Happy Anniversary!  Four years ago this month, we embarked upon Tilting The Scales. Even more amazing, this month we reach our 100th posting milestone!

Passion. We discovered our passion to deliver thought provoking, humorous and, hopefully, useful articles designed to assist you in your business as well as answer those nagging legal questions which you have always pondered.  After publishing 100 articles, we have learned a few things …

  1. Sex sells – Using the word “sex” in the title always gets more attention
  2. Social networking stories are always a hit
  3. Many times the truth is stranger than fiction
  4. Texas and Federal laws and regulations often lend themselves to humorous subject matter
  5. Again, “sex” really does sell! 

Now What? Mid-month posting of short, current event articles is new. The customary monthly email summary of articles will continue. Subscribe to the blog via email or RSS to see them all! 

Facebook! For those Social Media and Facebook fans, please “LIKE” our Tilting The Scales Facebook page and consider following us on Twitter (@cleveclinton).

THANK YOU! Thank you for four great years! Let’s continue this journey together as we Tilt the Scales in Your Favor.

Fearing that her beautiful landscaping will wither away from lack of water and feeling shafted by the ceaseless torrent of water usage limitations imposed by her city, Misty Spring is thinking about drilling a well in her own backyard. But does Misty own the water under her land  and can she drill a well for her personal water uses?

Maybe. Although Misty must check the rules and regulations of any number of possible authorities, with a little persistence she may be able to secure permitting for a licensed operator to drill a water well on her property; however, the well cannot be used for Domestic (household) use or for consumption by the public.

Texas Water Ownership and Usage. If Misty is already buying her water from someone else, she is subject to that seller’s regulations. For example, the City of Plano and most other Texas cities have ordinances that regulate, among other things, watering yards during drought conditions. In some cases, the determination of a city’s water restrictions is dictated by an even larger authority like the North Texas Municipal Water District, which currently is imposing its Stage 3 Water Conservation and Drought Contingency and Water Emergency Response Plan on all of its member cities, including Plano.

What about Misty’s water under her property? Generally speaking, each Texas landowner is regarded as having absolute title to the water beneath their land, much like ownership of minerals like oil and gas. The only “catch” of ownership is that it must be considered in connection with the law of capture and is subject to legislatively approved regulations. So, yes, it is likely that Misty can drill a well on her property – so long as it does not violate the rules of the authority selling her the water or the rules of the authority which the legislature has approved to regulate either the water under her property or her surface uses.

Tilting the Scales in Your Favor. Who are “the authorities” that Misty should contact? If Misty’s property is within an incorporated city, she should check there first. She should also check whether her property has any deed restrictions or if she is in a property owners association that would limit or prohibit drilling on her property. Depending upon where she lives, and particularly if she is in a more rural area, Misty should determine if she is subject to a groundwater conservation district that regulates water production from underground reservoirs. Typically such districts address water supply needs, management goals and the amount of water estimated to be used and recharged annually within the district. To address those issues, the groundwater supply district may regulate the spacing of water wells and limits on the production of water produced based upon the size of the tract.

For more information on the ownership, the evolution of Texas water rights, and the emerging authority of groundwater control districts in Texas, check out the this year’s Texas Supreme Court decision of The Edwards Aquifer Authority and the State of Texas v. Burrell Day and Joel McDaniel.

Herb Rice is looking to buy a new vehicle for his growing farm operations.  He has his eye on a 2012 Ford F-150 pick-up truck with a cab seating capacity of three.  During planting season, Herb routinely transports up to seven workers between his fields.  Accordingly, some workers will have to ride in the back of his pickup.  Is transporting people in the bed of a pickup truck illegal in Texas?

It depends (we seem to say that a lot).  There are no Texas laws that restrict Herb from transporting adults. It is illegal to transport anyone under the age of 18 in the bed of a pick-up.  However (as almost always), there are several exceptions which permit even children in Texas to ride in the bed of a pickup truck:

  1. if the pickup is the only vehicle owned or operated by members of the household; or
  2. in an emergency situation; or
  3. in connection with a hayride or parade; or
  4. on a beach; or
  5. if they are a farm worker and are being transported from one field to another on a farm-to-market road, ranch-to-market road or county road outside of a municipality.

An offense under Texas Transportation Code 545.414 is a misdemeanor punishable by a fine of between $25 and $200.

A little Texas trivia:  The terms Farm-to-Market Road and Ranch-to-Market Road indicate roadways that are part of the state’s system of secondary and connecting routes, built and maintained by the Texas Department of Transportation.  This system was established in 1949 as a project to provide access to rural areas. The system consists primarily of paved, two-lane roads. Generally, roads found west of US 281 (or Interstate 35 in some locations) are designated Ranch to Market Roads, while those located east of US 281 are designated Farm to Market Roads.  Texas’ first Farm-to-Market road connected the town of Mount Enterprise with the former community of Shiloh in Rusk County.

