Firm Newsletter - March 2017

Photo by BrianAJackson/iStock / Getty Images

Photo by BrianAJackson/iStock / Getty Images

Protecting Against Criminal Activity and the Reasonableness Test 

In UDR Tex. Props., L.P. v. Petrie the Texas Supreme Court recently disposed of a premises liability case on the grounds of the unreasonableness of failing to take steps to make a property safe and not on the traditional grounds of foreseeability. 2017 Tex. LEXIS 107 (Tex. Jan. 27, 2017).

In UDR Tex. Props., Alan Petrie (“Mr. Petrie”) was assaulted and robbed in The Gallery apartment complex’s visitor parking lot. The apartment complex itself was gated; however, the visitor parking lot was located outside the gate and was accessible to the public. Mr. Petrie sued The Gallery apartment complex and its owners (collectively “Gallery”) and argued that Gallery knew or should have known about the high crime rate on its premises and in the surrounding area yet failed to use ordinary care to make the complex safe.

The trial court held that Gallery owed no duty to Mr. Petrie to protect him. The court of appeals reversed the trial court’s holding on grounds that Gallery knew or should have known of a foreseeable and unreasonable risk of harm. In reversing the trial court’s ruling, the court of appeals relied exclusively on the factors established in Timberwalk: proximity, regency, frequency, similarity, and publicity. Timberwalk Apts. v. Cain, 972 S.W.2d 749, 759 (Tex. 1998). Gallery urged the court of appeals to affirm the trial court ruling due to Mr. Petrie’s failure to separately brief the issue of whether the risk of harm was unreasonable. The court of appeals held that the “potential unreasonableness and foreseeability of harm is considered as a whole, not as separate elements requiring independent proof.” 2014 WL 7174242, at *3 (internal quotations omitted).

The Texas Supreme Court granted review and began its opinion discussing the Timberwalk factors. The Court indicated that the Timberwalk factors are used to measure foreseeability and are applicable to determine the reasonableness of a risk of harm. See Trammel Crow Central Texas, Ltd. v. Gutierrez, 267 S.W.3d 9, 18 (Tex. 2008). The Timberwalk factors do not compel any “consideration of what burdens a property owner would necessarily incur to prevent or reduce the risk of a crime. Likewise, the factors do not address whether, as a matter of public policy, it is preferable to impose such burdens or, instead, accept the risk that a crime will occur.” UDR Tex. Props., L.P.at 9.

The Court then discussed the issue of unreasonableness in failing to take steps to make a property safe. The Court found that the unreasonableness inquiry imposes a legal duty to protect against foreseeable criminal conduct. The Court added that this includes “whether a duty would ‘require conspicuous security at every point of potential contact between a patron and a criminal’ or require adoption of ‘extraordinary measures to prevent a similar occurrence in the future.’” Trammel Crow, 267 S.W.3d at 18; UDR Tex. Props., L.P.at 9. The Court recognized that it had never before disposed of a case on unreasonableness grounds since handing down its opinion in Timberwalk; however, the Court emphasized the importance of distinguishing between the foreseeability and the unreasonableness inquiries.

Additionally, the Court noted that Mr. Petrie had at every stage of the case been on notice that he had to argue and offer evidence of unreasonableness and had failed to do so. At no time had Mr. Petrie offered evidence pertaining to Gallery’s burden to make the property safe from foreseeable crime and whether that burden was reasonable. Due to Mr.Petrie’s failure to offer evidence on the element of unreasonableness in the determination of whether a legal duty exists in a premises liability case, the Texas Supreme Court rendered judgment in Gallery’s favor.

Downloadable .PDF - March 2017

Firm Newsletter - January 2017

Negligent Entrustment and Failure to Screen

 

4Front, a warehouse owner, hired Reyes, a licensed electrician, to repair a lighted sign that hung on an exterior wall about twenty feet above the warehouse’s entrance. Reyes subcontracted with Rosales, another electrician, to assist him. 4Front loaned Reyes a forklift and a “man basket” so that he could lift Rosales up to the sign.

Firm Newsletter - December 2016

An Insurance Carrier Must Tender a Corporate Representative for Deposition in an UM/UIM Case

In In re Crystal Luna, Luna brought suit against Antunez, the driver of the vehicle who caused her to sustain personal injuries. Luna also claimed she was covered under her automobile policy with State Farm, which included underinsured motorist coverage (“UM/UIM”).

Trial Win - November 28, 2016

Stephen C. Haynes, Partner San Antonio, TX

Stephen C. Haynes, Partner
San Antonio, TX

Congratulations to Stephen Haynes!

