The Texas Supreme Court in 2015 issued an opinion that should make it easier for defendants to win summary judgment in premises liability cases. In Austin v. Kroger Texas, L.P. (2015), the Court clarified that an invitee’s awareness of a dangerous premises condition does not bear on the issue of contributory negligence, but instead relieves the landowner of a legal duty to warn the invitee of the condition. This holding effectively reinstates the “no duty” doctrine in Texas, which the Court had abolished nearly forty years ago in Parker v. Highland Park, Inc. (1978).

Under the rule announced in Austin v. Kroger, a landowner generally does not have a duty to warn or protect an invitee against unreasonably dangerous premises conditions that are open and obvious or known to the invitee. Establishing that a condition is open and obvious can be difficult. Some judges may find that a condition is open and obvious as a matter of law, while others may submit the issue to a jury. Establishing that the invitee knew about the condition, however, is more straightforward. For example, a plaintiff’s deposition testimony that the plaintiff saw the dangerous condition before the plaintiff got hurt can be enough to defeat the claim entirely.

The new no-duty rule has two exceptions. The first is the criminal-activity exception, which applies when a dangerous condition results from the foreseeable criminal activity of a third party. The second is the necessary-use exception, which applies when the invitee necessarily must use the dangerous premises, and despite the invitee’s awareness of the danger, the invitee is incapable of taking precautions that will adequately reduce the risk. If a plaintiff raises one of the exceptions, defense counsel should argue that it is the plaintiff’s burden to prove the exception applies. After all, a plaintiff is required to prove the defendant owed him a duty, and if a duty would exist only if an exception applies, then a plaintiff should be required to prove the exception.

Although the Supreme Court issued its ruling two years ago, litigants and courts have been slow to catch up. The contributory negligence doctrine is well ingrained and has been instrumental to the analysis of whether a fact issue exists on a premises liability claim. And it appears that many judges are still reluctant to dismiss a plaintiff’s case when confronted with an open and obvious dangerous condition, opting instead to declare a fact issue despite the new legal standard. But in situations where it is proven that a plaintiff was aware of the condition, judges will be hard pressed to ignore Austin. Eventually, the body of law will develop as to what constitutes an open and obvious condition, and courts will then become more comfortable in granting summary judgment in those situations.

Thank you Fox Rothschild LLP’s Steven Ludwig for forwarding this to me.

Yes, there are other developments going on with the Trump Administration that have nothing to do with Russia, Twitter, and fake news.

Today the Department of Labor withdrew its 2015 and 2016 informal guidance on joint employment and independent contractors.  Why is this important, you ask?  Because during President Obama’s eight years in office, the DOL and its state counterparts upped the efforts to investigate and identify companies that were improperly classifying individuals as independent contractors.  The increased enforcement efforts led to the DOL taking a more expansive view of joint employment, and a higher standard for employers to meet to establish independent contractors.  These enforcement efforts culminated in the DOL’s 2015 and 2016 informal guidance on joint employment and independent contractors.  Under the Obama Administration’s independent contractor test, the key inquiry was whether the independent contractor was economically independent.  For joint employment, the Obama Administration’s DOL investigators looked at whether one employer exercised indirect control over the individual.  Today’s rescission of the Obama Administration’s tests returns the DOL to pre-Obama standards.  Thus, the DOL is reinstating the direct control test for joint employment (as opposed to the more expansive indirect control standard) and  right of control test for independent contractors (instead of the more liberal economic independence test).

Bottom Line:  The DOL still will investigate the classification of workers as independent contractors, and whether one employer can be held liable for another employer’s violations.   However, with today’s rollback to pre-Obama tests for joint employment and independent contractors, it may be easier to classify individuals as independent contractors, and it will be more difficult to hold one employer liable for the employment law violations of another employer.

 

 

The Texas Supreme Court has rejected the theory of defamation by compelled self-publication.  Say what? you ask?  Compelled self-publication occurs most often in the employment context, where a terminated employee is compelled to inform subsequent potential employers why the employee was terminated from the employee’s last job.  As the theory goes, if an employer gives untrue defamatory reasons for terminating an employee, it should recognize that such conduct creates an unreasonable risk that the defamatory matter will be communicated to prospective employers.  By rejecting the theory, the Texas Supreme Court was concerned about creating an actionable tort any time an employee disagrees with the employer’s reason for firing the employee.   By refusing to recognize a tort based on compelled self-publication, the Texas Supreme Court reemphasized Texas’s long-standing tradition of employment at-will.

