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On-the-job injury

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I got hurt on the job in Dallas Texas.My employer says that I must arbitrate my claim against the company for negligence instead of filing a lawsuit. Can my employer force me to arbitrate a claim instead of letting a jury decide whether my employer was negligent and how much I should be compensated for my damages?

Answer: Yes

If you sign a contract usually at the beginning of your relationship with your employer that stipulates that you must use arbitration as a tool to resolve any dispute including on-the-job injuries against your employer, there is a strong likelihood that a court will force you to arbitrate your claim instead of taking your case in front of a jury.

My office has arbitrated many claims on behalf of injured workers. Employers are very aggressive in their attempt to defend the claim including using summary judgment hearings to dismiss the lawsuit.

Below is a form used to defend the worker from having their case dismissed.

If you have any questions call my office for free consultation. I have an office in Fort Worth and Dallas Texas

ABITRATION ASSOCIATION

CLAIMANT’S RESPONSE TO RESPONDENT’S
NO -EVIDENCE MOTION FOR SUMMARY JUDGMENT

Comes Now, and files her Response to Respondent’s McDonald’s No-Evidence Motion for Summary Judgement and in support thereof states the following:
I.

BACKGROUND

On February ———–, a co-employee engaged in negligent conduct when she tossed a dustpan against a wall that landed on the ground causing the Claimant to contemporaneously trip and fall to the floor. Claimant Zamora suffered significant fractures, multiple surgeries, and has incurred over $279,943.63 in medical bills and other significant economic and non-economic damages from this on-the-job injury.
On the date of the accident, Claimant Zamora was an employee of the Respondent McDonald’s. McDonald’s was a nonsubscriber as defined by the Texas Worker’s Compensation Act and the Texas Department of Insurance. As a nonsubscriber employer, Respondent McDonald’s waived the defenses of contributory negligence, assumption of the risk, and the fellow servant doctrine. See Texas Labor Code Section 403.066. Claimant filed a “nonsubscriber” lawsuit in state district court against her employer, Respondent McDonald’s, based on negligence. The lawsuit was subsequently removed to arbitration by agreement of the parties.
II.
SUMMARY OF THE ARGUMENTS
Claimant has pled both negligent activity and premises liability regarding her negligence claim against the Respondent McDonald’s. The Respondent McDonald’s argues that the Claimant “improperly recast” a premises liability action as a negligent activity claim. This is incorrect. Based on the facts of the case, Claimant Zamora has pled both a negligent activity claim and a premises liability claim. A party can plead alternative or hypothetical theories, allege inconsistent claims or defenses, and allege claims or defenses based on legal grounds, equitable grounds, or both. Texas Rules of Civil Procedure 48. The Respondent McDonald’s has not filed and pursued any special exceptions to inform Claimant Zamora regarding any defects in her pleadings regarding form or substance. Unless a party challenges curable pleading defects by special exceptions, the defects are waived. Crosstex Energy Serv.v. Pro Plus, Inc., 430 S.W. 3rd 384, 395 (Tex. 2004).
Claimant Zamora’s summary judgment evidence in her Response establishes a genuine issue of material fact regarding all the essential elements of a negligent activity claim and premises liability claim. The Respondent McDonald’s requests the arbitrator to ignore the Claimant’s pleading of “ negligent activity” and evaluate the Claimant Zamora’s claim as a “premises liability “ claim only. Based on this erroneous assumption, Respondent’s No-Evidence Motion alleges that Claimant Zamora has no evidence that the Respondent McDonald’s knew or should have known that a condition on the premises (dustpan on floor ) posed an unreasonable risk of harm.
Claimant Zamora’s witness affidavits, oral depositions, and Respondent McDonald’s accident investigation records show that her fall was caused by the conduct of the co-employee Amanda Noe when she negligently tossed a dust pan against a wall contemporaneously causing her trip and fall. The contemporaneous nature of the dustpan falling on the ground and Claimant Zamora’s fall is supported by eyewitnesses and by the supervisor’s investigation where he reports that the dustpan was “equipment” that was being used by an employee (Amanda Noe) at the time of the accident.
In the alternative, Claimant Zamora argues that her summary judgement evidence creates a genuine issue of material fact regarding all elements of a “premises liability” claim.
Based on the evidence and arguments in this Response, Claimant Zamora believes that the arbitrator should deny Respondents No-Evidence Motion for Summary Judgment.
III.

