Employer Negligence In Lifting Injury/ Duty/ Forseeability/ 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.

Martindale AVtexas[2]

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.

 

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.

Martindale AVtexas[2]

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.

 

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.

Martindale AVtexas[2]

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.

 

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.

Martindale AVtexas[2]

RIMS ERM Conference 2015 Program Now Available

 

The RIMS ERM Conference 2015 program is now available. Join us on October 26-27 in Chicago and attend practical ERM presentations led by experienced speakers from DePaul University, Five Guys Enterprises, Harley-Davidson, PwC, The Kraft Heinz Company, Walgreen’s and more.

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.

Martindale AVtexas[2]

OSHA Safety: El Paso, Texas Manufacturing Company Faces Fines–Texas Workplace Safety Law

OSHA News Release: With long history of violations, El Paso, Texas, company faces more than $321K in federal fines [07/13/2015]

With long history of violations, El Paso, Texas, company faces more than $321K in federal fines

D&D Manufacturing ignores worker safety repeatedly, allows operation of defective press

EL PASO, Texas — With a history of safety violations dating back 15 years, an El Paso metal stamping plant is no stranger to warnings from the U.S. Department of Labor’s Occupational Safety and Health Administration.

OSHA issued 13 safety and health citations to D&D Manufacturing Inc. today following a recent inspection prompted by a formal complaint. The inspection identified 13 safety and health citations for exposing workers to amputations and other serious injuries from unsafe machinery, including a violation for ignoring the danger of allowing employees to work with a defective 500-ton metal press that the company knew had repeatedly dropped without warning.

Completed under OSHA’s National Emphasis Program on Amputations, the inspection resulted in $321,750 in proposed department fines for D&D. This inspection follows one in December 2014 that resulted in 36 federal citations for serious safety violations.

“D&D is aware of the dangers at its production facility, but has done nothing to correct them. An employee could have been seriously injured,” said Diego Alvarado Jr., OSHA’s area director in El Paso. “There is no reason, or excuse for a company to ignore basic safety requirements.”

OSHA cited the company for four willful, one repeated, six serious and two other violations. In addition to allowing workers to use the defective press, D&D did not ensure that employees on the production floor wore appropriate eye protection, given the risk of flying metal particles blinding them.

Additionally, the company failed to make sure employees used hearing protection in areas where noise levels were above the acceptable limits. The repeated violation was for failing to have all illuminated exit signs lit.

View the citations at https://www.osha.gov/ooc/citations/D_D_Manufacturing_1018388_0710_15.pdf

D&D Manufacturing fabricates stamped, metal components for equipment manufacturers. The company has headquarters in Bolingbrook, Illinois, and employs about 37 workers in El Paso. It also has a facility in Mexico. D&D has 15 business days from receipt of its citations to comply, request an informal conference with OSHA’s El Paso area director, or contest the citations and penalties before the independent Occupational Safety and Health Review Commission.

To ask questions, obtain compliance assistance, file a complaint, or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or the agency’s El Paso Area Office at 915-534-6251.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

OSHA News Release: [07/13/2015]
Contact Name: Diana Petterson or Juan Rodriguez
Phone Number: (972) 850-4710 or x4709
Email: Petterson.Diana@dol.gov or Rodriguez.Juan@dol.gov
Release Number: 15-1354-DAL

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.

Martindale AVtexas[2]

Texas Employers Fined By OSHA When a Temporary Construction Worker Is Injured After Being Denied Safety Equipment

OSHA News Release: Texas worker injured after being denied safety equipment; employers cited [07/22/2015]

Texas worker injured after being denied safety equipment; employers cited

OSHA fines Cotton Commercial USA and Gardia Construction more than $367K

HOUSTON — Despite his request for a safety harness, a temporary worker without fall protection on a roof later fell 12 feet through the roof. His fall resulted in his hospitalization with fractured arms and severe contusions.

The employer, Cotton Commercial USA Inc. in Katy, Texas, waited three days to report the injury, an investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration found. Federal law requires employers to report such incidents within 24 hours.

OSHA today fined Cotton Commercial $362,500 for seven safety violations, including one willful and four willful egregious. The violations include failing to provide fall protection for four workers, failure to promptly report the hospitalization of an employee resulting from a workplace incident, and not training employees in the use of fall protection and ladders. Cotton Commercial citations are available here.

Gardia Construction, which provided the laborers to Cotton Commercial, received a citation for one serious violation and a fine of $4,900, for failing to conduct frequent and regular inspections of the job site where its laborers worked. The Gardia citations are available here.

“Falls kill workers, but they are preventable,” said Assistant Secretary for Occupational Safety and Health Dr. David Michaels. “Cotton Commercial denied its workers the safety equipment they are required to provide, and the company intentionally waited several days to report the incident and misled OSHA’s inspectors.”

Staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers. This includes ensuring that OSHA’s training, hazard communications and record-keeping requirements are fulfilled.  And for construction workers, this responsibility includes ensuring that frequent and regular inspections of worksites are conducted.