Good news middle aged drivers!  Today the Texas Legislature has passed HB 60, making it illegal to text and drive in Texas.  The new legislation is headed to Governor Abbot’s desk, who is expected to sign the bill.  Based on the language of the final bill that passed both houses, it is an affirmative defense to prosecution under the new law if the person is using the wireless device in conjunction with a hands-free device, to navigate using GPS, to report illegal activity, or (and this is really in the law) to activate a function that plays music.

So you cannot text while driving, but you can use Google Maps and Waze, and listen to Spotify.  And no more honking at the car in front of you two milliseconds after the light turns green…

 

 

 

Those who know me know that I am into hunting and shooting sports.  I have been an avid handgun shooter since 1997.  I have been into shotgun sports and shotgun hunting since approximately 2005-2006.  Within the last couple of years, I have become an avid rifle shooter and have gone on two big game hunts, with a third scheduled.

Some time ago, while shooting at the Bullet Trap in Plano, Texas, I noticed a sign on the wall that said “Silencers Are Not Illegal.”  I did not think much of it at the time, since most people do not have silencers on their handguns.

Copyright: nexusby / 123RF Stock Photoisolated on white, illustration
Copyright: nexusby / 123RF Stock Photo

However, over the last two years, I have spent a lot of time at the Elm Fork 100 yard rifle range in Dallas, and I noticed that many people have silencers or suppressors on their rifles.  David Crooks and I often will discuss gun and shooting topics during breaks from legal work, and recently, we looked up the necessary steps for obtaining a firearm suppressor in Texas.  This prompted me to look up the actual statute, and this blog post is the result.

Firearm suppressors commonly are called “silencers;” indeed, even the Texas legislature calls these devices silencers.  However, this moniker is somewhat inaccurate.  It is a topic for another post, but suppressors do not “silence” firearms; rather, depending on the caliber of the gun (larger calibers are harder to keep quiet) and ammunition (regular vs. subsonic), suppressors have varying levels of effectiveness in quieting the perceived sound after firing a round.

But in 2015, during the 84th Texas Legislature, Texas Governor Greg Abbott signed into law SB 473, which amended Section 46.05 of the Texas Penal Code to make firearm silencers legal in Texas.  Prior to this bill, silencers had been illegal in Texas.

Under current Texas law, as long as one meets the requirements to be able to own a firearm (i.e., not a convicted felon, not under investigation for family violence, not diagnosed with a mental illness, etc.), he or she also can own a firearm suppressor.  The silencer must be registered in the National Firearms Registration, and a transfer (purchase) record must be maintained with the ATF.

If you meet these requirements, are willing to plop down the $400-$1,500 necessary to purchase a silencer, and pay a gunsmith to thread your firearm barrel to attach the silencer, you too can take advantage of another perk of living in Texas.  Happy (quieter) shooting.

Copyright: gsagi / 123RF Stock Photo
Copyright: gsagi / 123RF Stock Photo

 

 

 

In October, I wrote about How the Practice of Law is Like the NHL.  This article was about how rule changes in the practice of law, and changing skill sets in the NHL have made finesse and skill more important than brawling.  Recent experience has shown that this trend continues in law, and that Judges hate “gotcha games.”

Brett Myers and I recently sat through a trial docket call in County Court at Law No. 1 in Dallas County.  While waiting for our turn, we watched Judge Benson make two interesting rulings during a pre-trial hearing for the case ahead of us.

First, Judge Benson ruled that at trial, Defendant could not call as witnesses any of the twenty-three doctors it had recently disclosed.  Interestingly, Defendant’s attorney had added the doctors to Defendant’s disclosure responses forty-five days before trial, which is timely under the Texas Rules of Civil Procedure.  It did not come out during the hearing whether Defendant’s tardiness was a mistake or was intended as a “gotcha,” so as to not allow Plaintiff to conduct discovery on these witnesses.

Either way, the Judge sustained the Plaintiff’s objection to the witnesses, and held that this late disclosure caused unfair prejudice to Plaintiff.  In her commentary from the bench, Judge Benson said if there had been a timely supplementation of one or two witnesses, it would have been okay, but such a late disclosure of this amount of witnesses simply was not fair.