EVIDENCE IN SUPPORT OF RESPONDENT’S MOTION

Claimant Zamora refers to and incorporates the pleadings of the parties already on file. Claimant Zamora also incorporates by reference to this Response the following evidence:
1) Exhibit “A” Excerpts of Claimant Zamora’s deposition;
2) Exhibit “B” Affidavit of Maria Munoz in English;
3) Exhibit “C” Affidavit of Maria Munoz in Spanish;
4) Exhibit “D” Affidavit of Isamar Vitela verifying translation of Munoz affidavit;
5) Exhibit “E” Affidavit of Romelia Aranda in English;
6) Exhibit “F” Affidavit of Romelia Aranda in Spanish;
7) Exhibit “G” Affidavit of Isamar Vitela verifying translation of Aranda affidavit;
8) Exhibit “H” TRCP 193.7 Letter to Respondent regarding use of documents;
9) Exhibit “I” Supervisor’s Accident Report;
10) Exhibit “J” Witness Statement competed by Romelia Aranda;
11) Exhibit “K” Employee Accident Report;
12) Exhibit “L” Surgeon’s Medical Records.

IV.
NO-EVIDENCE SUMMARY JUDGEMENT LAW

Claimant Zamora’s response to a no-evidence motion for summary judgment serves three functions: 1) it supplies evidence to raise a fact issue on the challenged elements, 2) it identifies any procedural defect in the motion, and 3) it presents any other reasons why the summary judgment should not be granted. As a nonmovant, Claimant Zamora has the entire burden of proof once the movant, Respondent McDonald files a no-evidence motion. Texas Rules of Civil Procedure 166 a (i). The burden is on the nonmovant Claimant Zamora is to raise a genuine issue of material fact about the element challenge by the motion for summary judgment. The trial court must resolve all reasonable doubts in favor of the nonmovant Claimant Zamora . Lehrer v Zwernemann, 14 S. W. 775, 777 (Tex- App.-Houston [1ST Dist.] 2000, pet. denied).
To defeat a no-evidence motion for summary judgment, the nonmovant Claimant Zamora must prove there is a genuine issue of material fact on the elements challenged by the movant. See TRCP 166a (I). The notes and comments to the Texas Rules of Civil Procedure 166a (i) state that to defeat a no evidence motion, the nonmovant “is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements”. Saenz v. Southern Un. GasCo., 999 S.W.2d 490, 493 (Tex. App.-El Paso 1999, pet. denied).
To defeat a no-evidence motion for summary judgment, the nonmovant must produce more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. Forbes, Inc. v. Granada Biosciences, Inc. 124 S.W.3d 167, 172 (Tex. 2003). If the nonmovant presents more than a scintilla of evidence on the challenged elements, it is entitled to a trial on its merits. Ridgway v. Ford Motor Company, 82 S.W. 3d 26, 29 (Tex. App. -San Antonio 2002). A nonmovant produces more than a scintilla when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Ford Motor Co.v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
IV.
EVIDENCE CREATING FACT ISSUE
Claimant Zamora testified in her deposition that on February 16, 2013, she tripped and fell over broom or dust pan that had fallen to the floor. See Exhibit “A” Claimant Zamora’s deposition Page 126 line 18 to Page 135 line 16. She was carrying trays in the kitchen when a co-employee named Amanda Noe tossed a broom and dustpan with a handle against a wall and the dustpan fell in her path causing Claimant Zamora to fall violently on the ground. A co-employee named Maria Munoz testified in her affidavit that:
“On February 16, 2013, I was an employee at McDonald’s located in Weatherford, Texas. On this date, I saw an employee named Amanda Noe in the kitchen working the drive thru line with a headset to talk to the customers in their vehicles. I saw Amanda Noe use a broom and a dustpan with a handle to pick up trash from the kitchen floor. After she picked up the trash, I then saw Amanda Noe toss the broom and the dustpan with the handle against the kitchen wall. Immediately after the broom and dustpan with a handle struck the wall, I saw the dust pan with a handle fall in front of Ms. Norma Zamora as she walked by carrying trays. I then saw Ms. Norma Zamora trip and fall as the dustpan with a handle bounced on the floor. I saw Ms. Norma Zamora fall very hard on the floor landing on the right side of her body.”

