Slip and Fall Procedure Flashcards
- After Trey files his lawsuit, what documents must be served upon the defendants in order to compel them to file an answer? Explain fully.
Trey, as the plaintiff, must serve his pleading, including a concise statement of the cause of action and any supplemental materials, on the defendants, and Trey or his attorney must sign the pleading. In addition, Trey must request a citation to be issued by the clerk of the court and the citation must also be served on the defendants.
- What pleading should Home file to contest the filing of the suit in Dallas County and when should the pleading be filed? Explain fully.
Before, or concurrently with, any other pleading or motion filed in the case, Home must file a motion to transfer venue stating the county that has proper venue. It must be filed within 20 days of service of process, must include the legal and factual basis for the transfer, and may be accompanied by supporting affidavits.
- If the court decides to grant relief to Home regarding the county of suit, what county or counties constitute a proper location for the suit and why? Explain fully.
In this case, a proper venue would be Collin County because it is where the incident took place and where Home has its principal office. In addition, venue would also be proper in Parker County because Ice has its principal office there.
- Ice alleges that the district court has no jurisdiction over the parties and the subject matter of the suit. Ice moves the court to dismiss the case for lack of jurisdiction. How should the court rule? Explain fully.
The court should deny the motion because the incident occurred in Texas, and Texas district court has personal jurisdiction over the parties (all are Texas residents) and subject matter jurisdiction lies in Texas district court unless Trey is suing for $500 or less
Trey’s original petition is very broad and makes general allegations of negligence against both defendants.
- What pleading should the defendants file to require the plaintiff to re-plead his case with more definite and specific factual allegations? Explain fully.
The defendants should file a special exception in writing, pointing out the particular pleading objected to and its specific insufficiency. If the exception is granted, Trey must amend his pleading to specifically plead the facts upon which he relies to support his negligence claim, or risk the claim being struck or the case being dismissed.
Home is actually a Texas corporation and not a sole proprietorship as pleaded by Trey.
- How should Home give notice to the parties and the court that it is a corporation and intends to seek the protection of that status for its shareholders? Explain fully.
Home should file a verified pleading stating that it is a corporation and not a sole proprietorship, and that it was sued in the wrong capacity. The pleading must be verified by affidavit.
Trey and his attorney want to know if Home and Ice have liability insurance to cover any of the claims brought in this suit. Ice’s attorney informally tells Trey’s attorney that Ice has no insurance. Home’s attorney makes no reply about insurance coverage.
- What document can Trey serve to determine whether either defendant is covered by insurance? Explain fully.
Trey can serve a request for disclosure of insurance agreements on Home and Ice. The defendants may not assert any objections to this simple request for disclosure.
By way of interrogatories, Home inquires of Trey whether he has sustained other accidental personal injuries, before or after the incident made the basis of the lawsuit. Trey objects to the interrogatory as being irrelevant. Home sets the objection for hearing.
- How should the court rule? Explain fully.
The court should overrule Trey’s objection because all relevant evidence is admissible unless excluded by a specific rule or law. In this case, other injuries sustained by Trey may be relevant to determining the extent of the damage caused by the accident in question, so the court should rule that Trey must respond to the interrogatory.
Relevant evidence is:
has any tendency to make any fact of consequence more or less probable than it would be without the evidence.
To be relevant, evidence must be both material (related to an issue in the case) and probative (having the tendency to prove or disprove a proposition)
Ice believes that Trey’s suit against Ice is barred by the statute of limitations. Ice does not want to disclose this defense for strategic reasons.
- Must Ice raise this issue before the case goes to trial and if so, how should Ice assert the defense of limitations? Explain fully.
Ice must raise the issue of the statute of limitations before the case goes to trial. The statute of limitations is an affirmative defense that must be raised in the answer or it is deemed waived. However, the answer can be amended to add the affirmative defense without leave of course up to seven days before trial.
Following Trey’s fall, Home requests that Ice move the ice machine to an area of the store where there is less customer traffic. Trey plans to offer this fact into evidence to prove knowledge of a dangerous condition. Home and Ice believe that the evidence is not admissible and is prejudicial.
- What document should Home and Ice file to bring this matter to the attention of the court and to keep this matter from being presented to the jury? Explain fully.
Home and Ice should file a motion in limine and request a hearing on whether the court should exclude any mention of the ice machine in the proceedings without first approaching the bench.
They should object again if the matter arises during trial in order to preserve error for appeal.
- Should Trey’s counsel attempt to offer the fact of the post -accident re-location of the ice machine into evidence, what substantive objection should Home and Ice make regarding this evidence? Explain fully.
If Trey’s counsel attempts to offer the fact of the post-accident re-location of the ice machine into evidence, Home and Ice should object, citing the rule that subsequent remedial measures are not admissible to prove negligence, culpable conduct, defective product or design, or the need for a warning.
In his first amended original petition, Trey alleges direct acts of negligence and alleges claims of negligent hiring, staffing, and supervision against Ice due to its high employee turnover rate. Discovery is complete and Trey has produced no evidence to support the negligent hiring, staffing, or supervision claims.
Ice fears this pleading will be prejudicial to its defense.
- What pleading should Ice file to attack these allegations of negligent hiring, staffing, and supervision, so as to remove them from the court’s and jury’s consideration? Explain fully.
Ice should file a no-evidence motion for summary judgment on the issues of negligent hiring, staffing, and supervision.
The court must grant the motion unless Trey produces evidence raising a genuine issue of material fact.
Trey requested a jury trial and paid a jury fee. Home and Ice requested a jury trial. Trey filed a motion to remove the case from the jury docket and place it on the non-jury docket. Home and Ice object to the motion.
- How should the court rule? Explain fully.
The court should rule in favor of Home and Ice and keep the case on the jury docket because once Trey has made a jury demand, he cannot withdraw the demand over the defendants’ objections.
The parties attended a mediation conference. The mediation failed. During the mediation, an Ice representative disclosed that the machine in question was old and needed repair. Trey subpoenas the mediator to testify about the disclosure at trial. The mediator files a motion to quash the subpoena.
- How should the court rule? Explain fully.
The court should quash the subpoena because information exchanged in mediation is generally confidential and inadmissible in Texas.
