Job Interview.jpgIf you are an employer in Texas, in some instances, you have a duty to properly hire, train, supervise and retain competent employees. If you breach that duty, you can be found liable to persons who are injured from your actions. Claims against an employer for negligent hiring are based on the direct liability of the employer and not the vicarious liability of the employer for the acts of the employee. The main advantage of a negligent hiring claim is that it does not require a finding that the employee was acting in the coarse and scope of his employment when the injury occurred. Instead the employer is liable if its negligence in hiring, supervising, training or retaining the unfit employee was a proximate cause of the plaintiff’s injury.

To prove a cause of action for negligent hiring it must be shown that the employer owed the plaintiff a legal duty to hire, supervise, train or retain competent employees and that the breach of that duty was the proximate cause of the injury to the plaintiff.

An employer has a duty to use ordinary care in determining whether a prospective employee should be hired. This duty requires the employer to make an inquiry into the competence and qualifications of the prospective employee and may require the employer to look into the employee’s criminal background. However, criminal background checks are not required for every employee. The need for a criminal background check largely depends on the nature of the job the employee is hired to do.

Lien.jpgIn order to prevent persons from asserting false liens or claims against real or personal property, the Texas Legislature enacted Chapter 12 of the Texas Civil Practices and Remedies Code.

Under Chapter 12, a person may not make, present, or use a document or other record with:

  • knowledge that the document or other record is a fraudulent court record or a fraudulent lien or claim against real or personal property or an interest in real or personal property;

rear_end_collision.jpgIf you are the owner of a motor vehicle in certain circumstances you can be held liable for allowing someone else to operate your vehicle. Even if there is no alcohol involved, motor vehicle owners can be held responsible if they allow an unlicensed or habitually bad driver to operate their vehicle. This is known as liability for negligently entrusting a motor vehicle to another person.

To prove a claim for negligently entrusting a motor vehicle to another, the plaintiff must establish the following:

1. The owner allowed the vehicle to be operated by the person;

Rottweilers-9.jpgThe National Center for Injury Prevention and Control estimates that there are over 4.5 million dog bites in the United States every year. Insurance company estimates indicate that dog bites cost insurance companies over $400 million in clams each year. If you own a dangerous domesticated animal you may be strictly liable if that animal causes injury to a person or even another animal. Strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of fault. A domesticated animal is any animal (i.e. dog, cat, pig, horse, etc.) that is by custom devoted to the service of mankind at the time and place it is kept.

To prove a cause of action for injury by a dangerous domesticated animal, the plaintiff must show that:

1. The defendant owned or possessed the animal;

Slip and Fall.jpgTexas property owners can be held liable for injuries to persons who enter upon their property. This is known as premises liability. The most common premises liability claims involve slip and falls, dog attacks, electrocution, chemical exposure, or injury caused by disrepair of the property. Basically, a premises liability claim is a specific type of negligence action brought as the result of alleged injuries caused by a condition of real property. In order to be liable for a premises defect claim, the responsible party must qualify as a possessor of the premises who was in control of the premises where the injury occurred. The responsible party need not own title to the land in question; occupiers entitled to exercise exclusive control over the premises, such as tenants and lessees or general contractors, are under the same duty as owners to keep the property in a safe condition.

Unlike some other states, Texas still maintains a legal distinction between status as an invitee, licensee, or trespasser. It is the determination of this status that controls the scope of a defendant’s duty owed in a premises liability case.

A plaintiff’s status is that of invitee if the plaintiff enters onto the real property with the owner’s express or implied knowledge and for the parties’ mutual benefit.

Doctor.jpgCharges for health care, once based on the provider’s costs and profit margin, have more recently been driven by government regulation and negotiations with private insurers. A two-tiered structure has evolved: ” list” or ” full” rates sometimes charged to uninsured patients, but frequently uncollected, and reimbursement rates for patients covered by government and private insurance. Few patients today ever pay a hospital’s full charges, due to the prevalence of Medicare, Medicaid, HMOs, and private insurers who pay discounted rates. Hospitals, like health care providers in general, feel financial pressure to set their “full” charges as high as possible, because the higher the “full” charge the greater the reimbursement amount the hospital receives since reimbursement rates are often set as a percentage of the hospital’s “full” charge. Although reimbursement rates have been determined to be reasonable under Medicare or other programs, or have been reached by agreements between willing providers and willing insurers, providers nevertheless maintain that “list” rates are also reasonable. Providers commonly bill insured patients at “list” rates, with reductions to reimbursement rates shown separately as adjustments or credits. Portions of bills showing only list charges are often admitted in evidence in court proceedings, with proof of the reasonableness of the charges coming from testimony by the provider. Against this backdrop of health care pricing practices, the Texas Legislature enacted Section 41.0105 of the Texas Civil Practices and Remedies Code.

