Responsible Third Party Via Mandamus

The Court of Appeals has reiterated that mandamus relief is available when the trial court erroneously denies a defendant’s motion for leave to designate a responsible third party. In this instance, the trial court had denied Greyhound’s attempt to join the owner of a crane truck that had been involved in a collision with a bus. The plaintiff was a passenger in the crane truck, and Greyhound alleged that the truck’s poor condition had proximately caused the accident. Following its own precedent of In re Oncor Elec. Delivery Co., 355 S.W.3d 304, 306 (Tex. App.—Dallas 2011, no pet.), the Court held that Greyhound had met its pleading requirements for naming the responsible third party, and that the improper denial of leave could not be adequately addressed by appeal. Permitting the case to be tried without the third party “would skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation of Relators’ defense in ways unlikely to be apparent in the appellate record.” The Court therefore conditionally granted mandamus.

In re Greyhound Lines, Inc., No. 05-13-01646-CV

Supreme Court Update: Proportionate Responsibility Trumps the Unlawful Acts Doctrine

Two years ago, the Dallas Court of Appeals held that the statutory “assumption of the risk” defense (CPRC § 93.001) superseded the common law “unlawful acts” doctrine, which provided that plaintiffs cannot recover damages if, at the time of injury, they were engaged in an illegal act that contributed to the injury. Gulf, C. & S.F. Ry. Co. v. Johnson, 9 S.W. 602, 603 (Tex. 1888). The unlawful acts doctrine is typically invoked in legal and medical malpractice cases. This morning, the Supreme Court decided the same case on different grounds, holding that the Proportionate Responsibility Act negates the common law doctrine and instead requires the finder of fact to apportion responsibility between the lawbreaking plaintiff (or, in this case, the decedent) and the defendant. The illegal activity in this instance was the consumption of marijuana and heroin, which led to the death of Joel Martinez, the son of plaintiff Mary Ann Arredondo. The mother sued the son’s friend, Geoffrey Dugger, who had failed to tell the paramedics that Martinez had snorted the heroin. Dugger initially escaped liability completely when the trial court granted summary judgment in his favor based on the unlawful acts doctrine. The Court of Appeals reversed, holding that § 93.001 superseded the common law doctrine, but did not apply under the facts of the case. On petition for review, the Supreme Court has now held that the Proportionate Responsibility Act applies even where the statutory assumption of the risk defense does not apply. Thus, a jury will have to apportion responsibility between the lawbreaking decedent and his partner in recreational drug consumption. However, the court expressly limited its holding to personal injury and wrongful death cases, leaving open the question of whether a client’s illegal acts will continue to serve as a complete bar to legal malpractice claims.

Dugger v. Arredondo, No. 11-0549