In Baylor Scott & White v. Bostick, the Fifth Court reversed the trial court’s judgment due to errors in the jury charge regarding the definition of an invitee. The Court found that the trial court improperly included the “public invitee” component in the definition of an invitee, which is not recognized under Texas law. The correct definition, as established by the Texas Supreme Court, is that an invitee is “one who enters the property of another with the owner’s knowledge and for the mutual benefit of both,” with the requisite mutual benefit being a shared business or economic interest.

The Court went on to hold that the error in the jury charge was harmful because it related to a contested and critical issue—the plaintiff’s status as an invitee. The evidence was sharply conflicting on this point, and the improper definition let the jury find Bostick was an invitee based on the fact that he entered the hospital as a member of the public. No. 05-23-00606-CV, Dec. 6, 2024 (mem. op.).

A warehouse owner sued Rhino, a provider of waterproof roof coatings, for negligence for recommending an allegedly substandard contractor. The trial court rendered a substantial judgment for the owner and the Fifth Court affirmed in Rhino Linings Corp. v. 2×2 Partnership, Ltd.

Rhino argued that the negligence claim was foreclosed by a warranty that established “THE SOLE AND EXCLUSIVE AGREEMENT, REMEDY AT LAW OR IN EQUITY FOR DEFECTS IN MATERIAL SUPPLIED BY RHINO.” (The legal effect of CAPITALIZING CONTRACT TERMS I leave for another day.)

The Fifth Court disagreed, concluding that the owner’s claim did not involve “defects in material,” but rather “its reliance on Rhino’s knowing misrepresentation concerning Potter’s being qualified to apply Rhino’s products on 2X2’s roof, which led to 2X2’s hiring him.”

A participant in a parking-lot shootout was a licensee of the relevant business, rather than an invitee, on this record:

Despite Woodrum’s professed intention to purchase items at Walmart, there is no evidence that Woodrum made any purchases or even entered Walmart. Instead, the evidence shows Woodrum and Speights both arrived at the Walmart about the same time, confronted each other in the parking lot, and Speights shot Woodrum after a struggle over a gun. Thus, the record shows that, at the time of Woodrum’s injury, Woodrum had no business relationship with Walmart and was present in Walmart’s parking lot on business with Speights.

Woodrum v. Wal-Mart Stores Texas, LLC, No. 05-22-00561-CV (May 17, 2023) (mem. op.)

The plaintiff in Engler v. Ritz-Carlton sued a well-known Dallas hotel for, inter alia, premises liability, alleging that it should have done more to prevent an unfortunate burglary that occurred on the eve of a wedding.

The Fifth Court noted that “a premises owner owes a duty of care to protect invitees from third-party criminal acts if the owner knows or has reason to know of an unreasonable and foreseeable risk of harm to invitees,” and that such knowledge can be proven “through evidence of specific crimes on or near the premises.” But the plaintiff’s evidence lacked the necessary information about recency, frequency, and similarity to be probative:

[I]t covers a three-year time period, and it does not specify when during that period the other crimes occurred. It also does not prove the frequency of the other crimes because the paragraph actually describes the number of police calls for “alleged and/or actual” crimes, not the number of actual crimes that occurred. That is, the paragraph leaves us to speculate how many of the police calls involved actual crimes as opposed to false or mistaken reports. Finally, the paragraph does not give any details about the police calls arising from alleged “thefts and/or burglaries” to show that those incidents were similar to the incident made the basis of this suit. The umbrella terms “theft” and “burglary” could involve crimes (such as pickpocketing, vehicle break-ins, and thefts by hotel guests or employees) quite dissimilar from the room burglary involved in this case.”

No. 05-22-00067-CV (April 28, 2023) (mem. op.).

In the classic tort case of Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928), a foreseeable type of injury (equipment fell on a passenger waiting for a train) occurred through an unforeseeable chain of events (a dropped package contained fireworks, that exploded and caused a panic, which in turn caused the equipment to fall). The opinions in that case influence tort law to this day, both substantively, and as to the procedural issue of whether a judge or jury should resolve such questions.

