Hooray for Summer! Whether you are back at your office or still working remotely, you can begin to enjoy summer daydreams like vacations at the beach or mountains, backyard cookouts, swimming pools and $2.00 gas. Like I said, these are daydreams! Hopefully the summer of 2022 will be the first summer in a few that we are free to travel wherever we want without masks. We can be a little more carefree. Speaking of summertime memories, I am going to begin the first annual Fletcher Farley recipe share. With the Fourth of July Holiday coming next month, I thought it would be a good idea to see if people would share their favorite recipes for potato salad, baked beans or a 4th
of July picnic dessert. I would ask for secret BBQ recipes but that is probably getting way too personal. If you want to participate, send in your recipe, along with your name and the company you work for to: firstname.lastname@example.org
. We will try to publish these, if not in time for the Fourth of July Holiday, certainly in plenty of time for family summertime picnics. Speaking of sharing, you may recall the contest announced in our August 2021 newsletter. Our firm has always been known for its great tee-shirts handed out at seminars and other events. To celebrate the firm’s upcoming Thirtieth anniversary, we are having a contest that will award a prize for the client who send us a photograph of the earliest tee-shirt in their possession. We will announce the winner on our Thirtieth anniversary, August 2, 2022. Have a great June!
Data Breach and its Effect on Litigation
Any company doing business in Texas that experiences a data breach by law must report the breach to any individuals whose data was or is reasonably believed to have been acquired by an unauthorized person. If the data breach affects more than 250 Texans, the breach must also be reported to the Texas Attorney General. Any reporting must occur no later than 60 days after the company determines the breach occurred.
A data breach encompasses more situations than just an external bad actor remotely hacking a company’s network from a dark basement as popularized by Hollywood. Data breaches include malware attacks, malfunctions, insider data breach, data theft by an employee, ransomware, and employee mistakes. If any of these lead to an individual’s sensitive personal information or private health information being accessed by unauthorized recipients, a data breach has occurred. Sensitive personal information includes identifiers such as an individual’s social security number or driver’s license in combination with their last name and first initial. A file that contains a picture of an individual’s driver’s license, or notes on a claimant’s medical treatment after an accident would qualify as sensitive personal information and private health information, respectively.
Under the above rules, companies that possess sensitive personal information or private health information of their clients and customers, must notify those clients and customers if the company suffers a data breach. This requirement probably already occurred to you. What may not be immediately apparent however, is in an adversarial litigation context, a company in possession of information about an opposing claimant, Co-Defendant, or Plaintiff, would be required to notify that claimant or plaintiff if the company suffers a data breach, and sensitive personal information or protected health information is exposed. Insurance adjusters and claims specialists in particular may have information about claimants and plaintiffs, either gathered in pre-suit investigations or during the discovery process by defense counsel, that would qualify as sensitive personal information or private health information.
Everyone, individuals and business entities included, hope they never suffer a data breach. However, if one does occur you need to get on top of the situation quickly to meet the 60-day notification requirements. Failure to provide notification of a data breach as required by Texas statute can result in the Texas Attorney General levying fines against the company that failed to provide notice. The fallout from a data breach can be mitigated, but it requires planning. If the above scenario of a data breach exposing information about an opposing party gathered pre-suit or during litigation were to occur, defense counsel will need to be notified promptly, so there is time to evaluate the exposure and act prior to the 60-day notification period expiring.
Doug Fletcher, David Colley, and Richard Harwell successfully defended the granting of summary judgment to the client and subsequent appeal in a Dram Shop case. The plaintiffs had filed suit against the client’s establishment, alleging that the establishment had overserved one of its employees and a customer. The customer had asked to see the employee, who was on duty at the time. After drinking and talking, the two allegedly became severely intoxicated, at which point an argument broke out. The customer struck the employee who hit his head on the ground and later died of his injuries.
On behalf of the deceased employee and themselves, the plaintiffs sued the client for wrongful death, negligence per se, and negligent hiring, supervision, and retention. In addition to overserving alcohol the plaintiffs argued the client failed to provide adequate security. We filed special exceptions on behalf of the client, asserting that the plaintiffs were limited to a Dram Shop liability claim. After the trial court granted the special exceptions, we filed a motion for summary judgment due to the lack of evidence of the Dram Shop elements and moved to strike the plaintiffs’ evidence. The trial court struck the plaintiffs’ evidence and granted the motion for summary judgment.