It’s a beautiful Saturday morning at the swanky Bushwood Country Club.  Carl Spackler, the greens keeper, has done a remarkable job of ridding Bushwood of its recent gopher problem, and the course is in immaculate shape for the club championship.  Al Czervik, a member of the day’s first foursome, approaches the first tee box, carefully places his ball on the white tee and envisions his perfect 300-yard drive.  But, as Al begins his backswing, he notices a sharp pain in his chest and then collapses from a heart attack.  Having taken CPR in high school many years ago, Ty Webb rushes over to help his fallen friend.  After administering CPR for 5 minutes, the paramedics finally arrive and transport Al to an area hospital.  Although Al survives the heart attack, he suffered two broken ribs and a punctured lung as a result of Ty’s flawed CPR techniques.  Is Ty potentially liable for Al’s injuries?

No. In adopting the “Good Samaritan Law,” Texas seeks to encourage bystanders to render medical assistance when an emergency exists and to reduce their hesitation to assist for fear of being sued.  Texas’ Good Samaritan Law maintains that if, as a result of an accident or other emergency, Ty acts in good faith to administer emergency care, then he will not be liable to Al for civil damages for any act performed during the CPR unless he is willfully or recklessly negligent.  An important exception to The Good Samaritan Law is that it does not apply to emergency care given by someone who acts with an expectation of receiving a fee or payment (e.g. a physician in a hospital E.R.).

Does a person have a legal obligation to render assistance to a person in danger?  Stay tuned.

Rocky Haire (the actual name of an attorney in town who gave permission for it to be used in this article) is thinking about opening his own small business Fine and Dandy Confectioners. He is considering purchasing medical and wage benefits for his employees because he expects the 8-10 new employees will stack crates head high, lift 25-pound bags of flour in awkward positions from slippery floors and sometimes access ovens without protective gloves. Is Haire required to buy workers’ compensation insurance in Texas?

Texas is the only state where having workers’ compensation insurance is not mandatory. Fine and Dandy Confectioners can “opt out” of the workers’ compensation system. If a business has workers’ compensation, it is protected from most lawsuits arising from on-the-job injuries because workers’ compensation benefits are the worker’s “exclusive remedy.” Yet, other insurance products besides workers’ compensation policies also provide injured workers disability and medical benefits that some business owners find are more cost effective for them. Rocky can elect not to have “the shield,” so-called because it is an employee’s exclusive remedy under a workers’ compensation plan. If Fine and Dandy elects to “go bare” without workers’ compensation insurance, then prove of only some negligence by the company is sufficient for a worker to collect a judgment against Fine and Dandy. Should Rocky and Fine and Dandy buy “the shield” or “go bare?”

Tilting the Scales in Your Favor:

Regular readers are discovering a recurring answer – it’s a business decision to be made carefully after thoughtful input from your experienced advisers.

Workers’ compensation in the Lone Star state is a kind of insurance, but it’s definitely not what you think of as a normal insurance plan. It is part of a statewide reform of the tort laws that address the respective rights of employers and employees when workers get injured on the job.

Recent statistics show that approximately 35% of Texas employers are nonsubscribers, with the number of nonsubscribing small businesses going down. However, the total percentage of nonsubscribers employees is going up because employers of 500 or more employees are more inclined to choose nonsubscription. In some industrial categories, the rate is closer to 50% or more. Many well-reasoned insurance agents note the understandability of “going bare” when workers’ compensation premiums are consuming a rising portion of the income of many businesses. Still, they argue that there is no realistic alternative to workers’ compensation insurance which covers all financial responsibility for a job-related injury. Unlike “going bare,” the “shield” limits the injured worker’s claim to the schedule of benefits based on the type and severity of the injury provided by the Texas Worker’s Compensation Commission.

On the other hand, those employers who choose nonsubscription argue that “going bare” suits them better because it helps them to eliminate fraudulent claims, they have fewer accidents due to an emphasis on safety, they avoid the high cost of workers’ compensation insurance premiums and rising medical costs, and they can require their injured employees to arbitrate any dispute related to an on-the-job injury.

Reports surfaced last week that several NFL teams were linked to a “bounty” scandal in which defensive players and coaches pooled cash together to pay players for big hits, which resulted in “knockouts” or “cart-offs.”