“Cotton Commercial was well aware of how to prevent safety hazard and, in fact, on the following day Cotton made sure all workers were provided with the required safety equipment. It shouldn’t have to take a serious injury for a company to comply with the law,” said OSHA Regional Administrator John Hermanson.

Cotton Commercial employs about 227 workers and operates throughout the U.S. The company provides remediation services for commercial and residential structures damaged from disasters. At the time of the accident, Texas Mutual provided company employees with workers compensation insurance. Its current provider is Affordable Insurance of Texas. Gardia Construction, located in Gretna, La., employs about 80 workers and provides labor to Cotton Commercial. Gardia does not carry workers compensation insurance.

Both employers have 15 business days from receipt of its citations to comply, request an informal conference with OSHA’s Houston South area director, or contest the citations and penalties before the independent Occupational Safety and Health Review Commission.

To ask questions, obtain compliance assistance, file a complaint, or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or the agency’s Houston South office at 281-286-0583 or its Houston North office at 281-591-2438.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

OSHA News Release: [07/22/2015]
Contact Name: Diana Petterson or Juan Rodriguez
Phone Number: (972) 850-4710 or x4709
Email: Petterson.Diana@dol.gov or Rodriguez.Juan@dol.gov
Release Number: 15-1411-DAL

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.

Martindale AVtexas[2]

The Public Information Act and Texas Law on Obtaining Government Records of Texas Department of Insurance

Texas Government Code, Chapter 552, gives Texas businesses and individuals the right to access government records; and an officer for public information and the officer’s agent may not ask why you want them. All government information is presumed to be available to the public. Certain exceptions may apply to the disclosure of the information. Governmental bodies shall promptly release requested information that is not confidential by law, either constitutional, statutory, or by judicial decision, or information for which an exception to disclosure has not been sought.

Request Information

To request information from TDI, please submit your request as follows:

By mail to:
Office of Agency Counsel
Texas Department of Insurance
P.O. Box 149104, Mail Code 110-1C
Austin, Texas 78714-9104

By e-mail to:
AgencyCounsel@tdi.texas.gov

By fax to:
(512) 490-1021

In person at:
333 Guadalupe
Austin, Texas 78701

For complaints regarding failure to release public information, please contact your local County or District Attorney at:

  • Office of the Attorney General, Open Records Hotline, at 512-478-6736 or toll-free at 1-877-673-6839.
  • Complaints Regarding Overcharges, please contact the Office of the Attorney General at (512) 475-2497.

If you need special accommodation pursuant to the Americans with Disabilities Act (ADA), please contact our ADA coordinator at (512) 676-6103.

Rights of Requestors


You have the right to:

  • Prompt access to information that is not confidential or otherwise protected;
  • Receive treatment equal to all other requestors, including accommodation in accordance with the Americans with Disabilities Act (ADA) requirements;
  • Receive certain kinds of information without exceptions, like the voting record of public officials, and other information;
  • Receive a written itemized statement of estimated charges, when charges will exceed $40, in advance of work being started and opportunity to modify the request in response to the itemized statement;
  • Choose whether to inspect the requested information (most often at no charge), receive copies of the information or both;
  • A waiver or reduction of charges if the governmental body determines that access to the information primarily benefits the general public;
  • Receive a copy of the communication from the governmental body asking the Office of the Attorney General for a ruling on whether the information can be withheld under one of the accepted exceptions, or if the communication discloses the requested information, a redacted copy;
  • Lodge a written complaint about overcharges for public information with the Office of the Attorney General. Complaints of other possible violations may be filed with the county or district attorney of the county where the governmental body, other than a state agency, is located. If the complaint is against the county or district attorney, the complaint must be filed with the Office of the Attorney General.

Responsibilities of Governmental Bodies

All governmental bodies responding to information requests have the responsibility to:

  • Establish reasonable procedures for inspecting or copying public information and inform requestors of these procedures;
  • Treat all requestors uniformly and shall give to the requestor all reasonable comfort and facility, including accommodation in accordance with ADA requirements;
  • Be informed about open records laws and educate employees on the requirements of those laws;
  • Inform requestors of the estimated charges greater than $40 and any changes in the estimates above 20 percent of the original estimate, and confirm that the requestor accepts the charges, or has amended the request, in writing before finalizing the request;
  • Inform the requestor if the information cannot be provided promptly and set a date and time to provide it within a reasonable time;
  • Request a ruling from the Office of the Attorney General regarding any information the governmental body wishes to withhold, and send a copy of the request for ruling, or a redacted copy, to the requestor;
  • Segregate public information from information that may be withheld and provide that public information promptly;
  • Make a good faith attempt to inform third parties when their proprietary information is being requested from the governmental body;
  • Respond in writing to all written communications from the Office of the Attorney General regarding charges for the information and complaints about violations of the Act.