Second, in a turn of the tables, Judge Benson ruled against Plaintiff for similar reasons.  Defendant’s attorney had produced a video made by Defendant’s expert late according to the rules.  Although the video was produced late according to the technical letter of the law, it was produced eight months before trial.

Rather than taking any action to remedy the tardiness issue, Plaintiff’s attorney waited until a week before trial to object to the video – a clear attempt at a “gotcha.”  The Judge denied Plaintiff’s motion to exclude the video, and allowed Defendant’s expert to use the video.  Judge Benson stated that Plaintiff’s attorney had been in the possession of the video for so long that Plaintiff could not have been prejudiced, and that if Plaintiff felt it was prejudiced, it should have taken action during the intervening time period.

I think there are two lessons to be learned from this experience: 1) Supplement your discovery responses early and often; and 2) If you have a problem, take it up with the Court as soon as possible and do not sit back to try to wait on a “gotcha” ruling from the Court, because you may not get it.

We invite you to read Part 1 and Part 2 in a series of posts by Fox partner Dori K. Stibolt, regarding the new trend in ADA Title III litigation involving web access for the visually impaired.

Many of these cases have focused on travel, hospitality and financial services companies.  However, here in Texas, there has been a micro trend of these web site accessibility cases naming dentists and physicians.

One of the ironies in the business world is that the foresight and planning that goes into a creative work is often left behind when it comes to the subsequent protection of these efforts. Copyright protection is a concept that many are familiar with on a superficial level. But a lot of confusion exists as to what copyright protects and how you go about obtaining that protection. Copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and websites. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. In other words, if there is only one way to express an idea then it is not eligible for copyright protection. Although the bar for creativity is not set particularly high, there must be at least some modicum of original thought in the final work product.

So what is the proper way of obtaining copyright protection? It may surprise many people that copyright protection exists the moment a work is created. In fact, as soon as your work is complete, you have the right to include the © symbol on it. Aside from the cachet associated with any “legal” declaration of rights, the © symbol also serves as a deterrent to would-be infringers. But despite the ease with which an author can obtain instant copyright protection, enforcing these rights is another story. In order to be able to sue someone for copyright infringement, you have to first obtain a copyright registration. This entails submitting your work specimen along with an application to the U.S. Copyright Office. The cost of filing such an application is modest, and it pales in comparison to what it will cost if this crucial step is not undertaken. Without the ability to sue in federal court, you can never be compensated or receive money damages when someone copies your work. More important, you cannot stop someone from continuing to use your work. Further, if you register your copyright within three months of publication you may be entitled to attorney’s fees and statutory damages. Statutory damages are a powerful remedy in that you do not have to prove lost profits in order to receive them. Plaintiffs who can show willful infringement may be entitled to statutory damages up to $150,000 per work. So what is the moral of the story? If something is worth your time to create, it is worth your time to protect.

I get questions all the time about the enforceability of noncompetes in Texas.  I have to respond in the most-irritating lawyer-like way possible: I say that the enforceability of any particular noncompete all depends on the language of the noncompete and the facts of the case.  That response predictably results in a long period of silence.

There is ample Texas case law enforcing noncompetes against former employees to prevent former employees from competing.  In these cases the employers successfully have demonstrated that there is a threat to the employers’ business interests through the disclosure of confidential information or damage to company good will.  There also is a lot of seemingly irreconcilable Texas case law where the courts have refused to enforce noncompetes to prevent former employees from competing where the employers offered proof that former employees had confidential information and were in a position to use the confidential information to the employers’ detriment.

Legally speaking, Texas has a statute that allows an employer to enforce a noncompete when what would otherwise be a restraint on trade is necessary to protect a legitimate interest of the employer.  In Texas, a legitimate interest of the employer could be (1) preventing the disclosure of confidential or proprietary information; or (2) protecting company good will.  Contrary to what a lot of people believe, the enforceability of a noncompete is not dependent on the employer paying the employee compensation that is tied to the noncompete, and is independent from the reason that the employee’s relationship with the employer ended.

In my practical experience I have found that judges in general do not like noncompetes.  They do not like the idea of putting a person out of work, unless the facts particularly justify the extraordinary step of entering a injunction.  You can get a sense of the courts’ uneasiness with noncompetes in the Dallas Court of Appeals recent decision affirming a trial court’s denial of the employer’s request for a temporary injunction in BM Medical Management Service, LLC v. Turner.