On appeal, the plaintiffs argued that the Dram Shop Act did not apply, asserting that their claims were not covered by the Dram Shop Act. This was due to the decedent’s status as an employee, relying on two Supreme Court decisions in which the Supreme Court had ruled there was a separate duty to employees independent of the Dram Shop Act. We argued that the decisions were distinguishable and that the Dram Shop Act had been amended since the two decisions had been issued, rendering them inapplicable to the facts of this case.
The El Paso Court of Appeals agreed and adopted much of our brief, then ruled that the trial court correctly granted our special exceptions and dismissed the common law negligence claims. The appellate court then concluded that there was no evidence of the Dram Shop elements. Specifically, the court concluded that there was no evidence that it was apparent to the client that the individuals were obviously intoxicated to the extent they presented a danger to themselves or others, or that the intoxication was a proximate cause of the damages suffered. Finding no evidence of the Dram Shop elements, the appellate court affirmed the granting of summary judgment and dismissal of our client.
In the Court of Appeals’ opinion, there was emphasis on proving all of the elements to establish liability under the Dram Shop statute. The first element, with which everyone is familiar, is there has to be evidence that at the time the individual was served that he was obviously intoxicated which, of course, means the person presented a danger to themselves or others.
The second element, which most people forget, is that it has to be proved that the intoxication was a proximate cause of the damages suffered. In other words, it is not just enough to show that the person was intoxicated at the time of the accident which caused the injuries or death, but that the person’s intoxication was a proximate cause of the actual accident. Normally, when it involves the intoxicated person operating an automobile the proximate cause is assumed, although it really should not be. When you have the intoxicated person involved in activity which results in injury or death (or the injury or death to another person) the potential defense strategy could be to show that the person was going to do this, intoxicated or not. Even when a vehicle is involved, perhaps the claimants or plaintiffs are going to need to use an expert on intoxication to indicate that the person’s actions and the resulting accident were caused by the intoxicated state. In the future we will keep a close eye on this in the numerous Dram Shop cases that we defend.
Honoring 30 Years with Acts of Kindness
This year marks 30 years of delivering legal services for Fletcher Farley. We know the importance of community and our team sees this as our way to give back to all of those that has shaped us into what we are today.
We look forward to continuing our service to our community alongside several local organizations throughout the summer, helping foster organizations for animals and back-to-school projects for kids! Stay tuned!!
Cinco de Mayo!
We celebrated Cinco de Mayo with a little piñata fun and cupcakes! This group loves to have fun!!
6/1 - 1 year
6/4 - 15 years
6/7 - 17 years
6/8 - 13 years
6/13 - 4 years
6/15 - 7 years
6/21 - 1 year
6/25 - 8 years
6/29 - 7 years
Thank you for being an essential part of our success. Happy Anniversary!
- 6-8 ears corn
- 2 Tablespoon olive oil
- 1/2 red onion , diced
- 1/2 red bell pepper , diced
- 1 avocado , seeded, peeled and chopped
- 4 Tablespoon olive oil
- 6 Tablespoon apple cider vinegar
- 1 teaspoon sugar
- 1 teaspoon dijon mustard
- juice from 1 lime
- salt and pepper
- Whisk dressing ingredients together and set aside.
- Add 1-2 inches of water to a large skillet. Bring to a boil. Add shucked corn ears and cook for 3-4 minutes, rotating to cook on all sides. Drain water.
- Heat grill on medium-high heat. Brush corn lightly with olive oil and grill for a few minutes, rotating it as it cooks, until golden on all sides.
- Allow the corn to cool and then cut corn off of the cob and add to a bowl. Add remaining salad ingredients and drizzle with desired amount of dressing (you may not use it all). Toss to combine. Refrigerate until ready to serve.
If you want more information or have questions, please contact:
Firm Managing Partner
Austin Office Managing Partner