Medical Center of Las Colinas d/b/a Las Colinas Medical Center, ___ S.W.3d ___ (Tex. 2009)(3/12/10). It was a medical malpractice suit in which the Supreme Court upheld the jury's finding that the hospital's gross negligence caused the patient's death. However, the Court disagreed with the jury that the evidence showed damages for loss of inheritance. Having lowered the judgment for the total actual damages, the Court then lowered the punitive damages awarded by the jury to punish the hospital for its gross negligence.

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