Procedures to Request Information

  1. Submit a request by mail, fax, email or in person according to a governmental body’s reasonable procedures.
  2. Include enough description and detail about the information requested to enable the governmental body to accurately identify and locate the information requested.
  3. Cooperate with the governmental body’s reasonable efforts to clarify the type or amount of information requested.

A. Information to be released

  • You may review it promptly, and if it cannot be produced within 10 working days the public information officer will notify you in writing of the reasonable date and time when it will be available.
  • Keep all appointments to inspect records and to pick up copies. Failure to keep appointments may result in losing the opportunity to inspect the information at the time requested.

B. Cost of Records

  • You must respond to any written estimate of charges within 10 days of the date the governmental body sent it or the request is considered automatically withdrawn.
  • If estimated costs exceed $100.00 (or $50.00 if a governmental body has fewer than 16 full time employees) the governmental body may require a bond, prepayment or deposit.
  • You may ask the governmental body to determine whether providing the information primarily benefits the general public, resulting in a waiver or reduction of charges.
  • Make a timely payment for all mutually agreed charges. A governmental body can demand payment of overdue balances exceeding $100.00, or obtain a security deposit, before processing additional requests from you.

C. Information that may be withheld due to an exception

  • By the 10th business day after a governmental body receives your written request, a governmental body must:
    1. Request an Attorney General opinion and state which exceptions apply;
    2. Notify the requestor of the referral to the Attorney General; and
    3. Notify third parties if the request involves their proprietary information.
  • Failure to request an Attorney General opinion and notify the requestor within 10 business days will result in a presumption that the information is open unless there is a compelling reason to withhold it.
  • Requestors may send a letter to the Attorney General arguing for release, and may review arguments made by the governmental body. If the arguments disclose the requested information, the requestor may obtain a redacted copy.
  • The Attorney General must issue a decision no later than the 45th working day from the day after the attorney general received the request for a decision. The attorney general may request an additional 10 working day extension.
  • Governmental bodies may not ask the Attorney General to “reconsider” an opinion.

 

For more information contact: AgencyCounsel@tdi.texas.gov

 

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.

Martindale AVtexas[2]

The Statutory Basis for Declaratory Judgment Actions in Texas Lawsuits

 

  1. State: Uniform Declaratory Judgment Act, Tex. Civ. Prac. & Rem. Code Ch. 37
  • 37.004 provides:

(A) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status, or other legal relations there under.

(B) A contract may be construed either before or after there has been a breach.

  • 37.002 provides that the chapter is remedial: “It’s purpose is to settle and to afford relief from uncertainty and in security with respect to rights, status, and other legal relations; and it is to be legally construed and administered.” The Act does not create or enlarge jurisdiction. E.g., Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996). Pursuant to §37.003, a declaration may be either affirmative or negative in form and effect. Thus, an insured can seek an affirmative finding of coverage, or an insurer can seek a negative determination that coverage does not exist. However, each party must still plead for relief and carry its own burden of proof. See, e.g., City of Galveston v. Giles, 902 S.W.2d 167 (Tex. App.–Houston [1st Dist.] 1995, no writ); Employers Cas. Co. v. Tilley, 484 S.W.2d 802, 806 (Tex. Civ. App.–Beaumont 1972), aff’d other grounds, 496 S.W.2d 552 (Tex. 1973) (court had no authority to order declaration against insurer in response to insured’s motion for summary judgment on insurer’s claims); Indigo Oil, Inc. v. Wiser Oil Co., 1998 TEX. APP. LEXIS 7550 (Tex. App.–Dallas 1998, pet. denied) (failure to satisfy burden is not finding of proof of opposite).
  • 37.008 provides that the court may refuse to render a declaratory judgment if the judgment would not terminate the uncertainty or controversy giving rise to the proceeding.
  1. Federal: Declaratory Judgment Act, 28 U.S.C. §§2201-2202
  • 2201. Creation of remedy

(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

* * *

  • 2202. Further relief

Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.

 

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.

Martindale AVtexas[2]

TDI Prosecutor Named for Tarrant County, Texas Insurance Fraud Claims

Specialized Expertise with Investigating, Prosecuting Insurance Fraud

AUSTIN – The Texas Department of Insurance (TDI) announced William “Doug” Wallace as a fraud prosecutor who will work exclusively with criminal prosecutors in the Tarrant County District Attorney’s Office to combat insurance fraud.

Wallace has two decades of insurance industry experience and has focused much of his professional career on special investigations and fraud as well as insurance defense, coverage and subrogation. He spent four years at Nationwide Insurance Trial Division and also served as general counsel of US Lloyds Insurance Company. He is a 2005 graduate of the University of Oklahoma College of Law. Before attending law school, Wallace spent 12 years in the insurance industry as a claims adjuster, supervisor, manager, and litigation manager.

TDI partners with district attorneys in Dallas, Harris, Tarrant and Bexar counties to provide expertise in the investigation and prosecution of insurance fraud.

 

For more information contact: MediaRelations@tdi.texas.gov

 

 

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.

Martindale AVtexas[2]