Section 41.0105, provides that, in addition to any other limitation under law, recovery of medical or health care expenses in a personal injury suit is limited to the amount actually paid or incurred by or on behalf of the claimant. In the recent opinion of Haygood v. De Escabedo, 356 S.W.3d 390 (Tex.2011), the Texas Supreme Court stated that Section 41.0105 is a limitation on the claimant’s recovery so that only evidence of recoverable medical expenses is admissible at trial. In other words, only evidence of expenses actually paid or incurred by the claimant can be presented to a jury and any determination of what was paid or incurred precedes any reduction for the claimant’s percentage of responsibility.

In Haygood, the Texas Supreme Court reasoned that although reimbursement rates have been determined to be reasonable under Medicare or other programs, or have been reached by agreements between willing providers and willing insurers, providers nevertheless maintain that list rates are also reasonable. The court stated that as a general principle, compensatory damages, like medical expenses, are intended to make the plaintiff whole for any losses resulting from the defendant’s interference with the plaintiff’s rights. But the collateral source rule is an exception to this principle. Long a part of the common law of Texas and other jurisdictions, the collateral source rule precludes any reduction in a tortfeasor’s liability because of benefits received by the plaintiff from someone else as a collateral source. For example, health insurance payments to or for a plaintiff are not credited to the damages awarded against the defendant because of the collateral source rule..

Family.jpgTexas recognizes several types of liability that may be imposed on family members for acts of other family members. A spouse can be liable for the acts of the other spouse when there is an agency relationship between the spouses or when a spouse incurs a debt for necessaries. With respect to children, as general rule, children are liable for their own actions. However, parents may be held liable for the acts of their children if:

  • There is an employer-employee relationship between the parent and the child;
  • The parent and child were engaged in a joint enterprise;

DTPA.jpgThe Texas Deceptive Trade Practices Act (DTPA) is codified in Chapter 17, Subchapter E of the Texas Business and Commerce Code. The purpose of the DTPA is to protect consumers from false, misleading or deceptive business practices, unconscionable actions or breaches of warranty.

To prevail in a claim brought under the Texas Deceptive Trade Practice Act, it must be established that:

1. The plaintiff is a consumer;

Swimmers.jpgIf you like to hunt, fish, swim or camp you might be surprised to know that Texas has passed a statue that protects private land owners who give permission to others to enter their property for such purposes. The statute is commonly known as the Texas Recreational Use Statute and can be found in Chapter 75 of the Texas Civil Practices and Remedies Code (RUS). Since its original enactment the scope of the RUS has been broadened to cover most activities associated with the enjoying of nature and the outdoors on private land.

The intent behind the RUS is to encourage landowners to allow the public to enjoy outdoor activities on their property. This intent is achieved by defining the applicable standard of care owed to recreational users of property as the duty not to injure them through gross negligence, malicious intent or bad faith. The RUS also places a limitation on the amount of damages that may be recovered from the landowner.

The elements of a cause of action under the RUS are the following:

Lien.jpgIf you hire a contractor and a dispute arises over payment, the contractor may have the right to assert a lien against your property to secure payment for his work. However, sometimes the lien asserted by the contractor may be invalid. If that is the case, Section 53.160 of the Texas Property Code governs the procedure for removal of such lien until it has been proven to be valid in a court of law.

Section 53.160 provides that, in a suit brought to foreclose a lien or to declare a lien invalid or unenforceable, a party objecting to the validity or enforceability of the lien may file a summary motion to remove the lien before a final trial on the merits is had in the suit. The motion must be verified and state the legal and factual basis for objecting to the validity or enforceability of the lien. The motion may be accompanied by supporting affidavits.

The grounds for objecting to the validity or enforceability of the lien are limited to the following: