TORT LAW

FALL 2009

Smith v. O’Donnell, W.L. 1817399; LEXIS 455 (Tex. 2009)

Legal Malpractice; Privity; Suit by Executor of Client’s Estate: The plaintiff was the executor of the estate of a former client of the defendant law firm. Years prior to the client’s death, the client served as the executor of his deceased wife’s estate. He received legal advice that suggested that he treat certain property as separate instead of community property, which he did. The children from this marriage, therefore, failed to receive certain sums to which they claimed an entitlement. After the client’s own subsequent death, the children sued the client’s estate because of this improper allocation of the marital property. The client’s estate settled this lawsuit brought by the children. After the settlement, the client’s estate (through its executor) filed the instant suit for legal malpractice against the law firm that had given the previous advice claiming as damages the sums the estate paid to settle the childrens’ claims. The trial court granted a summary judgment which was affirmed by the intermediate appellate court on the grounds that there was the absence of privity between the executor of the client’s estate and the law firm which meant that the law firm had no duty toward the non-client plaintiff in a case of alleged legal malpractice (relying upon the Texas Supreme Court’s prior decision in Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996)(suit by third parties claiming they were intended to be named beneficiaries in decedent’s will negligently drafted by lawyer dismissed due to lack of privity)).

Held: By a vote of 5-4 the Texas Supreme Court reversed the summary judgment and held that the executor of the client’s estate, who stands in the shoes of the deceased client, did have privity with the law firm, that the client’s claims for purely economic losses from the alleged malpractice survived the client’s death, and that summary judgment was improperly granted. The Court distinguished the Barcelo case because there the plaintiffs lacked any privity with the law firm and the Court had concerns about permitting strangers to split the lawyer’s duties between the client and the third parties. The Court reasoned that these concerns were absent in this situation because the malpractice claims were not brought by strangers but by the executor suing in the shoes of the deceased client. The Court also held that this case was more akin to the Court’s decision in Belt v. Oppenheimer, Blend, Harrison & Tate, 234 S.W.3d 780 (Tex. 2006) in which the court permitted the executor of a client’s estate to sue the law firm that negligently drafted the client’s will. The Court reasoned as follows: “[Defendant] contends Barcelo bars all legal malpractice suits brought by non-clients, with the exception of estate-planning malpractice claims brought by executors, like that in Belt. To adopt the rule [Defendant] suggests would place us alone among the states, and would unnecessarily immunize attorneys who commit malpractice. None of the concerns we voiced about third-party malpractice suits apply to malpractice suits brought by an estate’s personal representative. The threat of executor lawsuits will not impede the attorney-client relationship, because the estate’s suit is based on injury to the deceased client, as opposed to any third party. The estate’s suit is identical to the one the client could have brought during his lifetime. An estate’s interests, unlike a third-party beneficiary’s, mirror those of the decedent.”

Freeman v. U.S., 556 F.3d 326 (5^th Cir. 2009)

Sovereign Immunity; Federal Tort Claims Act; Discretionary Function Exemption: This was a consolidated action involving three separate claimants bringing wrongful death tort actions against the United States for negligently failing to implement the dictates of the federal National Response Plan (“NRP”) in the days and weeks following the Hurricane Katrina disaster in New Orleans. Each of the decedents died in the few days following the hurricane and their separate lawsuits contended that the United States negligently failed to provide sufficient disaster relief which led to their deaths. The United States obtained a dismissal of the suit from the trial court on the grounds that the FTCA (28 U.S.C. § 1346) did not operate to waive the government’s sovereign immunity because the challenged actions of the government were within the Discretionary Function Exemption from the FTCA’s waiver (28 U.S.C. § 5148). Held: The dismissal for lack of jurisdiction was affirmed on the grounds of sovereign immunity not being waived. The Fifth Circuit held that the claimants failed to identify any nondiscretionary functions by the government. The NRP expressed broad goals but did not prescribe specific mandatory duties on the part of the government, leaving policy-making choices to the involved federal agencies. Thus, the government’s various decisions regarding how to provide disaster relief were discretionary functions exempt from the waiver of sovereign immunity contained within the FTCA.