Please see the Affidavit of Maria Munoz identified as Exhibit “B” in English and Exhibit “C” the same affidavit translated to Spanish.

Claimant Zamora’s fall was also witnessed by co-employee Romelia Aranda. She testified in her affidavit as follows:

” On February 16, 2013, I was an employee at McDonald’s located in Weatherford, Texas. On this date, I was working in the kitchen when I witnessed another employee, Amanda Noe, throw a dustpan or broom in front of Norma Zamora as she walked by carrying trays. I saw Ms. Zamora trip over the handle of the dustpan or broom and she fell to the floor.”

Please see the Affidavit of Romelia Aranda identified as Exhibit “E” in English and Exhibit “F” the same affidavit translated to Spanish.
The fall injured Claimant Zamora’s her right hand, right arm, low back, and other parts of her body. Please find attached as Exhibit “L” a copy of a small portion of Claimant Zamora’s records from Comprehensive Spine who eventually performed surgery on Claimant Zamora.
The Respondent’s supervisor, Mr. Corona, investigated the Claimant Zamora’s accident and completed a “ Supervisor’s Report of Accident. Please see Exhibit “I”. In the description of the accident the supervisor wrote:
“She was walking to the back of the (house) kitchen. She had trays in her hands when she tripped over a dustpan stick. She fell down on her right side. Injury to her right elbow and right hip area.”

Additionally, the report asks the supervisor the following question:

“WAS SUCH EQUIPMENT BEING USED OR WORN AT THE TIME OF THE ACCIDENT ?” Response by supervisor was “Yes, Dustpan was been used by another employee at the time of the incident.”

Attached as Exhibit “J” is the “Employee Witness Statement” of Romelia Aranda where she states that “ Norma was going to the back sink to drop off trays when she fell and tripped with dustpan.”
Attached as Exhibit “K” is the “Employee Accident Report” of the Claimant Zamora where she states “She was carrying trays from the front of the house to the back in the kitchen area. She tripped over a dustpan stick. Fell down on her right side.”
Exhibits “I”, “J”, “K” are authenticated based on TRCP 193.7 Notice Letter exchanged with the Respondent McDonald’s on June 22, 2016. Please see attached as Exhibit “H” a copy of the TRCP 193.7 Notice Letter.

Finally, Maria Elizondo, the manager of the Respondent Donald’s restaurant where the accident occurred, testified in her oral deposition that Mr. Corona was a shift manager and he was responsible for completing any reports of an employee accident that occurred at the restaurant. See Exhibit “M” Maria Elizondo’s deposition-page 44 line 9-12. Maria Elizondo testified that the policy of the store was that brooms and mops were stored only in one location of the restaurant located in the rear section of the building where supplies were kept. See Elizondo’s deposition-page 65 line 6 to page 65 line 17. Claimant Zamora’s accident occurred in the kitchen area which is in a different room. Ms. Elizondo also testified that her investigation confirmed that a dustpan used by Amanda Noe was the cause of Claimant Zamora’s fall. See Elizondo deposition page 45 line 4-11. Finally, Maria Elizondo testified that her investigation revealed no information to contradict the supervisor’s report stating that the equipment being used by a co-employee at the time of the accident was a “dustpan”. See Elizondo deposition page 45 line 12 to page 46 line 11.
V.