Turner had a one-year noncompete that prohibited him from working in a competing business, soliciting BM Medical’s clients, recruiting or hiring BM Medical’s employees, or disclosing BM Medical’s confidential information.  BM Medical fired Turner, and a month later he went to work for a competitor.  Despite having access to BM Medical’s client list of over 1600 customers, the trial court denied BM Medical’s request for a temporary injunction to prevent Turner from soliciting BM Medical’s clients.  The court found that BM Medical failed to prove that Turner “possessed, used or disclosed any confidential information and if failed to prove that Turner was soliciting its clients.”  One BM Medical client did follow Turner to his new employer, but the Dallas Court of Appeals noted that this single client was a “good friend of Turner’s whom Turner had known before he went to work for BM Medical.”

Notably, BM Medical only sought to prevent Turner from contacting BM Medical’s clients (and not enforcement of the outright ban on any competition), and from disclosing BM Medical’s confidential information. But even limiting its request for relief was not enough to satisfy the court.  Presumably the result would have been different if BM Medical had established that Turner actually solicited BM Medical’s clients, or if BM Medical had shown that the information that Turner had was particularly sensitive to BM Medical’s business interests.

Based on the court’s conclusion, I get the impression that neither the trial court nor the court of appeals thought that Turner was a threat to BM Medical’s business interests.  So if you want to enforce a noncompete in Texas, here are some important considerations to maximize your chances of having the judge agree with you:

  • Spell out for the judge the actual threat that the former employee poses to the business interests of the employer.  The degree to which an employer wants to restrict a former employee from competing is directly related to the actual threat that the former employee poses to the business’s legitimate business interests. For example, a sales employee who is terminated for poor performance probably does not pose an actual threat to the employer’s existing sales.
  • Explain to the judge what relief you need to address the actual threat posed by the former employee.  The restrictions that the employer seeks to enforce against a former employee must be tied closely to the actual threat to the employer’s legitimate business interests.  An employer’s desire to restrain all competition is not a legitimate business interest, and an outright ban on all competition everywhere rarely is closely tied to the actual threat posed by the former employee to the employer’s legitimate business interests.
  • Judges do not like noncompetes.  When asking for temporary relief, give the judge way to overcome this dislike of noncompetes by asking for the bare minimum of what you need to address the actual threat.  If you can ask for relief that allows the former employee to continue to work, even better.  As an example, courts seem more willing to restrict a former employee from soliciting actual clients with whom the former employee had contact as a result of the employer, but not so willing to restrict a former employee from soliciting any and all of the company’s customers regardless of whether the former employee knew about the customers.

And if you ask me if noncompetes are enforceable in Texas, I will probably say “It depends…”

 

When starting a new business, it is easy to get caught up in the excitement of putting all of your creative energy into the development of the goods and services that will serve as the backbone of your enterprise. Unfortunately, it is also easy to put important and fundamental components of the business plan on the backburner.  One such component is the business name and associated brand. Business owners sometimes assume that the business name they intend to go by will always be there for the using. Those who strive to be somewhat conscientious on this issue will go to domain registrars such as GoDaddy and reserve a domain name that includes the intended business name. However, registering a domain that contains your business name does nothing in the way of the intended trademark protection that a business owner seeks. After all, a trademark is how you go about protecting the brand that you worked hard to create.

While such efforts can be commended for their foresight, they are incomplete without the follow up efforts required for true business name protection. This false sense of security sometimes begins at the corporate formation stage, where business owners often mistakenly believe that the corporate name that the Secretary of State told them was “available” is akin to a formal protection of the business name. However, the only thing the Secretary of State was representing was that the name had not yet been used for purposes of a corporate formation.

The only true way to protect your business name is through state (and where appropriate) federal trademark registration. Unless your business will truly be relegated to your local community, a federal trademark registration is preferred since it provides the broadest scope of protection across the country. The process is not as daunting and costly as you may think. An experienced trademark attorney can assist you in preparing the application and getting it on file with the United States Patent and Trademark Office within a matter of days. Although the process of obtaining a trademark registration may take several months, there are protections in place that preserve your business name rights as of the date of your filing, and in some cases, the date of first use. It is important to tackle business name matters on the front end, as it can be a costly mistake to invest money on a name only to later have to abandon its use because someone else has superior trademark rights.