In that tradition is the Fifth Court’s opinion in Cernak v. Studley, a suit about “the alleged negligent handling of a puppy.” The Court held that the foreseeability requirement of proximate cause was not established when “there is no evidence that [defendants’] should [have] reasonably anticipated that a third-party would leave the gate open and [defendant’s] father would open the back door to inadvertently facilitate Grayson’s escape out of the home and then the yard as [plaintiff] walked by on uneven terrain.” No. 05-22-00659-CV (April 26, 2023) (mem. op.).

The “anti-fracturing” rule is a powerful principle for professional-liability litigation in Texas. Under the rule, “Texas courts do not allow plaintiffs to convert what are really negligence claims into claims for fraud, breach of contract, breach of fiduciary duty, or violation of the DTPA.” But the rule is constrained by the facts, and the Fifth Court reversed a summary judgment when, inter alia, “[t]he focus of the breach of fiduciary duty claim was on conduct other than the preparation of the [financial statements] and beyond the duty of ordinary care owed to [the accounting firm’s clients] regarding the preparation of those documents.” Rivas v. Pitts, No. 05-21-00876-CV (April 25, 2023) (mem. op.).

In 2018, a mentally disturbed individual scaled the six-foot fence around an apartment complex and killed a resident. Wang v. TREA Churchill affirmed summary judgment for the defense, reviewing several aspects of what constitutes sufficient proof of foreseeability in this setting. No. 05-21-00880-CV (Oct. 24, 2022) (mem. op.).

In 1915, Albert Einstein published an article about the structure of spacetime as defined by general relativity. In 2022, the Fifth Court reviewed the structure of spacetime as defined by the “time-notice” rule for premises-liability cases, finding that rule unsatisfied with this proof:

Nicholson testified that she had been in the store “maybe a minute” before she fell. She testified that there was “a substance on the floor” that caused her to fall, but she did not know what the substance was “because it was clear. It didn’t have, like, a color to it. It was a clear substance on the floor.” She testified that she was not sure how large the substance was before she fell because after she fell, “it was on my clothing. Like, my clothing was wet, so I’m not sure how much was down on the floor.”’

Nicholson v. Wal-Mart Stores, Inc., No. 05-21-00110-CV (Sept. 7, 2022) (applying Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002)).

Gamble v. Anesthesiology Associates presented a tort claim, 2022-style, as follows:

• The accident. “Blain was also driving northbound on I-35 enroute to a business meeting in Oklahoma City for another Abeo client. During her drive, Richter called from his home in Kentucky to tell her he planned to announce his retirement to Anesthesiology Associates the next day. Blain answered the call on her hands-free Bluetooth device. She continued driving with her cruise control set at approximately eighty miles-per-hour while continuing the conversation. Blain hit and killed Gamble and the Good Samaritan. The accident investigation determined the collision occurred because of Blain’s inattentive driving while talking on the cellphone.
• Duty? “The critical fact in these cases [cited by Plaintiff] that is distinctly missing from the facts at hand is a passenger in close proximity distracting the driver. Here, the alleged distraction came from Richter’s phone call, which originated miles away in another state. Appellants have provided no Texas authority recognizing such an expansive duty. Until the Texas Supreme Court or the legislature indicates such a duty exists, we refuse to create one having such far-reaching implications for essentially all cellphone users anywhere in the world.” (emphasis added)

No. 05-20-01024-CV (July 21, 2022) (mem. op.).