As the NFL commissioner, Roger Goodell, fashions an appropriate punishment, the scandal could have both civil and criminal implications.  As we previously blogged in I Went to a Fight and a Hockey Game Broke Out,  if an act is considered “part of the game” (a collision at home plate, a foul in basketball or a tackle in football), then players are considered to have assumed the risk of injury.  However, when conduct goes so far beyond that which is normally tolerated, civil and criminal liability may follow.

Legal precedent exists for the notion of holding players responsible for conduct that recklessly endangers their opponents.  Therefore, the possibility exists for assault and battery charges to be filed against individuals who took part in the bounty rewards program.  Furthermore, teams could also face civil liability from fans that paid to watch games based purely on athletic talents and not secret side bets among the players and coaches.

Pregnant Sticky NoteJack and Jill live on a hill, in a comfortable 3 bedroom house with their two children.  The happy couple have decided that they do not want more children because of the high cost of raising them.  (Jack has been unemployed for several years after a nasty tumble down the hill which resulted in a severe head injury.)  Rather than risk an unwanted pregnancy, Jack goes to the doctor and has a vasectomy performed.  Despite Jack’s uncomfortable procedure, Jill gets pregnant two months later and eventually has another healthy child.  Can Jack and Jill sue their doctor for the cost of raising the child and fetch a big pail of money?

As you might expect, when confronted with such an emotionally, ethically, morally and religiously-charged issue, courts around the United States have adopted very different damage models.  The four generally accepted models are the:

  • no-recovery rule;
  • full-recovery rule;
  • benefits rule; and
  • limited recovery rule.

The first two rules are self-explanatory.  The benefits rule allows for recovery of the expenses of education and maintenance offset by the “benefit” to the parent of having the child.  The limited recovery rule, which is the law in a majority of states, including Texas, would permit Jack and Jill to bring a malpractice claim for wrongful pregnancy/conception following the failed vasectomy procedure, but would limit the recovery to certain elements of damage (e.g. actual medical expenses incurred as a result of the failed procedure).  Exactly which elements of damage will be recoverable is a question still being debated among the Texas courts.

NOTE: A cause of action for wrongful pregnancy/wrongful conception should not be confused with a cause of action for wrongful birth or wrongful life.  Wrongful birth is a cause of action brought by the parents of a congenitally diseased child claiming that the doctor failed to properly warn them of the risk or existence of an abnormality and, therefore, the parents were prevented from making an informed decision.  A wrongful life claim is brought by a severely disabled child for failing to prevent the child’s birth.

Dirty Dick’s Crab House is in a dither. Dirty Dick’s owners Pierce Lipp and Gimmy Amira just learned that late last year a completely new domain name –  XXX domains – became available. They hear that all sorts of big companies and universities have jumped on the rush to protect themselves from some off color group grabbing their restaurant’s name for prurient purposes. What should Pierce and Gimmy do?First approved by the ICANN in September, open season on the new XXX domains was unveiled to the public late last year. Universities and countless other schools and business rushed to prevent their good names from falling into the hands of the pornography industry. Fearing that they might be exploited by the adult entertainment business, tens of thousands of “.xxx” website names were snapped up. The University of Kansas bought up http://www.kugirls.xxx/ and http://www.kunurses.xxx/ to avoid the clutches of “some unscrupulous entrepreneur.” Kansas University spent nearly $3,000 to protect the names and do nothing with them. Is it a good idea to buy the .xxx suffix domain name to protect your brand?

Tilting the Scales in Your Favor. Many like last Wednesday’s Dallas Morning News columnist Cheryl Hall think that “Triple X Websites Can Cause Super-size Headaches.” They promote protecting your business trademark / trade name. No doubt, that’s the safest advice.

We say, “not necessarily.” You don’t have to buy the domain names to protect your trademark or trade name says our local Looper Reed trademark expert Carol Wilhelm. Like Ms. Hall both Carol and our internet expert Travis Crabtree suggest that there are those who might benefit from purchasing the Triple X sites – Fortune 500 companies, those with unique brand names, churches, schools and other not for profit institutions.

Some businesses complain they are being forced to buy domain names unnecessarily to protect their brand. The cost to protect the name for several decades is less than the $5,000 average cost to litigate with the World Intellectual Property Association the release of a domain name registered by someone other than the trademark owner. The complainers argue that GoDaddy’s “Defensive Registrations” are costing them thousands per year to protect their trademarks against domain squatters. The only winners of this new domain idea, they contend, are the domain registrars who demand $80 to $125 per year for a Triple X domain name.

Practically speaking, unlike “.org” or “.net” it is not likely that someone seeking your website would mistakenly type “.XXX.” And, if someone truly wants to spoof your brand name to create an adult website, they wouldn’t need to buy an “.XXX” domain name. They could find other ways to do so. Curiously, the ones complaining the loudest are the sex sites. They neither would choose to run a live XXX domain website nor do they wish to be forced to use them. Why? Because businesses and parents can block all access to XXX domains, and these companies often get noticed by a slip of the typing finger or a misspelled word.

