Trip and Fall in Private Hospital Cafeteria Flashcards
- Assuming Mercy and Prime contest venue, what are the counties of proper venue for Wilda’s lawsuit? Explain fully.
The counties of proper venue are Travis County and Dallas County because Travis County is where a substantial part of the events took place that gave rise to the action, and Dallas County is where Prime has its principal place of business.
- Wilda files suit against Mercy and Prime, and each defendant is served pursuant to the Civil Practice and Remedies Code. What pleading must Mercy and Prime file in order to avoid the entry of a default judgment against them, and when must that pleading be filed? Explain fully.
To avoid the entry of a default judgment, Mercy and Prime must file an answer by 10:00 a.m. on the first Monday after the expiration of 20 days from the date they were served with process.
- Wilda sues “Prime Pizza” as a named defendant. The shareholders of Prime Pizza, Inc. want to seek the protection of their corporate entity and avoid individual liability, if any. What pleading must Prime file in order to assert its corporate status and protect its shareholders from individual liability? Explain fully.
Certain issues, such as whether a party is incorporated, must be specifically raised in the answer to put the burden of proof on the plaintiff.
Prime must file a special sworn denial asserting that it is incorporated and that Wilda sued Prime in its wrong capacity because she named “Prime Pizza” as the named defendant, not “Prime Pizza, Inc.”
- Following the accident, Wilda accepted free medical care in the emergency room of Mercy. She signed several documents while she was in the emergency room. Mercy believes that one of these documents releases all of Wilda’s claims. What pleading must Mercy file to bring this alleged defense to the attention of the court, and when should it be filed?
Mercy must affirmatively plead the defense of release in its answer or amended answer by alleging that Wilda signed a document that released Mercy of all of Wilda’s claims.
Because amended answers must be filed within seven days of trial, Mercy must assert the release defense within seven days of trial.
- Prime believes that Big is responsible for the accident because Big’s employees had a chance to pick up the sign or warn Wilda of the sign. Big is now in bankruptcy. What pleading must Prime file in order to secure a jury question on Big’s liability, if any, for the accident? Explain fully.
Prime may file a motion for leave to designate Big as a responsible third party (RTP) because any person alleged to have contributed to causing in any way the harm for which recovery of damages is sought can be designated as a RTP.
Alternatively, Prime could serve a third-party petition on Big to add Big as a third-party defendant.
- Name five types of discovery authorized by the Texas Rules of Civil Procedure.
The Texas Rules of Civil Procedure authorize the following types of discovery: requests for disclosure, requests for production, interrogatories, requests for admission, and depositions.
- Mercy’s lawyer tells Wilda’s lawyer that he knows what caused the accident because he has the names and addresses of five or six witnesses to the accident. What documents can Wilda serve upon Mercy to secure the names of potential witnesses to the accident? Explain fully.
Wilda can serve upon Mercy a request for disclosure to obtain the name, address, and telephone numbers of potential persons having knowledge of the relevant facts, including potential witnesses to the accident. Mercy cannot object.
Wilda can also request this information by serving interrogatories or requests to produce documents.
Prime’s attorney conducted an investigation of the accident and interviewed several potential witnesses to the accident. Although no statements were taken, the attorney for Prime made and kept copious notes about these interviews. Wilda serves a request for production upon Prime seeking production of the attorney’s notes.
- Prime objects to the request for production of its attorney’s notes as being protected from discovery. How should the court rule? Explain fully.
Prime’s attorney’s interview notes likely are considered undiscoverable core work product because they may contain the attorney’s mental impressions, opinions, conclusions, or legal theories.
Therefore, the court should sustain Prime’s objection to the request for production.
- Mercy serves 30 requests for admissions and 30 interrogatories upon Wilda.
Wilda objects to the requests for admissions and interrogatories because the number of admissions and interrogatories served is in violation of the Rules of Civil Procedure. How should the court rule on Wilda’s objections to the request for admissions and interrogatories? Explain fully.
Each party is limited to 25 written interrogatories, but is not limited in the number of requests for admissions they can make.
The court should sustain Wilda’s objection to the number of interrogatories, but overrule her objection to the request for admissions.
- Prime’s store manager took several photographs immediately after Wilda fell. Wilda serves a request for production on Prime seeking production of the photographs. Prime asserts that the photographs are privileged and not subject to production under the investigatory privilege. How should the court rule on the assertion of privilege? Explain fully.
The photographs taken by Prime’s store manager do not fall under any privilege recognized by Texas.
Thus, a court should deny Prime’s assertion of privilege because the photographs taken do not fall under any privilege and are subject to discovery.
- Mercy serves interrogatories on Wilda seeking the names and addresses of any and all medical providers from whom she sought treatment for the ten years immediately preceding the accident. Wilda objects to the interrogatories on the basis of an invasion of her privacy, immateriality, and relevancy. How should the court rule? Explain fully.
A party can discover any matter that is not privileged and is relevant to the subject matter of the pending action, even if the information will be inadmissible at trial but may lead to the discovery of admissible evidence. Wilda’s medical history is relevant and subject to discovery because the lawsuit involves a personal injury claim by Wilda.
- Wilda’s deposition reveals that she was talking on her cell phone when the accident occurred.
What pleading should Mercy and Prime file in order to support a jury question on Wilda’s responsibility, if any, for causing the accident? Explain fully.
Because contributory negligence must be affirmatively pled, Mercy and Prime should file amended answers at least seven days before trial to allege that Wilda was comparatively negligent in causing the accident because she was talking on her cell phone when the accident occurred.
- Quick Clean was an independent contractor whose job was to clean the hospital cafeteria twice a day. In the ordinary course of its business, Quick Clean kept records of all of its activities. Wilda obtains copies of the business records of Quick Clean and a business records affidavit. Wilda advises the parties that she plans to use them as pre-trial and trial evidence. Mercy and Prime object on the basis that the “records” are hearsay as to them, although they could be used against Quick Clean. How should the court rule? Explain fully.
The Quick Clean records are admissible against all defendant under the business records exception to the hearsay rule because the records were kept in the ordinary course of Quick Clean’s business, the making of the record was a regular practice of its business, and the record was made at or near the time of the incident by someone with knowledge.
- After discovery is complete, Mercy believes that there is no evidence that it is factually or legally liable for the accident and injury to Wilda. What pleading should Mercy file to bring to the court’s attention the issue of no factual or legal basis for Wilda’s claims against Mercy? Explain fully.
Mercy should file a “no-evidence” motion for summary judgment, putting the burden on Wilda to present evidence raising a genuine issue of material fact.
Mercy could also file a traditional motion for summary judgment, but would have the burden of showing there is no genuine issue of material fact and that she is entitled to judgment as a matter of law.
- During Mercy’s investigation of the accident, it discovers a written statement given by Jane (a Prime manager) to the hospital, that she had also slipped on the sign and told the Prime maintenance department that the sign was a problem. Wilda seeks production of Jane’s statement. Prime objects to the production of the statement because: (1) Jane was not authorized to give a statement and therefore it cannot be admissible against Prime; and (2) the statement is privileged because it was given during an internal investigation by Prime. How should the court rule? Explain fully.
The court should overrule Prime’s objections because, even if she was not authorized to give a statement, Jane’s statement was made with personal knowledge is relevant and material to Prime’s notice of the dangerous condition.
The statement does not fall under any privileges recognized in Texas simply because it was made in an internal investigation.