Yedlapalli v. Jaldu, in rejecting sufficiency challenges to a judgment in an auto-collision case, summarizes the infrequently appealed but practically important case law about negligent driving. In particular (and contrary to what my Driver’s Ed teacher said in high school), the Fifth Court reminds:

With rear-end collisions, ‘standards of ordinary care cannot be fixed with any degree of certainty but must be left in large measure to the trier of the facts.’ … [T]he mere occurrence of a rear-end accident does not establish negligence as a matter of law. ‘And it is neither impossible nor automatically invalid for a jury to determine that neither driver in a rear-end accident committed negligence.’ … ‘A rear-end collision may be some evidence of negligence of the rear-ending driver, but it does not constitute conclusive proof.'” 

No. 05-20-00531-CV (June 28, 2022) (mem. op.) (citations omitted).

This is a cross-post from 600Hemphill, which follows the Texas Supreme Court:

Henry McCall lived in a cabin on Homer Hillis’s property, occasionally helping Hillis with maintenance at the McCall’s bed-and-breakfast. While working on Hillis’s sink, a brown recluse spider bit McCall. The Texas Supreme Court found that the ferae naturae doctrine barred McCall’s lawsuit against Hillis: “[H]e owed no duty to the invitee because he was unaware of the presence of brown recluse spiders on his property and he neither attracted the offending spider to his property nor reduced it to his possession. Further, [McCall] had actual knowledge of the presence of spiders on the property.” Hillis v. McCall, No. 18-1065 (Tex. March 13, 2020). In addition to its impact on brown-recluse litigation, the reasoning of this opinion about liability for small, dangerous creatures well be relevant in any future litigation about coronavirus exposure.

A law firm’s former client sued for allegedly flawed tax advice; part of the basis for personal jurisdiction in Texas was the presence of a firm partner at a meeting with the IRS in Dallas. As to that point, the Fifth Court held: “On this record, we conclude there is no evidence of a substantial connection between Wolfe’s attendance at the June 2010 Dallas meeting and the operative facts of the litigation, i.e., whether appellants breached their fiduciary duties owed to Millennium when they ‘represented Hanson’ during the appeal of the 2009 audit and ‘continued to take positions’ during the June 2010 Dallas meeting that were ‘adverse to Millennium’s interests’ respecting the disputed tax benefits . . . . Therefore, Wolfe’s attendance at that meeting does not constitute a contact supporting specific jurisdiction.” The opinion reviews and rejects other arguments for personal jurisdiction, many of which appear (in various forms) in similar cases involving professional advice and state lines. Fried Frank v. Millennium Chemicals, No. 05-16-01132-CV (July 31, 2017) (mem op.)

Does a limitation of liability provision include gross negligence claims?  This basic question of contract drafting finds surprisingly little answer in Texas authority.  A recent article by LTPC attorneys David Coale and Mallory Biblo summarizes the opinions and where the Dallas Court of Appeals falls.

After an automobile collision, the Gomez family sued Sol Ly for negligence. Ly was represented by the Herald law firm, which also employed attorney Tim Brandenburg. But while the suit was pending, Brandenburg left Herald to join the law firm of Domingo Garcia, which represented the plaintiffs. Based on the defendant’s oral objection, the trial court granted a mistrial and ordered the defendant to file a motion to disqualify, which was subsequently granted. The plaintiffs failed to obtain substitute counsel, and the case was dismissed for want of prosecution. The Court of Appeals affirmed. The plaintiffs’ pro se motion to reinstate the case following the dismissal challenged only the disqualification, and not the plaintiffs’ failure to appear at the new trial setting. Without a showing that the failure to appear was adequately justified, the Court of Appeals could not conclude that the trial court had abused its discretion in denying the motion to reinstate.

Gomez. v. Sol, No. 05-14-00893-CV

After a night of drinking in Uptown, Shawn Strumph was found by a jogger the next morning in a creekbed beneath a bridge owned by CC-Turtle Creek. Medical records contained several versions of how he ended up there, including assault, jumping, or simply falling. Shawn and his parents sued for dram shop and premises liability, but the trial court granted no-evidence summary judgment on the element of proximate cause. Because Shawn remembered nothing of how his injuries happened, and because there were no witnesses to the incident, the plaintiffs could not carry their burden under any theory of liability.

