Torts Case Law in Texas

NEGLIGENCE:

1. DUTY:
2. • Van Horn v. Chambers, 970 S.W.2d 542 (Tex., July 3, 1998): The Court held that a physician had no duty of reasonable care to third persons to correctly diagnose and treat a patient that could give rise to liability for harm inflicted by the patient upon third persons.
   • Praesel v. Johnson, 967 S.W.2d 391 (Tex., April 14, 1998): The Court held that a physician does not owe a duty to third parties to warn an epileptic patient not to drive or to report the patient's condition to the state authorities who administer the issuance of drivers' licenses.
   • Baptist Memorial Hosp. System v. Sampson, 969 S.W.2d 945 (Tex., May 21, 1998): The Court held that in order to establish a hospital's liability for the malpractice of an independent contractor emergency room physician based on an apparent or ostensible agency theory, a plaintiff must be able to show (1) that he had a reasonable belief that the physician was the agent or employee of the hospital, (2) such belief was generated by the hospital affirmatively holding out the physician as its agent or employee or knowingly permitting the physician to hold himself out as its agent or employee, and (3) the patient justifiably relied upon the representation of authority. The court refused to impose a nondelegable duty on Texas hospitals for the malpractice of independent contractor emergency room physicians.
   • Edward D. Jones & Co. v. Fletcher, _____ S.W.2d _____, 41 Tex. Sup. Ct. J. 744 (Tex., May 8, 1998) (not yet reported): The Court held that a stockbroker does not have a legal duty to ascertain the mental capacity of an elderly person before assisting her in transferring stock, reasoning that the law already affords protection to incompetents through guardianships and by making their agreements voidable.
   • Bohatch v. Butler & Binion, _____ S.W.2d _____, 41 Tex. Sup. Ct. J. 308 (Tex., January 22, 1998) (not yet reported): The court held that a law partnership had no tort duty not to expel one of its partners for reporting suspected over-billing by another partner, reasoning that the fiduciary duty that partners owe one another does not include a duty to remain partners or else answer in tort damages.
   • Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354 (Tex., February 13, 1998): The court held that where an employer required an independent contractor to observe general work place safety guidelines, the employer did not have an unqualified duty of care to insure that employees of the independent contractor did nothing unsafe. However, the employer owed the independent contractor's employees a duty that any safety requirements and procedures it promulgated did not unreasonably increase, rather than decrease, the probability and severity of injury. The court stated that the scope of the employer's duty was limited to the scope of its retained supervisory control over the independent contractor.
3. STATUTORY VIOLATION:
4. • Perry v. S.N., _____ S.W.2d _____, 41 Tex. Sup. Ct. J. 1162 (Tex., July 3, 1998) (not yet reported): The Court held that the plaintiffs could not maintain a cause of action for negligence per se based upon a provision of the Texas Family Code, which requires any person having cause to believe a child is being abused to report the abuse to state authorities and makes the knowing failure to do so a misdemeanor. Because the plaintiffs did not preserve their common law negligence claims, the Court did not decide whether there is a common law duty to report child abuse in some circumstances.
5. SPOLIATION OF EVIDENCE:
6. • Trevino v. Ortega, 969 S.W.2d 950 (Tex., June 5, 1998): The Texas Supreme Court refused to recognize an independent cause of action for intentional or negligent spoliation of evidence by parties to litigation, holding that spoliation does not give rise to independent damages and that it is better remedied within the lawsuit affected by the spoliation.
7. ECONOMIC LOSS:
8. • Indelco, Inc. v. Hanson Industries North America--Grove Worldwide, 967 S.W.2d 931 (Tex. App. - Houston [14th Dist.] April 23, 1998, review denied): The court held that there is no cause of action for negligence to recover economic losses caused by a defective product which damages itself. Such damages are only recoverable through a contract cause of action.
9. GROSS NEGLIGENCE:
10. • Mobil Oil Corp. v. Ellender, 968 S.W.2d 917 (Tex., May 8, 1998): The Texas Supreme Court held that there was legally sufficient evidence to support a finding of gross negligence on the part of the defendant for failing to warn contract workers about benzene exposure at its plant or to protect them from the exposure. The evidence reflected that although the defendant had a policy and program in place to protect and monitor its own employees, it chose not to do so for contract workers despite the fact that the defendant was aware of the extreme risk which benzene exposure involves.

PREMISES LIABILITY:

• Timberwalk Apartments, Partners, Inc. v. Cain, _____ S.W.2d _____, 41 Tex. Sup. Ct. J. 1138 (Tex., July 3, 1998) (not yet reported): In a suit brought by an apartment tenant alleging that her landlord failed to provide adequate security against criminal conduct on the premises, the Court held that a duty exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. The Court stated that in determining whether certain criminal conduct should have been foreseen, courts should consider whether any criminal conduct previously occurred on or near the property, how recently it occurred, how often it occurred, how similar the conduct was to the conduct on the property, and what publicity was given the occurrences to indicate that the landlord knew or should have known about them. Where the evidence established that no violent personal crime had occurred at the apartment complex for ten years preceding the plaintiff's sexual assault, that only one sexual assault had occurred within a one-mile radius of the complex within the year preceding the plaintiff's assault, and that none of the six assault-type crimes which occurred in a neighboring apartment complex during the same year was ever reported in the media, the Court held that the risk that a tenant would be sexually assaulted was not foreseeable as a matter of law.
• Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex., May 8, 1998): The court held that when circumstantial evidence is relied upon to prove that an unreasonably dangerous condition has existed on the premises long enough to charge a proprietor with constructive notice of the condition, such evidence must establish that it is more likely than not that the dangerous condition existed long enough to give the proprietor a reasonable opportunity to discover the condition. Circumstantial evidence which only shows a possibility that the dangerous condition existed long enough to charge the proprietor with notice is insufficient.
• Coleman v. Equitable Real Estate Investment Management, Inc., _____ S.W.2d _____, 1998 WL 142843 (Tex. App. - Dallas, March 31, 1998, review denied): The court held that the lessor and manager of a shopping center owed no duty to the employees of a tenant to protect them against criminal acts by third parties which occurred inside the leased premises where the defendants did not have any right to control security inside the leased premises.
• McIntosh v. NationsBank, 963 S.W.2d 543 (Tex. App. - Houston [14th Dist.] August 14, 1997, review denied): The court affirmed a summary judgment in favor of a bank in a suit brought by a customer who was robbed after cashing a check at a "drive thru" banking window when an unknown person forced his way into the plaintiff's vehicle. The bank offered unchallenged evidence of a lack of criminal activity on or near the bank premises, which negated foreseeability, and the plaintiff's only argument was that the lack of security measures itself made criminal activity foreseeable. The court refused to hold that criminal activity is automatically foreseeable and that a duty exists to provide security measures wherever security is lacking.

INTENTIONAL TORTS:

• Wal-Mart Stores, Inc. v. Resendez, 962 S.W.2d 539 (Tex., February 13, 1998): The Court held that a ten-to-fifteen minute detention of a store customer for suspected shoplifting was not unreasonable as a matter of law and, therefore, that a storekeeper was not liable to her for false imprisonment. The court applied the "shopkeeper's privilege," Tex. Civ. Prac. & Rem. Code § 124.001, which expressly grants a store employee the authority of law to detain a customer to investigate the ownership of property in a reasonable manner and for a reasonable period of time if the employee has a reasonable belief that the customer has stolen or is attempting to steal store merchandise.

DEFAMATION:

• Garcia v. Burris, 961 S.W.2d 603 (Tex. App. - San Antonio, December 24, 1997, review denied): The court held that a statement made in an employment evaluation of a bank employee, that the bank had received a complaint threatening legal action for the employee's violating of the Fair Debt Collection Practices Act, was protected by a qualified privilege, even though the bank did not reprimand the employee when the complaint was received, where the bank president prepared the evaluation pursuant to his duties, the evaluation was distributed to the employee's direct supervisor, and there was no evidence that the statement was made with a serious doubt as to its truth.

PRODUCTS LIABILITY:

• Hyundai Motor Co. v. Alvarado, _____ S.W.2d _____, 41 Tex. Sup. Ct. J. 947 (Tex., June 5, 1998) (not yet reported): The Court held that the National Traffic and Motor Vehicle Safety Act and its implementing regulations did not preempt the plaintiff's common law claims asserting that a vehicle's passenger restraint system was defectively designed because the manufacturer failed to install lap belts.
• Worthy v. Collagen Corp., 967 S.W.2d 360 (Tex., February 13, 1998): The Court held that the plaintiff's action brought against a manufacturer under the Texas Deceptive Trade Practices Act for damages resulting from the injection into her body of a collagen implant material was preempted by the Medical Device Amendments of 1976 to the federal Food Drug and Cosmetic Act, where the collagen material was a Class III medical device under the Act and had received premarketing approval from the federal Food and Drug Administration. The court observed that in order to prevail on her claim, the plaintiff would have to prove that the collagen material as approved by the FDA was not safe, which would conflict with the FDA's requirements.
• Sauder Custom Fabrication, Inc. v. Boyd, 967 S.W.2d 349 (Tex., February 13, 1998): The Court held that whether the risk of using a product is obvious must be determined from the perspective of an average user of the product, rather than from the perspective of an average person, for purposes of determining whether the manufacturer can be held liable for failing to warn or instruct regarding the product's risks. The court adopted the view of the Restatement (3rd) of Torts: Products Liability § 2, cmt. j., that a product seller is not subject to liability for failing to warn or instruct regarding risks and risk avoidance measures that should be obvious to, or generally known by, foreseeable product users.
• General Motors Corp. v. Brewer, 959 S.W.2d 187 (Tex., January 22, 1998): The Texas Supreme Court held that the plaintiff car owners had failed to raise a fact issue about the fitness of their cars' restraint system for the ordinary purposes for which it is used, concluding that the owners' assertions regarding the necessity of detaching and reattaching their seatbelts when exiting and entering the vehicles did not amount to a claim that the system was unfit for its ordinary purposes, within the meaning of Section 2.314(b)(3) of the Uniform Commercial Code. The court stated that a product that performs its ordinary function adequately does not breach an implied warranty of merchantability merely because it does not function as well as the buyer would like, or even as well as it could.

MEDICAL MALPRACTICE:

• Jones v. Miller, 954 S.W.2d 159 (Tex. App. - Houston [14th Dist.] January 22, 1998, review requested): The court held that the absolute two-year statute of limitations for medical malpractice claims was not tolled by the plaintiff's alleged mental incompetency.
• Savage v. Psychiatric Institute of Bedford, Inc., 965 S.W.2d 745 (Tex. App. - Fort Worth, March 19, 1998, review denied): The court held that the absolute two-year statute of limitations found in the Texas Medical Liability and Insurance Improvement Act, which governs all health care liability claims, applied both to the plaintiff's psychiatric malpractice claims and to her fraud claim, and that she was not entitled to rely upon the doctrine of fraudulent concealment to extend limitations. The court stated that because all of the plaintiff's claims arose from the care she received while she was a patient at the defendant's facility, her claims were classified as health care liability claims for which an absolute two-year statute of limitations applies.
• Martin v. Catterson, _____ S.W.2d _____, 1998 WL 177345 (Tex. App. - Houston [1st Dist.] April 16, 1998, review requested): The court held that the Texas open courts provision, Tex. Const. art. I § 16, applied to extend the running of limitations until the plaintiff had a reasonable opportunity to learn of his cancer and that the cancer probably existed while the defendants were treating him; and that the patient's death (at which time his claims were transformed from common law claims to statutory wrongful death and survival claims to which the open courts doctrine does not apply) did not cause the plaintiff to lose the protection of the open courts provision.