INTENTIONAL TORTS:
Johnson v. Standard Fruit and Vegetable Co., Inc., _____ S.W.2d _____, 1997 WL 542322 (Tex. App. - Houston [1st Dist.] August 29, 1997, review requested): The court held that the evidence raised a fact issue, precluding a summary judgment, on a claim for intentional infliction of emotional distress brought by a marcher who witnessed an accident on the highway in which a tractor-trailer ran into the rear of the procession. The evidence was that the driver was speeding, that he was very tired and probably had fallen asleep at the wheel just before the accident, there was very little breaking prior to impact with a vehicle at the rear of the procession, the tractor-trailer continued up through the procession until it came to rest approximately two car lengths from the plaintiff, and the weather was clear, the sheriff's vehicle lights were flashing, and the accident occurred one mile from a hill. Although the plaintiff was not physically injured by the tractor-trailer, his post-traumatic stress disorder symptoms were aggravated as a result of the severe emotional distress he sustained as a result of witnessing the accident. Even though the driver's conduct was not intentionally directed at the plaintiff, the court held that the showing that the driver's conduct threatened the entire group of marchers was sufficient to show its intentional or reckless nature.
NEGLIGENCE:
ATTRACTIVE NUISANCE:
Texas Utilities Elec. Co. v. Timmons, 947 S.W.2d 191 (Tex., June 20, 1997): The Texas Supreme Court held that the mother of a fourteen-year-old boy who was killed when electricity arced from a live wire after the boy had climbed a utility tower could not recover from the utility on an attractive nuisance theory even if the boy did not know that he could be harmed by arcing electricity as well as by direct contact with a live wire. The evidence established that the boy was aware of the risks of being near electricity, based on a warning sign placed at the bottom of the tower by the utility, barbed wire barricades that were erected to prevent persons from climbing the tower, and verbal warnings from the boy's mother and his friends.
BYSTANDER RECOVERY:
United Services Auto. Ass'n v. Keith, 953 S.W.2d 365 (Tex. App. - Austin, July 3, 1997, review requested): The court held that a fact issue existed as to whether the plaintiff mother had a contemporaneous perception of an accident in which her daughter was fatally injured, precluding a summary judgment on the mother's claim as a bystander for damages under her uninsured/underinsured motorists policy, where the accident occurred while the mother was asleep but she was brought to the accident scene by an eyewitness to the accident and arrived there while the wrecked car was still smoking and a taillight was blinking.
EMPLOYER'S LIABILITY:
Robertson v. Church of God, International, _____ S.W.2d _____, 1997 WL 555626 (Tex. App. - Tyler, August 29, 1997) (not yet reported): The court affirmed a summary judgment in favor of a church in a suit brought against it by a massage therapist alleging negligent hiring and retention of a minister who sexually assaulted her during massage sessions. The court held that the evidence established that the church's alleged negligence in hiring and retaining a minister with a reputation for sexual indiscretions was not the cause in fact of the plaintiff's injuries where the minister visited the massage parlor for purely personal reasons. The fact that he discussed religion, his role as a minister and his beliefs, and invited the plaintiff to come to church was insufficient to establish a connection between the church's negligent hiring and the minister's assaultive conduct.
CRIMINAL CONDUCT OF THIRD PARTIES:
Hammerly Oaks, Inc. v. Edwards, _____ S.W.2d _____, 41 Tex. Sup. Ct. J. 187 (Tex., December 11, 1997) (not yet reported): In a suit for personal injuries brought by an apartment tenant, who was assaulted in a vacant apartment by persons who had been hired by the apartment as independent contractors to clean carpets, the court refused to hold as a matter of law that the failure to keep doors to a vacant apartment locked at all times under all circumstances is negligence per se. The court also held that the plaintiff's claim that the apartment owner breached its non-delegable duty to keep the premises safe for its tenants was a premises defect claim, which must be submitted to the jury under that theory, rather than a simple negligence claim.
Zezulka v. Thapar, _____ S.W.2d _____, 1997 WL 657133 (Tex. App. - Houston [1st Dist.] October 16, 1997) (not yet reported): The court reversed a summary judgment in favor of the defendant in a suit brought by the estate of a mental patient's stepfather, who had been killed by the patient, alleging that the defendant, a psychiatrist who had treated the patient, failed to warn of the risk posed by him to the stepfather. The court held that merely because the psychiatrist did not have a physician-patient relationship with the stepfather of the patient did not provide an affirmative defense where the stepfather's estate alleged that the psychiatrist knew of a specific threat posed by the patient and failed to warn the stepfather of that threat. The court pointed out that there is a statutory exception to the rules of confidentiality which allow a mental health care professional to disclose information where the professional determines that there is a probability of imminent physical injury by the patient to himself or others.
PREMISES LIABILITY:
Dallas Market Center Dev. Co. v. Liedeker, _____ S.W.2d _____, 41 Tex. Sup. Ct. J. 142 (Tex., December 4, 1997) (not yet reported): The Texas Supreme Court held that the owner of an elevator owes a duty of ordinary care to protect invitees from an unreasonable risk of harm due to the condition of the elevator rather than the high degree of care imposed on common carriers.
Guereque v. Thompson, 953 S.W.2d 458 (Tex. App. - El Paso, August 28, 1997, review requested): The court held that the owner of a trailer park which was adjacent to a canal lacked custody or control over the canal and, therefore, did not owe a duty to either prevent injuries resulting from the open and obvious hazard created by the canal, or to provide warnings that a hazard existed. Therefore, as a matter of law, the trailer park owner was not liable for the death of a child resident of the park who drowned in the canal.
LIQUOR LIABILITY:
Rodriguez v. Sabatino, 120 F.3d 589 (5th Cir., September 3, 1997): The court held that a security guard whose employer had assigned her to work at a party for which it had contracted to provide security services owed no duty under Texas law to the parents of auto passengers who were killed in an accident while riding with a minor who drank at the party and, after the party ended, at the host's home. There was no evidence that the guard's job required her to prevent underage drinking, and the guard did not even partially increase the danger that the minor would crash his truck, since the guard did nothing to facilitate underage drinking and the accident did not occur until almost four and a half hours after the minor left the party.
Pena v. Van, _____ S.W.2d _____, 1997 WL 476306 (Tex. App. - Houston [1st Dist.] August 21, 1997, review requested) (not yet reported): The court held that a genuine issue of material fact existed as to whether the actions of gang members, to whom a convenience store had sold alcohol even though the members were either underage or visibly intoxicated, in sexually assaulting and murdering victims who came across the gang during an initiation ceremony, were the foreseeable consequence of the allegedly negligent sale of alcohol, so that the store owner's actions could be considered to be the proximate cause of the victims' death.