Stumph v. Dallas Lemmon West, Inc., No. 05-14-01044-CV

In this action for negligent appraisal, the Court of Appeals found that the two-year statute of limitations for negligence actions had not been tolled by the discovery rule because the homebuyer knew, before closing, of information indicating the value of the property was much less than what he had offered to pay for it.  Specifically, the appraiser had indicated that the house was worth $295,000 (or $10,000 less than what the plaintiff had offered to pay for it).  More importantly, Zillow.com showed that the property was $100,000 less than what the buyer had offered.  Despite these two indications that should cause a reasonable person to investigate further, the plaintiff did not bring suit until three years later, when he had hired another appraiser to provide an estimate of the property’s value and found out that the property was, in fact, worth much less than he had paid.

Bruning v. Hollowell

In this negligent hiring case, the plaintiff bought a truck that she later discovered had been stolen.  The Court of Appeals upheld the trial courts grant of summary judgment in favor of defendants because the economic loss rule barred recovery of economic damages based on a claim of negligent hiring.  Instead, such a claim requires proof of physical injury from the negligent hiring, which the plaintiff could not establish.

Clark v. PFPP L.P.

In this car accident case, the defendant moved for summary judgment on statute of limitations grounds.  While the plaintiff claimed that a typo in the original petition precluded the process server from locating the defendant before the limitations period expired, the Court of Appeals found that the plaintiff had no explanation for the delay in serving the defendant because the defendant’s correct address, telephone number, driver’s license number, and license plane number were available in the police report describing the accident that is the basis for the lawsuit.

Quezada v. Fulton

Several months before the decedent died, he had his attorney prepare an amendment to a trust he had created that would have increased the distributions to his two children.  The attorney drafted the amendment, but the decedent never signed it.  Acting in their capacity as personal representatives for their father’s estate, the children sued the attorney for negligence.  The attorney moved for summary judgment, which the trial court granted based on its finding that the attorney owed no duty to them.

The children appealed, and the Dallas Court of Appeals affirmed, holding that “an attorney owes a duty of care only to his or her client, not to third parties who may have been damaged by the attorney’s negligent representation of the client.”

Donaldson v. Mincey

Although medical malpractice usually isn’t this blog’s cup of tea, it is sometimes interesting to see just how broadly the courts will apply the expert report requirement for health care liability claims contained in Chapter 74 of the Civil Practice & Remedies Code. In this case, we learn that a case against a hospital will not be dismissed for failure to file an expert report when the claim is for a slip-and-fall injury. The Court of Appeals distinguished between claims that have an indirect relationship with health care (which require an expert report) and those that are “completely untethered” from health care. Slipping and falling on a wet floor in a hallway, the Court holds, has nothing to do with health care, and so the trial court correctly denied the hospital’s motion to dismiss.

Methodist Hosps. of Dallas v. Searcy, No. 05-14-00375-CV

An investor sought to have its shares in a hedge fund redeemed, but the hedge fund made a complex maneuver under Bermuda laws that resulted in the investor receiving less than it anticipated from the redemption.  The investor sued the hedge fund, asserting numerous claims, including a negligence claim.  The trial court granted summary judgment, and the investor appealed.  Addressing the investor’s negligence claim, the Court of Appeals affirmed the trial court’s decision, holding that the hedge fund manager did not owe a duty to the investor.

Mary E. Bivins Found. v. Highland Capital Mgmt., LP

In what appears to be only the third opinion in the state reviewing a motion to dismiss under Texas Rule of Civil Procedure 91a, the Dallas Court of Appeals has affirmed a trial court’s order that granted in part and denied in part a motion to dismiss on the pleadings. Similar to Federal Rule of Civil Procedure 12(b)(6), Rule 91a allows a party to move to dismiss a cause of action “on the grounds that it has no basis in law or fact,” based solely on the claimant’s pleadings. In this case, the plaintiffs sued the City of Dallas after emergency services failed to respond to a 911 call reporting their son’s drug overdose. The plaintiffs attempted to plead their way around governmental immunity by claiming the City had negligently used or misused the 911 system’s telephone and computer systems. The Court affirmed dismissal of negligence claims that the City had failed to properly respond to the 911 call, but also affirmed the denial of the motion as to claims that the equipment itself had failed or malfunctioned.

