CAPITOL UPDATE: Texas voters for the first time in nearly 150 years will have a chance to put an independent in the governor’s office (Sam Houston was the last independent elected in 1859). The Texas Secretary of State announced late last week that both independent candidates, Kinky Friedman and Carole Strayhorn, had garnered enough petition signatures to qualify for the race. Strayhorn said: it’s a “two-person race” between her and incumbent Republican Governor Rick Perry. “I agree with her; but it’s between Carole and her ego,” retorted Friedman, who is a musician, humorist, novelist and the state’s best gadfly. Strayhorn describes herself in campaign literature as “One tough Grandma.” Friedman runs on the dual slogans of “Why the hell not?” and “How hard could it be?” Both will find out as they face Perry and Democrat Chris Bell this fall. Of course, you can depend on Tx/Up! for the best inside coverage.
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OPEN AND OBVIOUS DANGERS CAN BE A GOOD THING…depending on your perspective: A general contractor and a premises owner have no duty to correct open and obvious dangerous premises conditions and no duty to warn an independent contractor of their existence. See Coastal Marine v Lawrence, 988 S.W. 2d 233 (Tex. 1999). And we are proud to say we have secured summary judgments and dismissals for premises owners and general contractors on these grounds over the years. For example, if a homeowner calls a roofer out to the ol’ hacienda to repair the roof, he doesn’t have to warn him that he might fall off the roof. Management of dangerous heights is part of a roofer’s job. But until late last week, the “open and obvious” defense was available only to general contractors and premises owners who were sued by injured independent contractors. That has now changed.
Curtis Wilhelm kept bees for a hobby, but decided to sell 14 of his hives to John Black, a commercial beekeeper. Black brought two of his employees to Wilhelm’s house the next day to load the 200 pound hives up and take them away. Black supplied his men with protective gear, including protective suits, hats and gloves, but these crafty bees nevertheless stung one of Black’s men and he died within minutes of an allergic reaction.
The surviving widow, Dora Flores, brought suit against both Wilhelm and Black alleging negligence, including allegations that they had failed to warn of the dangers of Africanized bees, failed to provide proper protective gear and failed to assure Flores had been tested in advance for bee allergies. The jury found for the widow and awarded over $1.5 million. The intermediate appellate court affirmed. Only Wilhelm, the bee seller, appealed to the Texas Supreme Court.
In a very short opinion handed down last week, the Texas Supreme Court reversed the lower courts and held that the seller had no duty to warn the buyer or his employees about being stung “since that danger was obvious.” The Supremes reasoned that when it comes to obviously dangerous activities and premises conditions, a seller and premise owner should owe no greater duty to a buyer than a premises owner owes to an independent contractor. Wilhelm v Flores (Tex 2006).
This case represents a significant change in the law. The court has now extended the “open and obvious” defense not only to activities but also to plaintiffs other than independent contractors. It can now be argued that sellers have no duty to warn buyers of dangers that are obvious, and premises owners now have no duty to warn invitees of dangerous premises conditions or activities that are obvious. In other words, we can now leave the rake on the front sidewalk and get a chuckle when the mailman steps on it.
This change means that a case can now be decided by summary judgment instead of going to the jury if there is summary judgment proof that the activity or condition is open and obvious. This may seem a little counter intuitive to some folks because the defendant’s chances of securing a summary judgment and avoiding a jury trial actually improve as the activity or condition becomes more obviously dangerous. For example, unguarded balconies, unfenced swimming pools and a friendly game of yard darts with the neighbor’s three year old kid are all obviously dangerous, but now arguably carry no liability exposure. The more open, the more obvious, and the more openly and obviously dangerous, the better chance the defendant has to prevail.
The Texas Supreme Court, as the state’s top judicial policymaker, sees considerable social and economic benefit in curbing lawsuits brought by plaintiffs who don’t protect themselves against the obvious dangers in life…say like the spilling of hot coffee…because everyone knows that hot coffee can burn you and make you cry. And all reasonably sane people would agree that going to the golf course to watch Phil Mickelson play the 18th hole at a major tournament is an obviously dangerous activity that requires no warning. But down here in the trenches, we have noticed over the years that it is somewhat more difficult to get a trial judge to go along with an adult defendant who plays yard darts with the neighbor’s kids or engages in some sort of other obviously dangerous activity. And even to us…that’s open and obvious.
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FROM THE TX/UP! MAILBAG:
DEAR Tx/Up: I read last week that some federal judge in Florida got so fed up with the lawyers’ petty discovery disputes in one case that he ordered them to resolve their dispute by playing a game of Rock, Paper, Scissors on the front steps of the courthouse, winner take all. The judge’s written order required “each attorney, accompanied by one paralegal who shall act as an attendant and witness, to play the dispositive round of RPS on June 30.” Does that happen often in the administration of justice in Texas? Ariel, Oklahoma City.
Dear Ariel: Of course not. How viciously demeaning. In Texas, our judges order disputes resolved with a civilized match of Pinochle or Canasta.
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MARK YOUR CALENDAR NOW for our 12th annual, full-day, fully accredited ULTIMATE CLAIMS HANDLING SEMINAR on October 6, 2006 at CityPlace Conference Center in Dallas, Texas. Registration materials will be available in August.