As is often the case, the legal risk assessment is the relative value of the cost of protection versus the risk and resulting cost from having to later protect your good name. You make the call.

CarRemembering the wintery weather of 2011 when the weather outside was frightful, Jack Frost and Dee Ice worry whether ice and snow will force them to close their office this year. Last year, many employees were forced to stay home with their young children whose schools were closed despite the fact that their employers kept the offices open. Frost and Ice have to balance the financial burden of lost work product and paying staff that is not at work, against the ill will and bad morale if staff is not paid. Worse still, Jack and Dee fear that last year some of their employees gamed the system because there was no firm policy in place. What are the obligations of the employees? Where should an employer draw the line when it comes to the safety of an employee vs the employees personal preference to stay home in inclement weather. What should Frost and Ice do?

Rough Sledding. Under federal law, an employer can make whatever rules it wants for its non-exempt employees. The most common practice is to pay the hourly employee only for the hours actually worked. For exempt employees there are two rules. First, if the exempt employee works even part of a day, that employee must be paid for a full day. Second, if the employer chooses to close the office, the employee must be paid. However, if the office is not closed and the employee does not come to work – even if the roads are bad – the employer does not have to pay the exempt employee who is treated as being absent for personal reasons. Even with these rules, don’t forget to review your agreement with your employees, whether it be an employee handbook (likely), an employee contract (less likely), or a union contract (also less likely in Texas).

Tilting the Scales in Your Favor. Jack Frost and Dee Ice should address the effects of severe weather on their businesses before the bad weather strikes to effectively manage their workforce. Now is the time to introduce or modify an adverse weather policy. Frost and Ice’;s inclement weather policy should clearly spell out the rules and employees should be reminded of the company’;s inclement weather policy, including who is responsible for announcing any closures, where the employees can find that information, and who should be notified and when, if an employee has problems getting to work or not coming to work, and by when notice should be given. If non-attending employees will not be paid for bad weather days when they cannot come to work, they should be told well in advance. To avoid employees feeling pressured to risk their safety to get into the office, Frost and Ice may want to consider adding another day or two to the total paid time off (PTO) days to allow for occasional bad weather days. Then the determination of personal safety and care of children becomes the employee’;s sole responsibility. Additional PTO days, however, do not address Jack and Dee’;s fears of lost productivity during this time of hoped for economic healing.

By the way, if Jack Frost and Dee Ice decide to stay open during bad weather, the risks to their businesses may not end with their payrolls and their production. An employee may have recourse to sue an employer for injuries arising from the inclement weather if the employee can prove the employer was negligent in remaining open. Also, for employees who drive company owned vehicles, a whole new set of issues is introduced. Either way, check your business and automobile insurance policies and consult your insurance agent to make sure that your business is covered for inclement weather vehicle accidents and accidents on company property caused by bad weather conditions. Finally, don’t forget to tell your customers and your vendors if you intend to close for bad weather.

dogWhile on her way to get a café macchiato, Paris Hyatt dropped her beloved pocket Chihuahua, Pavlov, off at the trendy Waco grooming studio, Doggie Styles. Two hours later, when Hyatt returned, she was confronted with the horrible news that Pavlov had run away after being scared by a loud hair dryer. Fortunately, Pavlov was quickly found at a local animal shelter. Unfortunately, when Hyatt arrived at the animal shelter she did not have enough cash in her Chanel purse to pay the $50 “pick up” charge and had to leave Pavlov until the next day when she could return with the money. A “hold for owner” tag was then put on Pavlov’s cage. That night, despite the tag, Pavlov was mistakenly euthanized by a careless shelter employee. Hyatt is devastated and sues the shelter. Can she recover for the lost companionship or sentimental value of Pavlov?

Yes, based upon a recent Ft. Worth Court of Appeals decision, Hyatt could recover for the sentimental value of a dog. In Medlen v. Strickland, the Court held that where personal property has little or no market value and its main value is in sentiment, damages may be awarded based on this intrinsic or sentimental value. The Court found that “because of the special position pets holding in their family, we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet at least to the same extent as other personal property.” Because “dogs are unconditionally devoted to their owners … today, we interpret timeworn supreme court law in light of subsequent supreme court law to acknowledge that the special value of ‘man’s best friend’ should be protected.”

Tilting the Scales in Your Favor.

While the novel ruling was universally praised by pet owners throughout the country, businesses who care for animals take note. There is concern that the case may have a negative impact on the broader private sector including kennels, dog-sitters and veterinarians who may now be forced to practice “defensive” medicine.