City of Dallas v. Sanchez, No. 05-13-01651-CV

For the second time this month, the Court of Appeals has decided that Oncor Electric Delivery Company was not responsible for causing a fire that damaged a plaintiff’s property. In this instance, Schepp’s Dairy alleged that Oncor’s negligence led to a fire starting with a transformer at Schepp’s facility. At trial, three different electrical engineering experts variously testified that the fire was caused on either Schepp’s side or Oncor’s side of the transformer. The jury specifically rejected the conclusions of two of those experts, leaving only one expert for Schepp’s. In a highly fact-specific opinion, the Court of Appeals held that the last expert’s opinion was unreliable. Among other problems, the witness had failed to exclude other possible causes of the fire, and he had only testified as to Oncor’s negligent maintenance of the transformer without opining as to what was the direct cause of the fire. Without that testimony, Schepp’s had no evidence of causation, and the judgment against Schepp’s was therefore reversed.

Oncor Elec. Deliv. Co. LLC v. So. Foods Gp. LLC, No. 05-12-01223-CV

An architectural firm subcontracted with Pavecon Commercial Concrete to pour the foundation for a wedding facility in Carrollton. The architect failed to pay the last of Pavecon’s invoices, prompting Pavecon to sue the architect and the owner of the facility. The defendants counterclaimed for breach of contract and negligence, alleging that the concrete services had been performed improperly. Pavecon moved for summary judgment on the counterclaims. The trial court granted the motion and the Court of Appeals affirmed, holding that the architect had failed to submit admissible evidence of any specific pecuniary loss and that the negligence claims were barred by the economic loss doctrine. Justice Moseley dissented in part, arguing that the trial court should not have sustained Pavecon’s objection that the defendants’ summary judgment affidavit was conclusory in averring their damages.

Trebuchet Siege Corp. v. Pavecon Commercial Concrete Ltd., No. 05-12-00945-CV

Trebuchet Siege Corp. v. Pavecon Commercial Concrete Ltd. (dissent)

In this commercial paper case, Jason Kang signed several checks made out to various businesses and drawn on the bank account of his business, Ever Construction.  Unfortunately, the checks ended up the hands of wrongdoer Kwan Sup Choi, who was not the named payee on the checks but took and cashed them at Lee’s Check Cashing.  When Kang found out that his intended payees did not receive their money, Lee’s Check Cashing was forced to bear the loss and pay them.

Lee’s, however, blamed Kang for the forgery and sued him and Ever Construction under theories of negligence and fraud.  After a bench trial, the trial court awarded judgment in favor of Lee’s, and Kang and Ever Construction appealed.  The Court of Appeals reversed, holding, among other things, that Kang and Ever Construction had no duty to ensure that the checks it wrote were only presented to third parties for payment by persons who were authorized to cash them.

Ever Constr. Corp. v. Su

Last November, the Texas Supreme Court reversed and remanded for further consideration in a case where the Dallas Court of Appeals had concluded that the plaintiff had sufficiently pleaded a waiver of sovereign immunity through the use of tangible property. The Supreme Court held that the plaintiff had not alleged a “use” of property for a whiteboard that fell on his head, because Dallas Metrocare had only made the board available for use by patients. On remand, the Court of Appeals had to consider the alternative question of whether the plaintiff’s claims alleged injury through a “condition” of property. The Court concluded that he had pleaded such a claim, based on the allegation that the whiteboard was in an unsafe condition because it was not properly secured. The case was therefore remanded to the trial court for further proceedings.

