Premises Liability: Injuries Incurred at a Business

The City of Irving has enacted a new law that goes into effect on January 1, 2010 that allows police to target crime-infested apartment complexes. The new ordinance puts pressure on landlords to clean up their properties or risk being shut down. Under this new law a threshold is established for individual apartment complexes. If the crime rates surpass it, the landlords must take part in a mandatory crime reduction program that costs $250. Police work with the landlords to improve overall security including lighting, fencing and landscaping. Tenants will also have to undergo background checks by the Department of Public Safety.

A similar law has been enacted in both Houston and in Dallas. In Houston, 30 apartment communities have been forced to implement a mandatory crime reduction program. Since that time, those apartment communities have seen a 26% decrease in crimes at those communities.

Part of the reason for this new law is that Irving Police say:

• 62% of all robberies of individuals in Irving take place in apartment complexes
• 48% of all auto thefts in the city take place in apartment parking lots and
• 41% of aggravated assaults in Irving take place in apartment complexes.

While this new law is a good step towards cleaning up our neighborhoods and hopefully reducing crime by requiring landlords to be actively involved in steps to decrease crime at the risk of having the complex shut down, the law does not specify whether an apartment complex that is required to develop a mandatory crime reduction program, but negligently fails to either implement the program or to comply with it, can be held liable for such conduct. More importantly, often the apartment complexes that are located in the highest crime zones, do not carry liability insurance. As more and more cities begin to implement these laws, it will be interesting to see how the Texas Courts handle these cases particularly since these communities are still expected to be located in areas of high concentration of violent crimes.

Currently, Texas law is very difficult to overcome the legal hurdles to hold a landlord liable for the criminal conduct of others, but in the Texas Supreme Court cases addressing the issue, none of those cases have involved an apartment complex that had a crime rate that mandated the complex enact a crime reduction program. For example, it would be interesting to see how the opinion of the Texas Supreme Court might differ in the case of Timberwalk Apartments v. Cain, 972 S.W.2d 749 (Tex. 1998) if the apartment complex at issue had been under a legal duty to implement a crime reduction program but failed to do so. In Timberwalk, the tenant sued landlord after she was raped in her apartment. The Court held that the incident was not foreseeable as a matter of law. The Court noted that “Crime may be visited upon virtually anyone at any time or place,” but criminal conduct of a specific nature at a particular location is never foreseeable merely because crime is increasingly random and violent and may possibly occur almost anywhere, especially in a large city. In deciding whether the crime was foreseeable, Courts must consider whether any criminal conduct previously occurred on or near the property, how recently it occurred, how often it occurred, how similar the conduct was to the conduct on the property, and what publicity was given the occurrences to indicate that the landowner knew or should have known about them.

A Fort Worth jury awarded more than $11 million Monday to the family of a boy who was seriously injured after being struck by a car driven by another child at Texas Motor Speedway. The case arose from an incident where Ryan Davies (11 at the time of the 2006 incident) when another boy lost control of a miniature race car while driving across a pit area at the Speedway. The driver of the miniature race car was a 12-year-old boy with a pervasive development disorder experts said is similar to mild forms of Asperger’s syndrome or autism, but he had no restrictions on his activities. In any event, the young driver lost control of the race car and narrowly missed a trailer and several parked cars before slamming into Ryan Davies who was playing football with other boys in the pit area while his parents watched the incident occur. As a result of being struck, Ryan sustained a traumatic brain injury that has left him with significant cognitive deficits.

Because young driver had a disorder, it is not surprising that a large part of the case focused on whether the driver should have been driving and what precautions the Speedway should have taken that would have prevented this incident. Karen Zina and William Davies, the parents of Ryan Davies, brought a claim against Texas Motor Speedway claiming it was negligent and that the Speedway’s negligence proximately caused the wreck because the race track did not provide barricades, signs, a kill switch on the car and proper instructions to prevent an accident. The Speedway however, contended that the young driver and his parents were responsible because they knew that their son had a “mental and/or emotional condition” that made him “incompetent” to drive the car. After a three-week trial in 348th District Court before the Honorable Dana Womack, a jury found that the negligence of the Texas Motor Speedway and the parents of the young driver caused the occurrence. The jury found that the Speedway’s negligence was 80 percent of the cause of the occurrence, while the parents of the driver were each 10 percent negligent. The jury did not find the young driver or William Davies to be negligent.

While the verdict amount may sound high because it was a total of $11.4 million, the majority of the damages were only awarded to compensate the Davies family for the past medical expenses of $1.4 million and $8.5 million in future medical damages. Sadly, the injuries Ryan received are life changing injuries for this young boy. Ryan Davies spent 10 months at Cook Children’s Medical Center recovering from traumatic brain injury. In addition, a neurologist testified that Ryan will never live independently and will need help with daily tasks such as bathing, dressing and eating. In addition, because in cases such as this the jury is not entitled to award damages for attorney’s fees and legal expenses, the damages awarded will be further reduced to cover those fees and expenses.

The jury also determined that parental consent and liability waivers signed by the injured boy’s Denton County parents did not apply to the accident. Frequently, companies to try to avoid being liable for their negligence by hiding waivers and releases in forms in small print. However, Texas law is clear that those types of waivers and releases are not valid.

“We are encouraged that the jury’s award will provide the financial means necessary to provide for Ryan’s good care and treatment for the rest of his life,” Collins said. “We are also hopeful that news of this case will generate support for a heightened level of participant and spectator safety awareness for all facilities that offer motor sports to the young and inexperienced.”

