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Why Sue Dillard's?
by Ron Davis

Proof that a co-owner of a Texas shopping center was never involved in the day-to-day management of the facility has doomed the lawsuit of an injury victim.

The shopping center, located in the Corpus Christi area, was targeted by the injury victim after a cart carrying Christmas decoration hit her while she was shopping. The accident occurred in the common area of the center as the woman exited a tenant store. She apparently did not see the cart as it was being pushed along the center’s walkway, and the impact dealt a glancing blow to the lower part of her leg, requiring medical treatment.

One of the two owners of the shopping center is Dillard’s Department Stores, Inc. But the person pushing the cart worked for the center’s other co-owner. Nevertheless, the injured woman later sued Dillard’s, claiming it was liable.

Dillard’s pointed out, however, that the other co-owner handled the management and operation of the shopping center. And Dillard’s offered proof that it has no control over nor is it involved in the hiring or activities of the employees who work for the shopping center.

Moreover, the center employee who was pushing the cart that injured the woman was assisted at the time by two other workers, neither of whom had any connection with Dillard’s. The employee added that the cart carried Christmas decorations and that the idea for and the preparation of the decorating of the shopping center originated with her employer.

The accident victim responded that even if the person pushing the cart wasn’t a Dillard’s employee, Dillard’s was involved in the joint enterprise and was therefore accountable for the other co-owner’s acts. In fact, Texas law states that a property owner may be held liable for the negligence of a person “acting within the scope of [the property owner’s] agency or employment.”

A Texas court ruled in favor of Dillard’s, however, and dismissed the lawsuit. The injured woman appealed.

A Texas appellate court also ruled that Dillard’s had no duty to protect the woman from injury. Explained the judges, “Principals for the other co-owner testified that they were the direct and sole employer at the center and had exclusive right to control the center’s employees’ work-related activities, duties, and conduct. They further testified that they exercised the right to control the details of their employees’ work.... Dillard’s thus negated one essential element of the injured woman’s joint-enterprise claim.” (Granado v Dillard’s Department Stores, Inc., 2005 WL 2090901 [Tex.App.–Corpus Christi])

Decision: August 2005
Published: August 2005



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