This Fourth of July please consider “While fireworks shows take place outdoors, the purpose of attending such an event is not to enjoy nature or the outdoors, but rather to watch man-made explosions in the sky.” The Amarillo Court of Appeals held that watching fireworks does not invoke Texas’ recreational use statute. On the Fourth of July in 2019, after a day of swimming and outdoor activities, the plaintiff was watching a fireworks display at Buffalo Springs Lake put on by a company which contracted with the Lubbock County Water Control and Improvement District. During the fireworks display, Plaintiff was severely injured by falling debris after an explosion. Buffalo Springs Lake is owned by the Lubbock County Water Control and Improvement District. After suit was filed, the WCID moved to dismiss the case under Texas’ recreational use statute which raises the liability standard in premises-defect cases involving land opened to the public for recreation. The Amarillo Court of Appeals affirmed the denial of the WCID’s attempt to dismiss the case under the statute. It reasoned that while the plaintiff’s pursuits earlier in the day, such as swimming and picnicking at the lake, clearly qualify as “recreation,” the focus must be on the plaintiff’s activity at the time he was injured, namely watching a fireworks display. The court held that the statute “does not apply to the passive observation of a manmade exhibition, even in a natural setting.” When Plaintiff settled in to watch the fireworks display, his purpose was not to interact with his natural surroundings but rather “to be entertained by a human production…” “thus, the Recreational Use Statute does not apply.” The case is Lubbock County Water Control and Improvement District No. 1 v. Rodriguez et al. 2024 WL 2949042, at *1 (Tex. App.—Amarillo June 11, 2024, no pet. h.).
“If You Wait, You Can’t Abate.” Chamberlain ♦ McHaney successfully thwarted the efforts of first-party claimants in four lawsuits when they attempted to invoke the appraisal provisions of their homeowner’s insurance policies, which were coupled with a request for attorney’s fees. The insured claimants sought to invoke the appraisal process after they had filed suit and, in some cases, after the deadline for discovery and expert designations had passed. Chamberlain ♦ McHaney argued on behalf of its client that the invocation of the appraisal process had been waived by the filing of suit. In other cases, there was no coverage, rendering the appraisal process a waste of time and money. The court agreed with the position of Chamberlain ♦ McHaney’s client and denied all four motions in full.
When coffee pours out, it could cause a whole latte problems. But a coffee stand configuration is not a basis for a premises liability claim when a patron slips in water. The Houston Court of Appeals poured out a plaintiff who stopped at a local store to get coffee. The plaintiff walked toward the coffee area and slipped in water. She sued because the coffee stand configuration had the cups and lids six feet away from the coffee dispenser which created an alleged dangerous condition. The plaintiff’s argument was that the configuration of the coffee area—rather than the slippery substance on the floor—was an unreasonably dangerous condition because customers can spill coffee while walking the six feet from the coffee dispensers to the condiment island with an open cup. But since the plaintiff slipped in water, the configuration of the coffee area was irrelevant to her claim that the area posed an unreasonable risk of harm from customers spilling coffee. The case is De Luna v. Buc-ee’s, Ltd., No. 01-22-00917-CV, 2024 WL 2335702, at *8 (Tex. App.—Houston [1st Dist.] May 23, 2024, no pet. h.).
Chamberlain ♦ McHaney secures favorable settlement. This case involved an accident involving our client’s tractor trailer which allegedly encroached onto another lane and impacted Plaintiff’s vehicle. Plaintiff claimed back pain and neck pain and the need for shoulder surgery and did indeed get the shoulder surgery. The case settled for just 60% of past medical expenses.
You can make lemonade out of lemons, but you can’t make a personal injury case out of a watermelon pallet. The Texas Supreme Court made the decision this month that a wooden pallet used to transport and display watermelons is not an unreasonably dangerous condition. The Plaintiff in this case, while shopping at a grocery store, had his boot stuck in a wooden pallet used to transport watermelons. He tripped and fell and sued for injuries. After a jury trial in which plaintiff was awarded in excess of $6 million, the Court applying longstanding Texas case law held that a common or innocuous hazard is not unreasonably dangerous when there is an absence of prior accidents, injuries, complaints, reports, or regulatory noncompliance, reversing and rendering the case. The case is Pay & Save, Inc. v. Canales, ___ S.W.3d ___, 2024 WL ___ (Tex. June 14, 2024) (per curiam).
Learn about these new developments and more at our….
ULTIMATE CLAIMS HANDLING SEMINAR XXVIII
Friday, October 11, 2024
8:15 A.M. – 5:15 P.M.
Fairmont – Dallas
1717 North Akard Street
Dallas, Texas 75201
*Course Topics and CLE Credit Information Available Soon
Since 1984 Chamberlain ♦ McHaney has defended complex cases in trial and on appeal. We have lawyers on staff that are board certified in civil trial law, personal injury trial law and civil appellate law. Please give us a call.
David E. Chamberlain and Sean B. Swords