During the last five years, the United States has seen a drastic increase in mass shootings.

On November 5, 2017, just after 11:00a.m., a gunman entered a church in Sutherland Springs, Texas and opened fire. That Sunday morning 26 church patrons were killed and another 20 were injured including men, women and children.

On October 1, 2017, a gunman opened fire on a crowd of concertgoers at a music festival in Las Vegas leaving 58 people dead and 851 injured.

On June 12, 2016, a 29-year-old security guard killed 49 people and wounded 58 others in a nightclub in Orlando, Florida.

On December 14, 2012, a man walked into an elementary school and killed 20 children between the ages of six and seven years old, as well as 6 adult staff members.

In the wake of some of the deadliest mass shootings in U.S. history, many businesses, schools and churches are asking themselves whether they should be doing more with regard to security. From a legal standpoint, the answer may be evolving. As mass shootings become more and more frequent in the United States, what should hosts of large groups be doing to protect their patrons from violence and themselves from liability exposure?

Unfortunately, the answer varies widely depending on the circumstances. Factors such as 1) crowd size, 2) location, 3) specific existing threats, 4) previous security problems and 5) the level of vulnerability of patrons are just some of the issues that should be considered. However, what we believe is reasonable and necessary when it comes to security is evolving rapidly. For example, many “soft targets” such as open venues, churches and schools that previously would not have been expected to have private armed security guards, may need to re-evaluate their security plan given the increase in mass shootings across the country.

While we hope we never reach the point where a jury of our peers is judging our security decisions in retrospect, when addressing security needs from a legal standpoint, consider what is reasonable and prudent given the current environment and substantial increase in mass shootings across the country.

The moral answer to this question is outside the scope of this article; however, from a legal standpoint, in a civil lawsuit alleging inadequate security, a jury would likely be asked to determine whether the Defendant was negligent. Negligence is defined as:

The failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances

In an era where mass shootings are becoming commonplace, churches, schools and businesses should consider that what may have been reasonable (i.e. ordinary prudence) five years ago, is not necessarily reasonable today. At what point does it become negligent to fail to have professional armed security if you are hosting a large, vulnerable group of people? While the answer to this question will vary depending on the circumstances, in the context of a civil lawsuit, a jury will inevitably decide.

 

Texas has long been one of the best locations to start a business, and a big reason for this is the liability protection afforded by the business-friendly Texas courts. Most business owners seek to limit their personal liability if something goes wrong with the business. This leads to one of the questions I get most often: Which business structure provides more liability protection to the business owner? The short answer is it depends on what happened.

I believe most owners are concerned with what is known as piercing the corporate veil.   “Piercing the corporate veil” is a legal term that means that the owners/members of a corporation or LLC lose the limited liability protection the business entity provided, thus the piercing of the veil of protection. When this happens, personal assets can be used to satisfy business debts and liabilities, not just corporate assets.  The result is that individuals start getting named in lawsuits, in addition to the LLC or corporation they own.

When we look at the Texas Business Organizations Code (TBOC) we see that the two most popular business structures, corporations and limited liability companies, have similar protections for owners. Both organization structures limit liability on contract issues, and absent actual fraud or unless some extraordinary circumstances exist, the veil will not be pierced on a contract action.

But it is a little easier to pierce the corporate veil when it comes to tort liability. Businesses get sued for all kinds of torts, like slip and falls, job site accidents, etc… The two prevailing theories used to pierce the veil in a tort action are the alter ego theory and the single business enterprise theory.

The alter ego theory boils down to looking at how the owners managed internal matters, how the financial interests were kept separated from personal interests and the degree of control the individual had over the company. Basically, was the LLC put in place as a shield to liability or were business formalities observed? The courts will look at everything from the existence of a corporate book to the payment of taxes in order to determine the degree the alter ego was employed.

The other theory used to pierce the veil is the single business enterprise theory. This is used to impute liability to companies that share resources and operate as if they were one entity. This is rarely used, but when it is it can considerably open up the pool of damages available to the plaintiff.

There are a number of other things to consider when analyzing business and personal liability when starting a business. For example, when starting a new business, an owner may need to personally guarantee a business loan. No piercing of the veil is necessary to hold the owner personally liability for the guaranteed debt. Oh, and it goes without saying, no business entity will insulate an owner from criminal liability or protect them if their personal actions cause an injury to someone.

 

 

I have been writing on this blog about how Dallas County juries have shifted over the years from pro-defense to pro-plaintiff, or at least to a point where most prospective jurors in Dallas County don’t necessarily consider lawsuits a bad thing.  In the era of tort reform, this attitude among prospective jurors in Dallas County is very interesting.  My previous posts are here, here, and here.

But why do we care about juries anyway?  There are the constitutional reasons, and the traditions in our legal system that are tied inextricably to the jury trial process.  There are the defenders of the jury trial as the last line of defense against oppression.  And these are good reasons to care about the juries.

But my focus on why juries matter is more practical.  In Texas, juries matter because once a jury renders a verdict it is extraordinarily rare for the jury’s verdict to be overturned.  It happens, but not very often.  This is because legal and factual sufficiency challenges to a jury verdict are judged against very high standards.

The Dallas Court of Appeals just released a decision in Adams v. Bellas affirming a jury verdict where the court went through the standards for legal and factual sufficiency challenges to a jury verdict.