Maria O. Ynocensio v. William T. Hinton
Trial Date: November 28, 2016
Venue: 73rd Judicial District Court, Bexar County, Texas
Verdict: Defense verdict
Type of case: Auto Accident
Client: William T. Hinton

On November 28, 2016, Stephen Haynes started trial in the 73rd Judicial District Court of Bexar County, Texas. After a three day trial, Plaintiff’s attorneys asked the jury for $382,000.00. Plaintiff’s past medical expenses were $17,000. Plaintiff also had recommendations for cervical and lumbar spine surgery that would put her future medical expenses over $240,000.00. The jury awarded the Plaintiff $7,000.00 for past medical expenses and zero damages for future medical care expenses, physical pain and mental anguish in the past or future, and physical impairment sustained in the past or future. 

Congratulations!

VLRH would like to congratulate their associates, Jay Garza from our Edinburg office and Brenda Montoya from our San Antonio office, for passing the bar exam and becoming licensed to practice law in the State of Texas. Best of Luck!

Municipal Judge Terry Palacios, Left Jay Garza, Right

Municipal Judge Terry Palacios, Left
Jay Garza, Right

 
Brenda Montoya, Left Center Judge Antonia "Toni" Arteaga, Right Center

Brenda Montoya, Left Center
Judge Antonia "Toni" Arteaga, Right Center

Firm Newsletter - November 2016

Private Insurers that Offer Medicare Advantage Plans Can Sue Primary Insurers Under the Medicare Secondary Payer Act

In a matter of first impression, the Eleventh Circuit Court of Appeals recently addressed the issue of whether the Medicare Secondary Payer Act (“MSP”) private cause of action permits a Medicare Advantage Organization (“MAO”) to sue a primary payer that refuses to reimburse the MAO for a secondary payment.

Trial Win - September 13, 2016

Guillermo Tijerina, Jr., Partner Edinburg, TX

Guillermo Tijerina, Jr., Partner
Edinburg, TX

Congratulations to Guillermo Tijerina, Jr.!

Trial Date: September 13, 2016
Venue: County Court at Law No. 4, Hidalgo County, Texas
Verdict: Defense verdict
Type of case: Slip and Fall
Client: H.E.B. Grocery Company, L.P.

 

A directed verdict was returned on September 14, 2016, for Guillermo Tijerina, Jr., in a trial before the County Court at Law No. 4 of Hidalgo County, Texas.  Plaintiff, Claudia De La Rosa, claimed she fell on two grapes in the HEB grocery store located on Expressway 83 in Palmview, Texas, on August 14, 2013. Plaintiff claimed that Defendant was liable in that its employees knew or should have known that the substance was on the floor and that Defendant knew of the condition for long enough that it should have been noticed and corrected by the Defendant.

Defendant generally denied the allegations in Plaintiff’s petition and affirmatively pled that Plaintiff was guilty of negligence and/or intentional conduct proximately causing her injuries, if any.  Defendant challenged the reasonableness and necessity of medical treatment received by the Plaintiff.  Defendant also alleged that the condition may have been caused by the actions of third parties. The plaintiff presented her case to the jury.  Once the plaintiff rested, Defendant moved for a directed verdict on liability.  Defendant’s motion for directed verdict was granted.

Trial Win - August 23, 2016

Congratulations to Tamara Rodriguez & Glenn Romero!

Glenn D. Romero, Of Counsel Edinburg, Texas

Glenn D. Romero,
Of Counsel
Edinburg, Texas

 
Tamara L. Rodriguez, Partner Edinburg, Texas

Tamara L. Rodriguez, Partner
Edinburg, Texas

Rosa Mendez v. Javier Salinas & Antara Trucking, LLC

Trial Date: August 23, 2016
Venue: 398th District Court, Hidalgo County, Texas
Verdict: Defense verdict
Type of case: Auto Accident

Client: Javier Salinas & Antara Trucking, LLC

Another no-negligence jury verdict was returned on August 23, 2016, for Tamara Rodriguez and Glenn Romero in a trial before the 398th Judicial District Court of Hidalgo County, Texas.  Plaintiff (represented by Arnold & Itkin, John Daspit with the Daspit Law Firm, and, David N. Calvillo with Chamberlain Hrdlicka) alleged negligence and negligence per se against a tractor-trailer driver for a motor vehicle accident that happened in Houston.  Plaintiff claimed over $175,000 in past medical expenses, over $300,000 in lost wages and over $700,000 in future surgery, including cervical and lumbar fusions.  At the time of closing arguments, Plaintiff was seeking $2,272,952.00 in total damages.   The jury awarded no damages.