Damages–Texas Nonsubscriber Lawyers

Employer Negligence In Lifting Injury/Duty/Forseeability/Damages
Brookshsire Brothers v. Lewis, 1999 WL 650786 (Tex. App. – Beaumont)
August 16, 1999

Plaintiff injured his back while working in a Brookshire Brothers Meat Department. The Beaumont Court of Appeals affirmed a damages award of $300,000 and stated:
1. The employer is not an insurer of its employee’s safety but does have a duty of ordinary care to provide a safe workplace.
2. The employer’s duty encompasses a duty to provide rules and regulations for safety, to furnish safe instrumentalities, and to select competent fellow servants.
3. These duties are non-delegable.
4. Proximate cause includes cause in fact and forseeability.
5. The test for cause in fact is whether the negligent act was a substantial factor in bringing about the injury and without which, the injury would not have occurred.
6. Cause in fact is not shown if the negligence only furnished a condition that made the injury possible.
7. An employer has an obligation to provide adequate help to do a task.
8. An employer is not liable if it provides adequate help but the employee proceeds with a task voluntarily when help is temporarily unavailable.
9. Comparative negligence not available to Employer.
10. No offset due the employer for other recovery by employee.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Jul 27th, 2015 Nonsubscriber Law

Even If Work Activities Caused The Injury, Plaintiff Must Show Injury Resulted From Employer Negligence To Recover–Texas Nonsubscriber Lawyers

TEXAS NON-SUBSCRIBER LAW
Even If Work Activities Caused The Injury, Plaintiff Must Show Injury Resulted From Employer Negligence To Recover
Excel Corp. v. Apodaca, 2002 WL 1379009 (Tex. 2002)
June 27, 2002
Apodaca filed suit against his employer for injuries he sustained in the course and scope of his employment. The jury ruled in Apodaca’s favor, and the court of appeals affirmed.
Apodaca offered evidence that Excel could have set up the machine he operated in a better manner that would have limited the chance of injury and instituted measures to diagnose cumulative trauma injuries early enough to reverse them with conservative care. This was supported by an OSHA study. The Supreme Court noted that Apodaca’s injuries did result from his work, bur ruled that there was no evidence that the injury resulted from the employer’s negligence. There was no medical evidence that established that Apodaca would not have been injured but for any negligent act by Excel. The court stated that the evidence does not show that had Excel modified the worksite or job requirements, or had it conducted symptoms surveys, Apodaca would not have suffered his injuries or they would have been diagnosed sooner and reversed using other treatments.

Jul 27th, 2015 Nonsubscriber Law

Employer May Not Assert Contributory Negligence But May Assert A Sole Cause Defense–Texas Nonsubscriber Lawyers

TEXAS NONSUBSCRIBER LAW
Employer May Not Assert Contributory Negligence But May Assert A Sole Cause Defense
Skiles v. Jack In The Box, Inc., 2005 Tex.App.Lexis 5305 (Tex.App.-Dallas 2005)
July 7, 2005
Skiles appealed a finding that his own negligence was the sole proximate cause of his injuries. The court stated that although a nonsubscriber may not assert a defense of contributory negligence, it may offer evidence establishing that the employee’s conduct was the sole proximate cause of the injury.

Jul 27th, 2015 Nonsubscriber Law

Proximate Cause And Foreseeability in Texas Nonsubscriber Law

TEXAS NON-SUBSCRIBER LAW
Proximate Cause And Foreseeability in Texas Nonsubscriber Law
Allsups Convenience Stores v. Warren, 934 S.W.2d 433 (Tex.App-Amarillo 1996, no writ)
A store manager injured her back while unloading a truck. She had arranged to have another employee unload the truck, but that employee failed to show up for work and the manager could not find another employee to assist her in unloading the truck. The manager alleged that the nonsubscriber was negligent in failing to provide her with assistance, failing to properly train her on lifting, and failure to provide her with a back brace or belt. The Court of Appeals reversed the jury’s finding of negligence.
The Court held that the employee failed to present evidence that the employer was negligent. The Court stated that the employer had no duty to make sure that an employee appeared for work as scheduled. The Court further stated that the employee did not provide any evidence that the employer did not provide proper training. The employee’s “bald conclusions” that the employer did not properly train her in lifting heavy items did not, without more, satisfy the employee’s burden to provide factual proof of the training the employer negligently failed to provide.
The Court noted that the employee had unloaded trucks in the past, that the employee never requested a back brace or belt and never complained that the unloading of the truck on past occasions was unsafe. The Court also noted that the employee failed to show that use of a back brace was common in the industry or was industry standard or that a reasonably prudent employer would have provided a back brace. The Court concluded that because the evidence showed that unloading of the trucks could be performed in the usual and proper way in safety without a protective back brace or safety belt, there was no evidence that the employer was under a duty to provide the employee with a back brace, and the employee failed to present any medical evidence that a back brace would have prevented the employee’s injury.

Jul 27th, 2015 Nonsubscriber Law

Employee Phone Calls and Personal Comfort Doctrine–Texas Workers’ Compensation Defense Attorneys

PERSONAL COMFORT AND CONVENIENCE
Does It Apply When An Employee Makes A Personal Phone Call?
Yeldell v. Holiday Hills Retirement And Nursing Center, Inc., 701 S.W.2d 243 (Tex. 1985), December 11, 1985
During Yeldell’s regular shift and while at her duty station, she called her daughter. As she hung up the telephone, the cord became entangled with a coffee urn that overturned and spilled on her, resulting in serious burns.
Holiday Hills contended that the personal telephone call was a deviation which took Yeldell out of the course and scope of her employment.
The court found that an employee need not have been engaged in the discharge of any specific duty incident to his employment; rather, an employee in the course of his employment may perform acts of a personal nature that a person might reasonably do for his health and comfort, such as quenching thirst or relieving hunger; such acts are considered incidental to the employee’s service and the injuries sustained while doing so arise in the course and scope of his employment and are compensable. Making a personal telephone call during working hours may be as essential as a rest period or a refreshment break. In particular, a parent’s telephone call to a minor child at bedtime is as reasonably necessary to a workers’ well-being as quenching one’s thirst or relieving hunger.

Jul 27th, 2015 Workers' Compensation Defense

Call Upon a Moral Power Potent Enough to Shield Our Liberties

QUOTES ON LIBERTY AND JUSTICE, TRUTH AND DUTY:

“It is the duty of youths to war against indiscipline and corruption because they are the leaders of tomorrow.”

―Ifeanyi Enoch Onuoha

“The first freedom is freedom from sin.”

-Martin Luther

“Great General:

The entire Nation of the Black Slaves very humbly begs your august person to accept its respectful homage and to cast a humanitarian eye on the reflections it takes the liberty of presenting to you.

We are not unaware, Great General, of all the negative things that have been presented to you about us; we are painted in such a foul way that even the most solidly virtuous person would have reason to turn against us; but God, who sooner or later always stops the proud plans of men, this God who is so just knows what is deep inside us; he knows that we have never had any project but to patiently accept the oppression of our persecutors. This eternal God, who could no longer suffer so much persecution, must have given Louis XVI, the greatest of monarchs, the charge of delivering all the miserable Christians oppressed by their unjust fellow men….

We have just learned with extreme desperation that the mulattos, far from taking care of their enslaved mothers, brothers, and sisters, have dared claim that we do not deserve to enjoy, as they do, the benefits that come from peace and liberty and are incapable of continuing the hard work that supports the merchants of the white nation and cannot provide any service to the state. This is a great absurdity, and this vile action must demonstrate to you the baseness of spirit of this proud nation and make you see the hate, the jealousy, and all the horror of the disdain this nation has for us….It is not jealousy that forces us to complain about the mulattos, but the harshness they have shown in creating a plan for liberty for only themselves, when we are all of the same family. We do not know, Great General, if you have received the request of the mulattos, but you will receive it soon, and we are happy if we have the good fortune to have reached you before it….

We end our reflections by declaring to you that the entire Nation of Black Slaves united together has a single wish, a singly desire for independence, and all the slaves with a unanimous voice send out only one cry, one clamor to reclaim the liberty they have gained through centuries of suffering and ignominious servitude.

This is no longer a Nation that is blinded by ignorance and that trembles at the threat of the lightest punishments; its suffering has enlightened it and has determined it to spill to its last drop of blood rather than support the yoke of slavery, a horrible yoke attacked by the laws, by humanity, and by all of nature, by the Divinity and by our good King Louis XVI. We hope it will be condemned by the illustrious [Governor] Viome’nil. Your response, Great General, will decide our destiny and that of the colony. Please send it to the parish priests who will inform us about it at the announcements at the end of mass. We await it with the greatest impatience, but without leaving behind the respect that is due to your dignity, and the Nation asks you to believe it to be, [Great] Grand General, your most humble and obedient servant.

Signed,

The Entire Nation”

Letter from the Slaves of Martinique, 29 August 1789, Slave Revolution in the Caribbean, 1789-1804: A Brief History with Documents. New York: Bedford/St. Martin’s.

“Were the judgments of mankind correct, custom would be regulated by the good. But it is often far otherwise in point of fact; for, whatever the many are seen to do, forthwith obtains the force of custom. But human affairs have scarcely ever been so happily constituted as that the better course pleased the greater number. Hence the private vices of the multitude have generally resulted in public error, or rather that common consent in vice which these worthy men would have to be law.” Institutes of the Christian Religion

-John Calvin

“Hatred is something we must fight against.”

-Leslie Meisels, Holocaust Survivor

“At no period of our history were we engaged in a more just and holy effort for the maintenance of liberty and independence than at the present moment.”

-John B. Jones

“What one generation tolerates, the next generation will embrace.”

-John Wesley

“Depend upon it—there is no difference between Consolidation and Empire; no difference between Centralism and Imperialism. . . . If the worst is to befall us; if our most serious apprehensions and gloomiest forebodings as to the future, in this respect, are to be realized; if Centralism is ultimately to prevail; if our entire system of free Institutions as established by our common ancestors is to be subverted, and an Empire is to be established in their stead; if that is to be the last scene in the great tragic drama now being enacted: then be assured, that we… will be acquitted, not only in our own consciences, but by the judgment of mankind, of all responsibility for so terrible a catastrophe, and from all the guilt of so great a crime against humanity!”

-A. H. Stephens

“Aim at a high mark and you will hit it. No, not the first time, nor the second and maybe not the third. But keep on aiming and keep on shooting for only practice will make you perfect. Finally, you’ll hit the Bull’s-Eye of Success.”

-Annie Oakley

“Whatever restraint is larger than the necessary protection of the party, can be of no benefit to either, it can only be oppressive; and if oppressive, it is, in the eye of the law unreasonable.” Horner v. Graves, 1831

-Judge C.J. Tindal

“Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power.” Remarks by the President on Review of Signals Intelligence (17 June 2014) at the U.S. Department of Justice in Washington, D.C.

-Barack Obama

“I trust that if the dust of age and neglect should ever gather on the sacred volume of our Constitution, and there be a descendant of mine on the floor representing the people as I do… he will be able to call upon that musty record a moral power potent enough to shield their liberties, and to resuscitate and bless the condition of society throughout our land.”

-Henry W. Hilliard

“Justice is truth in action.” Speech, Feb. 11, 1851

-Benjamin Disraeli

“I don’t believe in quotas. America was founded on a philosophy of individual rights, not group rights.”

-Clarence Thomas, U.S. Supreme Court Justice

“A gentleman will not insult me, and no man not a gentleman can insult me.”

-Frederick Douglass

“If you want a picture of the future, imagine a boot stamping on a human face – forever.” 1984

-George Orwell

“Democracy is good. I say this because other systems are worse.”

-Jawaharlal Nehru

“Education is a weapon, whose effect depends on who holds it in his hands and at whom it is aimed.”

-Joseph Stalin

“Government is not reason; it is not eloquence; it is force. Like fire, it is a dangerous servant and a fearful master.”

-George Washington

“We had received this free government from our fathers. Baptized in their blood; we had received from them the sacred injunction to preserve…The heritage of freedom which our fathers left us, we may not be able to bequeath to you.”

-Robert Dabney

“Be with a leader when he is right, stay with him when he is still right, but, leave him when he is wrong.”

-Abraham Lincoln

“Democracy is the form of government that gives every man the right to be his own oppressor.”

-James Russell Lowell

Jul 27th, 2015 Interesting Quotes in History

Carrier’s Failure To Raise Issue Of Timely Filing Of TWCC-52 Resulted in Waiver–Texas Workers’ Compensation Defense Attorneys

Carrier’s Failure To Raise Issue Of Timely Filing Of TWCC-52 Resulted in Waiver

APPEAL 951305 – SEPTEMBER 21, 1995

The HO made findings of SIBs eligibility for the second compensable quarter. The Carrier appealed and stated that it was relieved of liability because Claimant had not filed a timely TWCC-52.

The AP affirmed and stated that the Carrier had waived the issue of whether the Claimant’s TWCC-52 was timely filed. When the Carrier received the TWCC-52 in December, 1994, it was put on notice that the application was late because the Claimant’s initial SIBs quarter expired on October 6, 1994. The Carrier did not raise this issue until the BCCH took place.

Claimant’s testimony about this issue was not an unequivocal manifestation of consent to add the issue.

Jul 27th, 2015 Workers' Compensation Defense

Discharge for Attendance Problems–Texas Unemployment Compensation Law Cases–Employment Law

Appeal No. 2770-CA-76. Since the final absences
for which the claimant was fired were due to
claimant’s personal illness, no misconduct disqualification
is possible.

Appeal No. 947-CA-77. Even though the
claimant was absent due to personal illness,
her failure to give proper notice of the absences
was misconduct.

Appeal No. 660-CA-76. Absence without notice
for two days in a row was misconduct, even without
a clear policy to that effect.

Appeal No. 87-08030-10-050587. Missing work
due to being in jail, when the arrest and jailing
were for an offense shown to have been committed
by the claimant, was misconduct.