City of San Antonio v. Pollock, W.L. 1165317; LEXIS 292 (Tex. 2009)

Benzene Pollution; City Operated Waste Disposal; Taking of Property; Nuisance; Expert Testimony of Causation: The plaintiffs were property owners who lived near a city operated waste disposal site. The plaintiffs proved that the city was negligent in its maintenance of the facility in permitting benzene to escape and to contaminate the adjacent properties. The plaintiffs sued for personal injuries to their daughter who contracted leukemia allegedly from her exposure to the benzene and also for their reduction in property values due to the conduct of the city that amounted to a “taking.” The jury found in favor of the plaintiffs on both sets of claims and awarded actual and exemplary damages of nearly $20 million. The intermediate appellate court affirmed as to the actual damages but reversed the exemplary damages. Held: The Supreme Court considered the various expert witnesses plaintiffs called to trial to prove that the daughter was exposed to sufficient levels of benzene to have caused her leukemia and concluded that their testimony was the “kind of naked conclusion that cannot support a judgment.” With the respect to the constitutional taking property damage claim, the Supreme Court held that while the city was guilty of negligence, there was neither evidence nor any findings that the city acted intentionally in permitting the leaks—that is, the city was not “substantially certain” that its conduct would lead to the benzene leak. In fact, the evidence demonstrated that the city did engage in some efforts to try to prevent such leaks. Because the city did not have substantial certainty that its conduct would lead to property harm, the Texas constitution’s provisions did not alter the city’s immunity from an ordinary nuisance claim.

Columbia Rio Grande Healthcare v. Hawley, W.L. 1567176; LEXIS 323 (Tex. 2009)

Medical Malpractice; Loss of Chance; Jury Instructions: The plaintiff was a patient at the defendant hospital where she had a section of her colon removed and sent to the pathology department. The pathology report confirmed a diagnosis of cancer. Contrary to hospital policy, there was some evidence that the hospital failed to place the report in the hands of the patient’s physicians, such that she was discharged from the hospital without being alerted to her cancer and without her physicians being aware of this condition. The following year when receiving different medical treatment, she finally discovered that she had cancer. At that time, her cancer was terminal (though at trial she was still alive). In the case against the hospital, the jury found that the hospital was negligent in failing to ensure that the doctors and the patient were aware of the cancer at the time of the discharge and that this negligence was a proximate cause of the plaintiff’s imminent death. The hospital argued to the Supreme Court on appeal, among other things, that the trial court had erred when it rejected the hospital’s proferred jury instruction as a supplement to the typical pattern instruction on proximate cause. The hospital’s tendered instruction stated: You are instructed that [plaintiff] must have had a greater than fifty percent (50%) chance of survival on [the date of the negligence] to be a proximate cause of injury to [plaintiff].” Held: The Supreme Court reversed the judgment and ordered a new trial in which the loss of chance instruction should be given to the jury. The Supreme Court reaffirmed its prior decision in Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 400 (Tex. 1993) to abide by the traditional rule (rejected in many states now) that, in instances where the plaintiff had already suffered injury and then a physician failed to provide adequate treatment for the preexisting injury, the physician only was liable for the ultimate damages if the plaintiff showed that adequate treatment would have “probably” changed the outcome—in others words, that the preexisting injury would have been cured “but for” the doctor’s negligence. The Supreme Court rejected the plaintiff’s argument that this law was already implicitly contained within the pattern instructions on proximate cause and that it was further unnecessary because the hospital’s attorney made these very arguments to the jury. The Court stated that the requested instruction would “not have been redundant . . . would have provided to the jury the standard it was required by law to apply in making its finding on a hotly-contested issue” and that failing to give the instruction from the court’s perspective “asks too much of lay jurors, untrained in the law, to distill the correct Texas legal standard for loss of chance from the general proximate cause instruction given by the trial court.”