To overturn a jury verdict on legal sufficiency grounds, the court must first credit any evidence favoring the jury verdict if reasonable jurors could disregard contrary evidence if reasonable jurors could not.  If more than a scintilla of evidence supports the jury’s verdict, then the court has to uphold the verdict.  There is no weighing of the evidence on one side or the other.  The court simply looks at whether there is some evidence that would “enable reasonable and fair-minded people to reach the verdict under review.”

To overturn a jury verdict on factual sufficiency grounds, the jury’s verdict must be against the great weigh and preponderance of the evidence.  This means that the jury verdict will be set aside “only if it is so contrary to the overwhelming weigh of the evidence as to be clearly wrong and manifestly unjust.”

Taken together, the high standards for legal and factual sufficiency protect the philosophical value that we place on the role of the jury in our legal system. We have assigned the jury the role of weighing the evidence and resolving any conflicts or inconsistencies in the evidence.  We then shield the jury’s verdict from second-guessing by creating high standards for overturning the jury’s verdict.

So why do juries matter?  Because under our system, once the jury delivers its verdict it is procedurally and practically very difficult to overturn the verdict.  Oh, and also for all those constitutional reasons and tightly-held traditions long associated with our legal system.

As most people who know me know, I am a registered pharmacist in addition to being a lawyer. After graduating from the University of Rhode Island College of Pharmacy in December 1992, and passing the Rhode Island pharmacist licensure exam in February 1993, I practiced pharmacy in various settings until graduating SMU’s Dedman School of Law in May 2003.

As part of the continuing education for my pharmacist license, I recently went to a continuing education seminar presented by the Institute for Brain Potential in which Martin M. Antony, PhD was the speaker.

During the presentation, Dr. Antony said that numerous studies point to poor communications by health care professionals as the most common factor leading to malpractice claims.

39054530 - portrait of cheerful female pharmacist chemist woman in pharmacy drugstore
Copyright: kadmy / 123RF Stock Photo

According to Dr. Antony, it is not a mistake that generally leads to a lawsuit; rather, it is poor communication after the mistake. The examples Dr. Antony gave were things such as health care providers avoiding his or her patient’s calls after the mistake because they know the patient is angry, failing to admit the mistake, and failing to say “I am sorry.”

The failure to apologize is an interesting point. Many lawyers advise their clients that in any in any situation, whether it is a car accident or a mistake in a health care setting, not to apologize and not to admit to anything, especially not fault.

While this advice certainly is applicable in many situations. The criminal context immediately comes to mind. But if a verifiable mistake is made in a health care setting, then there may be other strategies to consider.

The purpose of this blog post is not to give legal advice, and certainly is not to come up with a strategy for dealing with a pharmacist, physician or hospital mistake in less than 500 words. Rather, it is to suggest that health care providers should have a plan in place for dealing with mistakes prior to the issue getting to litigation, and to highlight that patient communication may be an integral part of that plan.

logo-colorI have been defending pharmacists against a multitude of claims for my entire thirteen years of law practice.  Many at Fox Rothschild have been doing it much longer.  We can help you come up with a plan for dealing with health care liability claims and/or mistakes.

While perhaps fun for kids, unusually heavy rain can cause problems for commercial property landlords, including flooding, mudslides, and mud buildup.

Copyright: chepko / 123RF Stock Photo
Copyright: chepko / 123RF Stock Photo

According to visitdallas.com, October ties with April for the second wettest month in Dallas (not surprisingly, May is first). October averages 3.5 inches of rain for the month, which means that Dallas usually gets more rain in October than Seattle, Washington (3.27 inches according to usclimatedata.com).

Under Texas law, premises operators owe a duty to keep their premises safe for business invitees against conditions on the property that pose an unreasonable risk of harm. This duty owed by premises operators, however, does not render the operator an insurer of the invitee’s safety.  According to the Texas Supreme Court, ordinary mud or dirt in its natural state can and often does form a condition posing a risk of harm, but not an “unreasonable” risk of harm. In other words, mud that accumulates naturally on an outdoor concrete slab, without the assistance or involvement of unnatural contact, is nothing more than dirt in its natural state and is not a condition posing an unreasonable risk of harm.

Copyright: Cole123RF / 123RF Stock Photo
Copyright: Cole123RF / 123RF Stock Photo

Plain dirt which ordinarily becomes soft and muddy when wet, or mud that accumulates due to rain and remains in its natural state, are not dangerous conditions of property for which a landlord may be liable.

One word of caution, however: if a premises operator undertakes to remove the mud, it must do so reasonably, and take care to avoid creating a dangerous condition during the removal.

I look this up every time it comes up.  For once and for all, the beneficiaries under Texas’s Wrongful Death Statute are the surviving spouse, children, and parents of the deceased.    This includes adopted children and common law spouses, but does not include same-sex spouses (yet).  The class of plaintiffs also includes so-called “illegitimate” biological children.

Brothers, sisters, grandparents, grandchildren, aunts, uncles, nieces, nephews, and cousins do not have standing to bring a wrongful death action.

Also, the estate of the deceased does not have standing to bring a wrongful death claim.  The estate’s claims are covered by Texas’ Survival Statute.

The wrongful death plaintiffs can sue to recover the damages that they have incurred as a result of the death of the deceased.  These damages include pecuniary losses, mental anguish, loss of companionship, and loss of inheritance.  Surviving spouses and children can recover exemplary damages, but parents cannot recover exemplary damages in a wrongful death action.