Michael Cowen · Przemek Lubecki
$8,500,000 Verdict. Premises Case. TBI
June 11, 2025 5:30 PM||
On June 5, 2021, Judy Kent and her wife went to a Bee Cave waste transfer station near Austin, Texas. They intended on disposing of lumber and a washing machine at the facility. Personnel directed Ms. Kent to back her pickup truck on a dock. At the edge of the dock there was a 10-foot drop into a steel container.
Ms. Kent backed her pickup truck close to the parking stop as directed. Her wife tried to open the tailgate but it was jammed. Ms. Kent then tried to climb into the bed of the pickup. When she did, the tailgate came open and she fell into the pit. The hit head-first, sustaining a traumatic brain injury as well as aggravation of preexisting neck and back issues.
Ms. Kent was hospitalized for several weeks. She sustained a brain bleed. However, she had what her doctors described as a “miraculous recovery.” Within months she had returned to her job as a highly-paid software executive.
Plaintiffs sued the company that had the license to operate the waste transfer station (Texas Disposal Systems Landfill) as well as the company that provided the employees who actually ran the facility (Texas Landfill Management). Plaintiffs also sued a related company, Texas Disposal Systems, because that company undertook a duty to inspect the premises, provide safety services, and provide safety training.
Defendant claimed that it owed plaintiff no duty because the hazard was “open and obvious. ”Plaintiff defeated summary judgment and a direct verdict by establishing the “necessary use” exception, showing that she had to use the dangerous dock in order to dump her refuse at Defendants’ facility.
Plaintiffs showed that the setup of the facility did not comply with industry standards and EPA guidelines. There was safer options that would have prevented Plaintiffs’ injuries.
Plaintiff discovered evidence that other people had fallen into the pit before her. However, the court excluded those incidents, finding that plaintiff had not met her burden to prove they were substantially similar to her incident. However, Plaintiff was able to introduce videos of two subsequent falls because those were substantially similar and were relevant to: (a) whether the facility was unreasonably dangerous; and (2) whether the danger was open and obvious.
Defendant also claimed that plaintiff had made almost a total recovery from the TBI, and that her neck and back pain were solely due to preexisting conditions.
Plaintiff did not introduce any evidence of past medical bills or lost earnings. Plaintiff did submit a life care plan as well as evidence of pain, mental anguish, and physical impairment.
The trial court granted a direct verdict on gross negligence but denied it as to premises liability and negligent undertaking. The jury found the defendants liable and assessed $8.5 million in compensatory damages ($2.5 million for future medical care and $6 million for non-economic damages). The jury also found Plaintiff negligent, assessing 10% comparative fault against her and 90% on the damages.
The case dealt with the following issues:
- Establishing a premises defect, which is very difficult under Texas law.
- Framing the case to defeat the argument that the danger was open and obvious. Instead of merely arguing that the drop off was dangerous, we argued that the combination of the placement of the parking stop at the edge combined with the lack of instructions to park further back created the danger.
- Sequencing the case. We learned from focus groups that we needed to present the case in the following order:
- Show the dangers
- Teach the rules and standards
- Show examples of safe facilities that complied with the rules
- Show other instances of people falling
- Present the evidence of what happened in our case
4. Overcoming the pre-existing injury defense. We acknowledged that our client had pre-existing neck and back issues. We had our physician life care planner review all of her prior medical records and then compare the number of visits for neck and back pain before the fall to the number of visits after the fall.
5. The importance of knowing the medicine when cross examining experts. We were able to use our knowledge of medicine to get defense experts to give great testimony.
6. Mindset and dealing with a tough judge/adverse rulings.
7. Showing that our client sustained millions of dollars in damages when it appeared that she had a good recovery from the TBI. How we used friend-and-family witnesses to tell our damages story.
8. Dealing with a client who was in denial about her deficits. In fact, she downplayed the deficits in a child custody battle. (Her wife filed for divorce after the injury).
9. Similar incidents. Getting discovery. Admitting them at trial.
10. Representing a gay client in Texas.
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