Dallas Metrocare Servs. v. Juarez, No. 05-11-01144-CV

This negligence lawsuit arises from a prior medical malpractice lawsuit in which Darwin Flores sued his doctor for causing him to suffer monocular vision.  This doctor hired appellees, an investigative firm, to surreptitiously record Flores to show the true extent of his injury.  On the videotape, the defendants mistakenly included video of a man rollerblading (who they determined was not Flores), and informed the doctor’s counsel that it was in fact not the plaintiff.  Flores lost his malpractice trial (though it’s unclear whether the rollerblading videotape was played or had anything to do with the loss).  Nevertheless, he followed up by suing the investigators for creating a “misleading perception” of him.  He is seeking $1 billion dollars in damages.

On appeal, the Court rejected Flores’ argument that a “private detective who conducts surveillance on an adversary owes his adversary a duty to refrain from circulating work product that the private detective knows can be used as fake evidence.”  Instead, the Court pointed out the undisputed fact that there was no relationship between appellees and Flores, let alone one that would impose a duty of care.

Flores v. Intelligence Servs. of Tex., Inc.

The Court of Appeals has reversed and rendered a trial court judgment in favor of the victim of a serious softball injury. Coleman and Dunagan were teammates on a slow-pitch softball team, but Coleman also had experience as a high school baseball player. While warming up to pitch the first game of the season, Coleman threw a couple of overhand curveballs to Dunagan at the catcher’s position, followed by an overhand fastball that smashed Dunagan in the mouth and caused significant injury. The jury returned a verdict in favor of the plaintiff on his claim for ordinary negligence, also finding that Coleman’s conduct had been reckless.

Citing its own precedent in Connell v. Payne, 814 S.W.2d 486 (Tex. App.–Dallas 1991, writ denied), the Court of Appeals held that a showing of mere negligence was insufficient for an injury occurring as a result of participation in a sports activity — instead, the defendant must have acted recklessly or intentionally. The Fourteenth Court of Appeals in Houston has adopted a nominally different standard for sports-related liability, holding that there is no negligence duty if the risk is one that is inherent to the sport, but that non-inherent risks are still subject to the duty of ordinary care. See Chrismon v. Brown, 246 S.W.3d 102 (Tex. App.–Houston [14th Dist.] 2007, no pet.).  However, the Court here did not view the two cases as establishing fundamentally different standards. Since being struck by a thrown ball is an inherent risk of the sport of softball, simple negligence alone could not justify a judgment for the plaintiff. And while the trial court had submitted the issue of recklessness to the jury, the Court of Appeals held that there was legally insufficient evidence to support that finding. As the Court noted, “inaccuracy is to be expected in every sport,” and nothing in the record showed that Coleman was aware his fastball created an unreasonable risk of harm that was substantially greater than mere negligence.

Given the novelty of the issue and the possibly different standards adopted by the intermediate appellate courts, this case could be a good candidate for review by the Texas Supreme Court. If the plaintiff takes it up to that Court, 600 Commerce will keep an eye on it.

Dunagan v. Coleman, No. 05-12-00171-CV

A roofer died after falling from the rooftop on one of his jobs.  His estate sued the general contractor for negligence, claiming that the general contractor maintained a duty to ensure the roofer operated with all proper safety equipment.  The Court of Appeals upheld the trial court’s grant of summary judgment in the general contractor’s favor because it found that the general contractor did not owe the roofer, a sub-contractor, a duty to ensure he performed his job safely.  According to the Court, “a general contractor’s duty of reasonable care is commensurate with the control it retains over the subcontractor.” Because the general contractor here did not maintain either contractual or actual control over how the roofer performed his job, it did not owe him any duty to ensure his safe work habits.