ARGUMENT

1. PLAINTIFF’S EVIDENCE RAISES FACT ISSUE THAT DEFEATS DEFENDANT’S NO- EVIDENCE MOTION FOR SUMMARY JUDGEMENT ON THE ISSUE OF NEGLIGENT ACTIVITY

Claimant Norma Zamora’s deposition, sworn affidavits of two independent eyewitnesses, and Respondent McDonald’s accident investigation records raise a fact issue regarding whether Respondent McDonald’s employee Amanda Noe was engaged in a negligent activity at the time of Claimant Norma Zamora’s fall.
A. Conduct v. Condition on the premises
A lawsuit for premises liability is different from one for negligent activity. In Keetch v. Kroger Co. and Timberwalk Apartments, Partners, Inc. v. Cain, the court explained the difference between liability for negligent activity and liability for failing to remedy an unreasonable risk of harm arising from the condition of a premises:
” Recovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity.” Negligence in the former context means simply doing or failing to do what a person of ordinary prudence in the same or similar circumstances would have not done or done. Negligence in the latter context means ” failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about.”

“Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex.1998) (quoting Keetch v. Kroger Co., 845 S.W.2d 262, 264, 267 (Tex.1992)).

Although a “species of negligence”, premises liability cases are predicated on a property possessor’s failure to warn or make safe dangerous or defective conditions on property; negligent activity cases arise from contemporaneous actions or omissions in the conduct of people. De Lago Patners, Inc.v. Smith, 307 S.W. 3d 762,789 (Tex.2010). The common law has recognized that the basis of a premises liability claim is a physical defect or condition on property. See Kallum v. Wheeler, 129 Tex. 74, 101 S.W.2d 225, 229 (Tex.Com.App.1937).
The court decisions below distinguished what is conduct which supports a “negligent activity” and physical conditions that support a “premises liability” claim. Below are examples of negligent activity cases arising from contemporaneous actions or omissions in the conduct of people:
• Injury occurred when box was dropped on Plaintiff’s head while it was being removed from the shelf. Wal-Mart Stores, Inc. v. Garza, 27 S.W.3d 64, 67
(Tex. App. – San Antonio 2000, pet. denied).
• Injury occurred when employee was moving merchandise from one cart to another. Sibai v. Wal-Mart Stores, Inc., 986 S.W.2d 702, 707 (Tex. App. – Dallas, 1999, no pet.).
• Failure to remove ” rowdy” patrons before one such patron allegedly threw a bottle injuring another patron in a theater, E. Tex. Theatres, Inc. v. Rutledge, 453 S.W.2d 466, 467-68 (Tex.1970).
• Failure to warn taxi drivers not to carry guns, Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 524-25 (Tex.1990);
• Independent contractor’s operation of a mechanical pump on property, Abalos v. Oil Dev. Co. of Tex., 544 S.W.2d 627, 628, 631 (Tex.1976);

Claimant Zamora has pled and the witness affidavits, depositions, and investigation records attached to this Response support that Claimant Zamora was injured by or as a contemporaneous result of the conduct of Amanda’s Noe when she tossed the broom and dust pan against the wall which fell in front of Claimant Zamora.
2. PLAINTIFF’S EVIDENCE RAISES FACT ISSUE THAT DEFEATS DEFENDANT’S NO- EVIDENCE MOTION FOR SUMMARY JUDGEMENT ON THE ISSUE OF PREMISES LIABILITY