Appeal No. 2622-CA-76. A claimant who was
arrested and detained in jail for three weeks was
not discharged for misconduct, since the charges
were later dropped.

Jul 24th, 2015 Employment Law Defense

Sample Form Warranty–Texas Construction Law

.
Warrants all Work completed under the
Contract Agreement
between _________________________________
and , dated _______________, for a period of
TWO YEARS from date of substantial completion of the Work.
This warranty is valid only for those named above while they occupy the address below and provided normal cleaning and maintenance procedures are followed, and excludes changes due to wear, tear, normal weathering and defects that result from characteristics common to the materials used. Other limitations apply as indicated on the back of this document. By signing below you declare you have read the reverse side and both understand and accept these limitations.
Any guarantees, warranties, understandings, or representations made by (or expressed by) any employee, subcontractor or supplier not set forth specifically in this document is NOT to be considered an extension of this warranty.
This limited warranty is the only express
Warranty provides.
Job Address: _____________________________________________
Date of Substantial Completion: ____________________
Owner Signature(s): ____________________________Date_________
____________________________Date_________
Rep.: _________________________Date_________
The following basic limitations apply to this warranty:
1.
, warrants to the Owner that all materials and equipment incorporated in the Work will be as specified and that all work was completed in a workpersonlike manner and all materials were installed according to the manufacturer’s specifications, unless otherwise specified.
2.
All workpersonship and warranty concerns and remedies shall conform to the guidelines found in the publication “Residential Construction Performance Guidelines – Homeowners Reference, NAHB, 2000.” This publication is available upon request. If an item is not covered in that publication, standard industry practice shall govern. Except as stated in paragraph 8 below, must be given the opportunity to repair or fix the problem prior to replacement.
3.
If the problem can be repaired so that the item or installation functions as it was originally designed to OR so that the difference in cosmetic appearance is negligible from the original and new appearance, the remedy will be to repair the problem. Complete replacement of the damaged or defective product or work will only be done if the above guidelines cannot be met.
4.
This warranty is personal to the Owner and is valid only while the Owner occupies the property where the work was performed.
5.
All manufacturers’ warranties apply. If an item or part is warranted by the manufacturer for more than two years, the extended warranty will govern. If the manufacturers’ warranty is for less than two years, will warrant the item for the additional time period except for the following items:
a. Any item that is not purchased through Company Name (i.e. appliances.)
b. Any item Company Name recommends against installing, as listed below:
Items not covered beyond the manufacturers’ warranty: ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
6.
Other Exclusions:
a)
Any work not specifically specified in the Contract Agreement with
b)
Defects that result from characteristics common to the materials used, such as (but no limited to) warping and deflection of wood; fading, chalking, and checking of paint from exposure to sunlight; cracks that occurred during the drying of concrete, stucco, plaster, bricks and masonry; drying, shrinking and cracking of caulking and weather, stripping.
c)
Damage resulting from ordinary wear and tear, abusive use, or lack of proper maintenance of the work as performed by
7.
must be given fair notice and adequate time to remedy the warranty problem with its employees or qualified subcontractors. will schedule an inspection date not later than ten days after Owner initially notifies of the problem. After inspection of the problem, will schedule the remedy, the time for which may vary considerably depending on the problem. Owner WILL NOT be reimbursed for repairs undertaken without prior written approval from .
8.
If the warranty problem is an emergency (meaning that further damages to the home, it’s contents or occupants may occur without immediate remedy) AND Owner has attempted to contact all means available, Owner may make other arrangements necessary to remedy the problem. Owner must document all work completed (photos are helpful), keep all parts replaced, provide with a written invoice for the work performed, and demonstrate all efforts to contact before resorting to other suppliers or workers. will reimburse Owner for such emergency work to the extent it was reasonably necessary, is reasonably documented and was unavailable to perform the work.

Jul 24th, 2015 Construction Law

Carrier’s Entitlement to Reimbursement From the Subsequent Injury Fund (SIF)–Texas Workers’ Compensation Case Law

In 1995, the Texas Court of Appeals decided the case of Texas Workers’ Comp. Comm’n v. City of Bridge City, 900 S.W.2d 411, 416 (Tex. App.–Austin 1995, writ denied). Bridge City addressed a carrier’s entitlement to reimbursement from the Subsequent Injury Fund (SIF) regarding benefits paid pursuant to an interlocutory order or a contested case decision when the order is overturned by the Appeals Panel or court. Based on the language in the Texas Workers’ Compensation Act, the Court of Appeals stated that a carrier is not entitled to reimbursement for benefits paid pursuant to a TWCC order between the date of a contested case hearing decision and the TWCC Appeals Panel decision. This gap in the period of benefits that carriers could obtain reimbursement from the SIF could under certain circumstances be significant.

Jul 24th, 2015 Workers' Compensation Defense