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Vicarious Liability & Negligent Undertaking

Mar 7, 2013 — by Jeff Mundy
Tags: Personal Injury

Under the doctrine of respondeat superior, an employer may be vicariously liable for the negligence of its agent or employee who was acting within the scope of employment even though the employer did not personally commit a wrong. But a person or entity that hires an independent contractor is generally not vicariously liable for the tort or negligence of that person.  The right of control is the "supreme test" for determining whether a master-servant relationship exists. 

Texas law generally imposes no duty to take action to prevent harm to others absent certain special relationships or circumstances. However, one who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other's person or property will not be injured thereby. 

An employer has a duty to adequately hire, train, and supervise employees.

Attorney's Fees for Breach of Implied Warranties

Feb 2, 2013 — by Jeff Mundy
Tags: Contract Law

 A claim for breach of express warranty governed by UCC article 2 is a suit based on a written contract, even though the plaintiff did not plead a breach of contract claim and did not recover on that theory.... a party who prevails on a breach of express warranty claim may recover attorney's fees.

 "A warranty that the goods shall be merchantable is implied in a contract for their sale if their seller is a merchant with respect to goods of that kind." "An implied warranty is a representation about the implied quality or suitability of a product that the law implies and importsinto a contract." ... In other words, an implied warranty becomes part of the terms of a contract.

Cargo Damage in Transit - Federal Law Governs

Feb 1, 2013 — by Jeff Mundy
Tags: Commercial Law

Congress intended for the Carmack Amendment to provide the exclusive cause of action for loss or damages to goods arising from the interstate transportation of those goods by a common carrier. Accordingly, we hold that the complete pre-emption doctrine applies. Because the Carmack Amendment provides the exclusive cause of action for such claims, . . . claims [for such loss or damages] "only arise under federal law and [can], therefore, be removed . . . ."   (to federal court)


Expert Witness - Basis for Testimony

Jan 28, 2013 — by Jeff Mundy
Tags: Civil Procedure

Expert witnesses may base opinions on facts or data that the expert “has been made aware of or personally observed.” Fed.R.Evid. 703. If the facts and data relied upon are the sort that experts in that field would reasonably rely on, then those facts “need not be admissible for the opinion to be admitted." Id. Accordingly, experts may base their opinions on otherwise-inadmissible information, such as hearsay, so long as the information is the sort reasonably relied upon in the experts' field.

Contract Prevails Over Statutory Law

Jan 14, 2013 — by Jeff Mundy
Tags: Contract Law

... unless a contract is declared by law to be void or unenforceable, a court should not refuse to enforce a contract simply because it is in contravention of a statute. ... The court explained that if the legislature has expressly provided that other consequences may arise from violation of the statute, a reviewing court should reasonably infer that those consequences were adjudged to be adequate to secure the statute's observance, and that only those remedies should be applied. 

International Risk Control LLC v. Seascape Owners Association, (Tex. App. - Houston [14th Dist.] 2013).

Medical Tort Reform - When does it apply?

Jan 8, 2013 — by Jeff Mundy
Tags: Medical Malpractice

A hospital removed a podiatrist's privileges to practice at the hospital.

The doctor sued and the hospital asserted that the case was governed by the 2003 tort reform.

The court of appeals discusses the factors that determine whether a claim is subject to the tort reform.


Economic Loss & Settlement Credit Law

Jan 7, 2013 — by Jeff Mundy
Tags: Damages


One general formulation of the economic loss rule is that a party may not recover in tort for purely economic losses suffered to the subject matter of a contract.  In determining whether the economic loss rule applies, courts must consider "both the source of the defendant's duty to act (whether it arose solely out of the contract or from some common-law duty) and the nature of the remedy sought by the plaintiff." 

A non-settling defendant may only claim credit based on damages for which all joint tortfeasors jointly liable; and, exemplary damages assessed against non-settling defendant may not be offset by amount of common damages paid by settling defendants.

"Leased" Worker Not Barred by Worker's Comp

Jan 6, 2013 — by Jeff Mundy
Tags: Personal Injury

If an employee is covered by workers' compensation insurance, suits against their employer are barred by workers' compensation law.

However, the increasingly common practice of "leasing" workers complicates the analysis.  A leased worker's claim may not be barred unless certain criteria are met.

Texas Contract Law

Jan 6, 2013 — by Jeff Mundy
Tags: Contract Law

In disputes over the meaning of a contract, courts first look to the plain language of the contract to determine whether it is ambiguous. "In Texas, whether a contract is ambiguous is a question of law." A contract is ambiguous "if its plain language is amenable to more than one reasonable interpretation."   If a contract is unambiguous, we apply its plain meaning and enforce it as written.  If a contract is ambiguous, then, and only then, do we consider extrinsic evidence for "the purpose of ascertaining the true intentions of the parties expressed in the contract." 

Land Use - Ranch Road or County Road?

Jan 6, 2013 — by Jeff Mundy
Tags: Land Use

A ranch road in existence and used by the public for many decades is a county road impliedly dedicated to public use.

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