Gonzalez v. VATR Construction

PAM Transport’s truck driver, James Herdo, allegedly backed into one of Stevens Transport’s semi-tractors.  Stevens sued PAM for negligence because it claimed Herdo failed to keep a proper “lookout” when he was backing the truck up.  The trial court found that Stevens had established that Herdo’s negligence proximately caused the collision and granted Stevens’ motion for summary judgment.  The Court of Appeals disagreed, holding that the mere occurrence of an accident does not establish negligence.  Instead, Stevens had to prove conclusively that Herdo’s failure to keep a lookout proximately caused the accident, not simply that Herdo backed into Steven’s tractor.

PAM v. Stevens

Van Voris was taking an aikido course at Chop Shop when he was injured during demonstration of a jiu-jitsu technique.  Van Voris sued Chop Shop for negligence and gross negligence.  Chop Shop moved for summary judgment based on its defense of pre-injury release from a one page “Release and Waiver of Liability and Indemnity Agreement.”  Chop Shop argued that the waiver barred the negligence claims, and that the gross negligence claim was inseparable from the negligence claim.

The court of appeals found that the one-page release met the fair notice requirements for purposes of releasing Chop Shop from liability for its own negligence.  The release was sufficiently conspicuous, and the language was specific and expressed the intent of exculpating Chop Shop. However, the court found that the waiver did not release the gross negligence claims and did not preclude proof of claims for negligence and actual damages.  The court pointed to Texas’s strong public policy prohibiting pre-injury releases of negligence, heightened concerns involving gross negligence and exemplary damages, and the distinct elements for proving negligence and gross negligence.  Thus, the court of appeals reversed the summary judgment against Van Voris regarding his gross negligence claims, and affirmed as to the negligence claims.

Van Voris v. Team Chop Shop, No. 05-11-01370-CV

In 2004, the Byers family hired Jered Custom Homes (“JCM”) to build their home.  Since Brad Byers worked for an engineering firm, he had his own company design the foundation. To protect itself, JCM included a provision in its contract with the Byerses that Brad Byers and his firm would be entirely responsible for the design and sufficiency of the foundation and that the Byerses would be responsible for all necessary soil and subsoil tests.  Two years later, the Byerses sold their home to appellant, Kay Yost.  Shortly after moving in, however, Yost noticed that the locks installed in the doors no longer fit.  Yost hired a series of inspectors, and ultimately concluded that the house’s foundation had suffered cracking caused by issues with its design with an estimated cost of repair of $524,563.  Yost sued JCM for damages associated with the house, but JCM moved for a no evidence summary judgment and the court granted it, ordering that Yost take nothing.

On appeal, the Court agreed with the trial judge’s decision.  Yost argued that the affidavits of her two experts provided sufficient evidence to survive summary judgment.  But the Court of Appeals found that nothing in the expert reports presented any evidence that JCM itself was negligent in constructing the house’s foundation in accordance with the design prepared by Byers’ employer.  Indeed, although Yost’s expert report stated that it is customary practice in the home construction industry for a geotechnical report to be obtained and reviewed, “he does not state who should review it or utilize its information.”  Nevertheless, the Court reversed the trial judge’s decision on Yost’s claim for breach of the implied warranty of habitability because Yost’s failure to produce documents evidencing that the how was not uninhabitable did not constitute a judicial admission.

Yost v. Jered Custom Homes

The court affirmed a summary judgment against the Poynors in their negligence suit. When shopping for a new car at a BMW dealership, the salesperson, Homer, took them for a test drive and negligently crashed the vehicle. The Poynors sued the North American BMW distributor and BMW’s U.S. holding company for various claims of negligence, including one claim for vicarious liability, contending that BMW was vicariously liable for the dealership’s negligence due to its agency relationship with the dealership. The trial court granted BMW’s summary judgment and the Poynors appealed.

