June 15, 2015

June 15, 2015

Greetings,

As of last Friday, June 12, 2015, the Texas Supreme Court released 9 opinions. As part of the new opinions, one related to an election contest and 3 are oil and gas opinions, both of which are beyond the scope of our firm's practice. However, we will review the remaining 5 opinions, which provide important guidance in employer non-subscriber cases as well as application of the exemplary damages cap.

Harris County Flood Control District v. Kerr, Case No. 13-0303: http://www.txcourts.gov/media/996484/130303.pdf

In this inverse condemnation case, the Court considered whether homeowners raised a fact question as to the elements of a taking. The homeowners blamed their county and flood control district for approving new development without mitigating resulting runoff and drainage issues, causing their homes to flood. The governmental entities moved to dismiss and for summary judgment. Because the homeowners presented evidence that the government entities knew unmitigated development would lead to flooding, that they approved development without appropriately mitigating it, and that this caused the flooding, the Court concluded that the homeowners raised a fact issue as to their claim.

Valdez v. Hollenbeck, Case No. 13-0709: http://www.txcourts.gov/media/996491/130709.pdf

In this probate case, the Court examined whether the fraud and misappropriation of an estate administrator that later resulted in criminal proceedings tolled the specific 2-year statute of limitations on bringing an equitable bill of review of an estate administration. The Court concluded that even with the application of tolling for fraudulent concealment, the heirs filed their equitable bill of review after running of the 2-year statute of limitations because they delayed in filing after learning facts that in diligence should have allowed them to bring their bill of review. The Court, without considering the merit of the bill, reversed the court of appeals and rendered judgment for the administrator and his surety.

Zorrila v. Aypco Constr. II, LLC, Case No. 14-0067: http://www.txcourts.gov/media/996492/140067.pdf

The Court held the exemplary damages cap is not a "matter constituting an avoidance or affirmative defense" and need not be affirmatively pleaded because it applies automatically when invoked and does not require proof of additional facts. See TEX. R. CIV. P. 94. Here, the petitioner did not plead the statutory cap, but she timely asserted the cap in her motion for new trial. The Court therefore reversed the court of appeals' judgment in part and rendered judgment capping exemplary damages at $200,000, but affirmed the court of appeals' judgment in all other respects.

Austin v. Kroger Texas L.P., Case No. 14-0216: http://www.txcourts.gov/media/996493/140216.pdf

In this case, the Court answered a certified question from the U.S. Fifth Circuit Court of Appeals regarding the scope of an employer's duty in a non-subscriber premises liability case. Here, a Kroger employee whose job was to clean up spills fell and injured himself while cleaning a known spill that was open and obvious. He claimed in addition to premises liability that Kroger was liable under a negligent instrumentality claim for failing to provide him with a cleaning chemical normally provided to do his job more safely.

The Court held that under Texas law, an employee generally cannot recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy. As is the case with landowners and invitees generally, employers have a duty to maintain their premises in a reasonably safe condition for their employees, but they will ordinarily satisfy their duty as a matter of law by providing an adequate warning of concealed dangers of which they are or should be aware but which are not known to the employee. The employee's awareness of the defect does not eliminate the employer's duty to maintain a safe workplace, but with respect to premises conditions, that duty is ordinarily satisfied by warning the employee of concealed, unknown dangers; the duty to maintain a reasonably safe workplace generally does not obligate an employer to eliminate or warn of dangerous conditions that are open and obvious or otherwise known to the employee. Exceptions to this general rule may apply in premises liability cases involving third-party criminal activity or a necessary use of the premises. If an exception applies, the employer may owe a duty to protect the employee from the unreasonably dangerous condition despite the employee's awareness of the danger, and the TWCA will prohibit a non-subscribing employer from raising defenses based on the employee's awareness.

The Court also held that unlike a negligent activity claim, a premises liability claim will not foreclose a worker in a non-subscriber case from also asserting a negligent instrumentality claim.

Seabright Ins. Co. v. Lopez, Case No. 14-0272: http://www.txcourts.gov/media/996494/140272.pdf

In this workers compensation case, the Court was asked to affirm the trial court and court of appeal's finding that a worker that had been provided a vehicle by his employer to drive himself and others to remote work sites but that was not paid for the travel time was within the course and scope of employment when he was injured in a car accident on the way to a work site. The Court concluded that the worker was within the course and scope of employment while traveling to his employer's worksite and affirmed the lower courts' judgments.

Conclusion:

Thanks for checking out The Bassett Firm's Texas Supreme Court Update. Check back next week to see if the Court releases any new opinions. In the meantime, we hope this update was of use to your practice.

Best Regards,

The Bassett Firm