Texas Motor Speedway President and General Manager Eddie Gossage said through attorney Mark Hatten that “Texas Motor Speedway respects the jury’s decision. However, we want to assure our fans that safety is our top priority.”

This case points out that just because the business may try to discourage people from holding it accountable through a waiver or release, often times the waivers and releases are not valid because they are not prepared properly. These issues involved complicated legal analysis that require an attorney to evaluate. However, Texas has specific requirements for these types of releases including the requirement that the language must meet the requirements of fair notice. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993). There are two fair notice requirements:

1. the express negligence doctrine and
2. the conspicuousness requirement.

In general, Texas law does not favor the releases which waive liability for causing someone’s injuries in advance of the incident occurring especially where the business providing the release tries to hide the language or prints the language in a manner that the person signing the form is not expected to see the language.

The classic example of a case where the release has been held invalid because the language was not conspicuous was therefore invalid and unenforceable because it was hidden on the reverse side of a sales order. For obvious reasons, the Court held that the language on the back of form was not conspicuous. K & S Oil Well Service, Inc. v. Cabot Corp., 491 S.W.2d 733, 737 (Tex. Civ. App.–Corpus Christi 1973, writ ref’d n.r.e.)

Another classic example of a release that has been held invalid under Texas law is where the language is printed in small print or is imbedded in a form where the person signing the form would not expect to see such language. The Houston appellate court also refused to enforce indemnity language in Scaffold Co. v. Safway Steel Prod., Inc., 570 S.W.2d 225, 228 (Tex. Civ. App.–Houston [1st Dist.] 1978, writ ref’d n.r.e.) because the language appeared in small, light type on the back of a rental form and was surrounded by unrelated terms.

To protect the public and to discourage the use of deceptive efforts to get a release, the Texas Supreme Court adopted a clear rule for determining whether the language in a release is conspicuousness if the release seeks to release a party for its own negligence in advance of the incident. The Court expressly adopted the standard set forth in the TEX. BUS. & COM. CODE ANN. § 1.201(10) (Tex. UCC). The Court noted that this standard for conspicuousness in Code cases is familiar to the courts of this state and conforms to our objectives of commercial certainty and uniformity. See Cate v. Dover Corp., 790 S.W.2d 559, 561 (Tex. 1990). Section 1.201(10) of the Texas Bus.& Commerce Code defines “Conspicuous,” as follows, “with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following:

1. a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and

2. language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off fromsurrounding text of the same size by symbols or other marks that call attention to the language.”

This case also shows how suddenly tragedy can occur and that within a flash of a moment lives are changed forever because of the negligence of other people. We absolutely hope that you and your family never have to face the issues of dealing with these types of significant injuries, especially a traumatic brain injury, but if you are, it is important that you seek prompt legal advice. If you are injured by the negligence of someone else, contact Rachel Montes at (214) 522-9401 for a free, no obligation, case consultation.

Tragedy has struck two Bridgeport families as Leslie Denison (17) was killed and Rebekah Logan (17) were injured when a concrete and aluminum awning detached and collapsed on top of them as they jogged along a sidewalk in downtown Bridgeport. The two girls are members of the cheerleading squad and cross country team in Bridgeport. The incident occurred just outside of Club Barbell. Leslie Denison died at the scene while Rebekah Logan was treated for severe cuts to her face and other injuries. Ms. Logan was airlifted to John Peter Smith Hospital in Fort Worth and was released early Wednesday.

Authorities have not determined the cause the collapse as the investigation of the scene was not complete, and research regarding the business’ building permits and inspection records were not immediately available.

Obviously buildings and their adjoining structures should not collapse. An investigation of this case will clearly have to involve an extensive look into the actual construction site as well as the plans and designs for the awning, as well as the maintenance and inspection records for the building and awning. At Montes Herald Law Group, LLP, we represent the victims of premises liability claims and construction site accidents. While it seems obvious that someone should be held accountable for this tragedy, these cases are very complex and require immedaite investigation to properly preserve evidence of the true cause of the incident.

If you have been injured in a construction site accident or a crane accident or other type of on-the-job injury, contact Rachel Montes or Tom Herald at Montes Herald Law Group, LLP (214) 522-9401 and to protect your rights.

Two of the Top 25 Most Dangerous Neighborhoods are located in Dallas, according to a recently released study of FBI crime statistics. The neighborhoods include:

9^th Most Dangerous Neighborhood in the United States: Route 352 at Scyene Road

12^th Most Dangerous Neighborhood: 2nd Avenue and Hatcher Street.

The study ranked the danger in a neighborhood by calculating the number of violent crimes per 1,000 residents in a census tract, the Chicago Sun-Times reported. Only Cincinnati, Miami, Kansas City, Baltimore, Jacksonville, Memphis had worse showings.

In Texas, a business owner is supposed to take reasonable efforts to protect their customers from violent crime that occurs on their premises. These rankings should put businesses on alert of the need to take additional efforts to protect their customers from the risk of violent crime. Typically, those measures include security patrols, additional lighting, and video monitoring of the premises. When a business is or should be aware of an unreasonable risk of harm to its customers and fails to take action to protect its customers and employees, the business can be determined to be negligent in providing a safe work place for its employees or negligent in providing adequate security measures to protect its customers from a risk that it knew or should have known about, the business can be held liable for its proportionate amount of legal responsibility for incidents when customers are injured or killed as a result of a violent crime on that took place, in whole or in part on the premises. If you or a loved one has been seriously injured while on a business premises, contact Montes Herald Law Group, LLP for a free consultation of your case. Visit our website www.MontesLawGroup.com to learn more about our firm.