On appeal, the court first noted that the contract between BMW and the dealership specifically disclaimed an agency relationship. The same contract, however, required the dealership to maintain certain standards that the Poynors argues amounted to “control” sufficient to create an agency relationship. Looking to the activity that caused the injury, the court observed that the contract did not provide BMW control over the test drive and, while BMW required the dealership to train its salespeople, BMW was not directly responsible for Homer’s training or supervision. Thus, BMW was entitled to summary judgment on these claims. Finding that BMW also owed no direct duty to train or supervise Homer, the court affirmed the judgment.

Poyner v. BMW, No. 05-10-00724-CV

Amid a flurry of post-summer break opinions today, the Texas Supreme Court issued one decision in a case from the Dallas Court of Appeals.  In U-Haul International, Inc. v. Waldrip, the court of appeals had reversed and rendered an $11.7 million award of exemplary damages, but left intact $21 million in compensatory damages.  The case arose out of an accident in which a truck with a damaged transmission and an inoperable parking brake rolled over the plaintiff as he was exiting the vehicle.  In its decision today, the Supreme Court reversed the trial court’s judgment even further, rendering judgment for the defendants on the plaintiff’s claims for gross negligence and remanding the negligence claims for a new trial.  The key error cited by the Supreme Court was the trial court’s admission of evidence concerning U-Haul’s safety practices in Canada, little of which had to do with faulty parking brakes or transmissions.  The Supreme Court held that the erroneous admission of that evidence probably caused the rendition of an improper judgment because, among other reasons, plaintiff’s counsel had advocated for its inclusion over the defendants’ objections.  Thus, the case was remanded to the trial court for a new trial on negligence. Justice Lehrmann dissented.

U-Haul International, Inc. v. Waldrip, No. 10-0781

In this certificate of merit case, the court affirmed the trial court’s denial of the defendant-architect’s motion to dismiss. After walking into a very clean glass wall in the lobby of a condominium complex, Zion sued the owners of the building and added claims against the architect, MSM, for negligently designing the wall. He included with his petition a certificate of merit, which was an affidavit authored by architect James R. Drebelbis, as required by § 150.002 of the Texas Civil Practice and Remedies Code. MSM filed a motion to dismiss, arguing the affidavit did not meet the requirements of § 150.002. The trial court denied MSM’s motion to dismiss.

On appeal, the court first held that a certificate of merit need not demonstrate the affiant’s practice in the same sub-specialty as the defendant. Drebelbis’s affidavit, which stated he was knowledgeable in the area of architecture, was therefore sufficient. Next, the court held that the certificate of merit need not state the applicable standard of care to satisfy the statute’s requirement that it allege a negligent action, error, or omission. Finally, the court held that the affidavit included a sufficient factual basis for Zion’s claims, as opposed to merely conclusory opinions, to meet the requirements of § 150.002. Thus, the affidavit was sufficient and the court affirmed the trial court’s order.

Morrison Seifert Murphy, Inc. v. Buck Zion, 05-11-00621-CV

The court today issued an opinion in a products liability indemnification case arising out of a helicopter crash in North Carolina.  The company that operated the helicopter sued the manufacturer of a defective gearbox after the operator settled with the estate of the deceased pilot for $2.5 million.  The gearbox maker had agreed to indemnify the operator for all losses, claims, and expenses arising out of any defective work.  The jury found that the negligence of both parties had been a proximate cause of the accident, but the trial court set aside that finding with respect to the gearbox manufacturer and rendered a take-nothing judgment on the operator’s indemnification claim.  The court of appeals affirmed, holding that there was sufficient evidence that the operator’s negligence caused the helicopter  to crash.  The court then accepted the manufacturer’s argument that the express negligence doctrine barred the operator’s indemnity claim because the indemnity agreement failed to state that it would require the manufacturer to indemnify against the operator’s own negligence.  Even though the manufacturer’s own negligence had been found to be a proximate cause of the crash, the operator could not recover against the manufacturer because the parties did not contract for proportionate indemnity.

American Eurocopter Corp. v. CJ Systems Aviation Group, No. 05-10-00342-CV