The Respondent McDonald’s motion relies primarily on the De Los Santos v. Healthmark, Park, No. 06-05-00014-CV, Court of Appeals of Texas, 6th District, Texarkana. In the De Los Santos case, an employee was injured when she slipped on a bottle of hand sanitizer that a co-worker accidentally dropped on the floor. The employer argued that there was no evidence that the employer had actual or constructive knowledge of any condition that posed an unreasonable risk of harm; that the employer failed to exercise reasonable care in maintaining the floor, or that the injured worker’s injuries resulted from the employer’s failure to exercise reasonable care to reduce or eliminate an unreasonable risk of harm. The court stated that in order to succeed in a premises liability lawsuit, the invitee employee must prove (1) that the defendant had actual constructive knowledge of some condition of the premises, (2) that the condition posed an unreasonable risk of harm,(3) that the defendant failed to exercise reasonable care to eliminate or reduce the risk of that harm, and (4) that the defendant’s failure to use such care approximately cause the invitee’s injury.
The facts of the De Los Santos case are dramatically different than the Claimant Zamora’s case. In De Los Santos, the negligent employee did not know that she had dropped the sanitizing bottle while working. She testified that the bottle “could have belonged to her” when questioned after the accident. The court stated that even if the employer’s knowledge of the event is imputed to the employer, the employer will be unaware of the drop bottle based on that knowledge alone. The court found that although an employee was responsible for the bottle being on the floor, it is not enough to show that the employer (or its agents) had knowledge or constructive knowledge that the bottle was there. The Texas Supreme Court has held that knowledge may be inferred by the fact finder because of the length of time that a situation existed, and also that circumstantial evidence of actual knowledge exists when store employees have been working on the device that caused the injury. Keech v. Kroger Company, 845 S.W. 2nd 262, 266 (Tex. 1992) (explaining Coffee .F.W. Woolworth Co., 536 S.W. 2nd 539 (Tex. 1976))
In our case, the negligent co-employee Amanda Noe intentionally tossed the dustpan against the wall that fell into the Claimant’s path as she walked by carrying trays. The affidavits of the witnesses create a fact issue regarding whether the employer, Respondent McDonald’s knew or should of known that the dustpan was on the floor. The court in De Los Santos stated that several different sets of facts may be used to show the existence of knowledge. They include prior, similar incidents and a high risk of harm can support the inference. See Corbin v. Safeway Stores, Inc. 648 S.W. 2nd 292, 296 (Tex. 1983). Also, the court stated that the length of time that a condition has existed can support the inference, as can knowledge that the store employee working on the display which caused the injury. See Keetch, 845 S.W. 2nd at 256; Coffey, 536 S.W.2nd 539.

Examples that illustrate that “premises liability” claims arising from physical conditions or defects on property, include the following cases:
• A pothole in a dirt road allegedly causing a driver’s neck injury, TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764-65 (Tex.2009);
• Ice from a soft drink dispenser making a grocery store floor slippery, Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 407, 409 (Tex.2006);
• Leaking water making a basketball court slippery, City of San Antonio v. Rodriguez, 931 S.W.2d 535, 536-37 (Tex.1996);
• Grapes from a self-service grape bin falling on the floor and making a grocery store floor slippery, Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 297 (Tex.1983).
It is the Claimant Zamora’s position that her evidence in this motion creates a genuine material fact issue regarding whether Amanda Noe had knowledge or should have had knowledge that she created an unreasonably dangerous condition when she tossed the dustpan against the wall. This is a factual inference that can be drawn based on summary judgement evidence presented in Claimant Zamora’s Response. The Respondent McDonald’s No-Evidence Motion for Summary Judgment regarding “premises liability” should be denied. CONCLUSION
The Claimant Zamora’s evidence raises a material fact issue regarding each element of her negligent activity claim and premises liability claim. She has presented “more than a scintilla of evidence” on the challenged elements in Respondent’s No-Evidence Motion for Summary Judgement therefore she entitled to a trial on its merits. Accordingly, the Arbitrator should deny Respondent’s No-Evidence Motion for Summary Judgment as to the Claimant Zamora’s negligent activity and premises liability claim and all other relief she is justly entitled to.
WHEREFORE, ALL PREMISES CONSIDERED, Claimant Zamora requests that this Court deny Respondent’s No-Evidence Motion for Summary Judgment and all other relief that the Claimant Zamora is justly entitled to.

Respectfully submitted,

THE REYES LAW FIRM, P.C.
1300 Summit Avenue, Suite 518
Fort Worth, Texas 76102
(817) 332-1522
(817) 332-6224 fax

By:__________________________________
ERIC R. REYES
State Bar #16794350

CERTIFICATE OF SERVICE

This is to certify that on the ______ day of ______________________, 2016, a true and correct copy of the above and foregoing instrument has been forwarded to all attorneys of record via:
__________efiling.

__________regular mail.

__________certified mail, return receipt requested

__________telephonic document transfer.

______________________________________
Eric R. Reyes