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Jim Walker's Appellate Team scores a Victory!



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Law360 (May 4, 2021, 5:26 PM EDT) -- A split en banc Dallas appellate court has revived a woman's premises liability lawsuit alleging that an assisted living center's failure to maintain its sidewalks caused her mother's death, holding that a trial court wrongly treated the suit as a health care liability claim with specific statutory requirements. In an 8-5 decision, the full Fifth Court of Appeals in Dallas on Monday reversed a panel's June ruling that a lower court correctly dismissed Christine Faber's lawsuit against Collin Creek Assisted Living Center Inc. The trial court and appellate panel said that because the lawsuit was a health care liability claim under the Texas Medical Liability Act, she was required to file an expert report within 120 days of filing suit and her claim, which she did not do. But the en banc court majority found Faber's lawsuit was a "run-of-the-mill" premises liability case not based on Collin Creek's health care services and, therefore, she was not required to produce an expert report.


Faber sued Collin Creek, which runs the Dayspring Assisted Living Community, in June 2015, claiming her mother, Carmelina "Millie" Smith, died in the spring 2014 because of the business' failure to maintain its public sidewalks. Smith died from head injuries she sustained when she fell from her walker and hit her head on the sidewalk after a wheel got caught in a crack, according to court documents.


"When Faber's claim was dismissed, her petition alleged facts having nothing to do with a health care provider's failure to comply with professional duties and everything to do with the condition of the public sidewalk on the facility's premises," Justice Ken Molberg wrote for the majority. "It was a simple, run-of-the-mill premises liability case, where the instrumentality causing injury was broken concrete."


The five dissenting justices contended that Faber's case was a health care liability claim subject to TMLA standards because a patient care assistant, or PCA, employed by Collin Creek was helping Smith at the time of her fall. Justice Amanda Reichek wrote for the dissenting justices, saying the injury was based on the PCA's decision to transport

Smith in her wheeled walker, which constitutes receiving health care.


Justice Reichek wrote that the trial court and the appellate panel correctly held that Faber's suit should be dismissed because she failed to file an expert report under the TMLA's deadline.


"As stated above, this is not a case where a patient simply tripped on a crack in the sidewalk," she wrote. "In this case, a health care provider chose to use Smith's walker as a wheelchair, and, while transporting Smith, the walker became lodged in a crack, causing Smith to fall."


Faber's first attempt at suing Collin Creek failed in January 2016 when a trial court dismissed the lawsuit after the TMLA's 120-day deadline came and passed, according to Monday's opinion. She originally alleged negligence against the assisted living facility, but later amended her state court petition to include only premises liability claims.


In December 2017, after Faber had won a summary judgment against another defendant involved in the suit, she filed for a new trial against Collin Creek and re-alleged her premises liability claims, according to court documents. Collin Creek moved to dismiss the suit again under the TMLA, and the trial court granted that motion in April 2018. Faber appealed to the Fifth Court of Appeals in July 2018, according to court records.

Justice Reichek wrote in her dissent that Faber's claims against Collin Creek should be treated as health care liability claims because a jury would have to decide at trial whether the PCA's decision led to Smith's death. "A jury will be required to consider more than just whether the crack presented a hazard," the judge wrote. "They will necessarily have to consider the PCA's actions and the risks associated with the choices the PCA made." She added that claims based on a health care provider's departure from acceptable standards of care are health care claims "regardless of whether the plaintiff alleges the defendant is liable for breach of that standard." But the majority rebutted this position, saying an expert report by a health care professional would not be able to address whether the assisted living facility followed the appropriate standards in creating and maintaining its sidewalk at the basis of Faber's claims.


Justice Molberg wrote that the dissent, in reaching its conclusion, left unanswered one "revelatory, self-evident fact: Had it not been for the defective condition of the sidewalk, this lawsuit would not exist." Counsel for the parties did not immediately respond to requests for comment Tuesday.


Faber is represented by James "Jim" Walker; Farid Moghadassi and Rod Khavari of Khavari & Moghadassi Attorneys at Law PC; and Heather Long. Collin Creek is represented by Scott B. Novak and Michael W. Blaise of Lorance & Thompson PC.


The case is Christine Faber v. Collin Creek Assisted Living Center Inc., case number 05-18-00827-CV, in the Court of Appeals for the Fifth District of Texas.


--Editing by Peter Rozovsky.

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