“Will my child’s torts make me liable?”

Tort comes from the Latin word “tortus” which means “wrong”.  A tort is defined as a private or civil wrong or injury resulting from a breach of a legal duty that exists by virtue of society’s expectations regarding interpersonal conduct, rather than by contract or other personal relationship.  In other words, tort law imposes a duty on every person to behave as carefully as a reasonable, ordinary, prudent person would behave in a similar situation.  This is known as the reasonable person standard.

Common law states that a defendant’s actions must fall short of the reasonable person standard in order for the defendant to be found negligent. Children on the other hand, are typically held to a lower standard than adults.

Under Family Code § 41.001, a parent or other person who has the duty of control and reasonable discipline of a child is liable for any property damage proximately caused by: (1)  the negligent conduct of the child if the conduct is reasonably attributable to the negligent failure of the parent or other person to exercise that duty; or (2)  the willful and malicious conduct of a child who is at least 10 years of age but under 18 years of age.

However, the mere fact of parenthood does not make a parent liable for the torts of the child.  There’s no legally acknowledged presumption that holds the parent responsible for a tort committed by the child, unless it is shown that the parent is in some way implicated.

A parent is liable for the torts of his or her minor child only when the child’s wrongful act is committed under the parent’s direction, express or implied.

In Villacana v. Campbell, 929 S.W.2d 69 (Tex. App. Corpus Christi 1996), the Villacana’s brought action against the Campbell’s. The Thirteenth Court of Appeals ruled that the Campbell’s had no duty to control the conduct of an adult child, even though he was living at home, where no act or omission on his parents’ part was a proximate cause of the murders the child committed, the parents did not own the weapon used in the murders, denied storing it in their home, and stated that their son had not previously displayed a violent temper or shot at anyone.

In some situations, a child (10 years of age but under 18) who engaged in a willful and malicious conduct and caused damages, may expose the parents to liability for actual damages, not to exceed $25,000 per occurrence, plus court costs and reasonable attorney’s fees. Family Code § 41.002

In the end, it’s always best to hire a Texas personal injury attorney who is experienced and skilled in handling these types of cases to evaluate your situaiton. 

What is required of my auto insurance company if I’m sued in a car accident lawsuit?

 You raise an important question.  After all, month after month, you dutifully pay your automobile insurance premiums.  If another driver injures you in an auto accident, you probably know that you can file a personal injury lawsuit against the at-fault driver for your injuries.  But, what if you are the at-fault party?  In that case, what exactly are you entitled to when it comes time for the insurance company to do their job?  In Texas, the rights and responsibilities of both you, the insured, and the insurance company are defined by the contract you entered into when you purchased or renewed you automobile insurance policy.  Generally, your car insurance contract likely imposes upon your insurance company the duty to defend against a claim.  For the insurance company’s duty to defend to be triggered, the claim must be within the scope of coverage.  Whether a claim falls within our outside of the scope of coverage depends on the terms of you auto policy.  However, as in most areas of life, insurance law is not always clear-cut, and disputes can and do arise about whether a claim is covered.  Under Texas law, all doubts about whether a potential claim is within the scope of coverage should be resolved in favor of the customer. 

Your insurance company also has a duty to indemnify you, the insured, against claims.  What this means is that if a claim is within the scope of coverage, and the claim is meritorious, the insurance company must pay that claim.  Of course, the insurance company is only obligated to pay up to your policy limits.  The scope of the duty to indemnify is explained in a landmark Texas Supreme Court case, G. A. Stowers Furniture Co. v. American Indemnity Co.  The doctrine emanating from that case requires that an insurance company accept a settlement offer for a claim that is made within policy limits, if it appears likely that the claim is meritorious and that the claim, if taken to trial, may result in a larger verdict.

I was seriously injured in a car accident, but my insurance paid most of my medical bills; can I still bring a claim against the at-fault driver, and how much could I collect?

If a person is seriously injured due to the negligence of another, and their insurer pays any part of their medical bills, they can still make a claim for damages with the at-fault party’s insurer.  The question is, will the measure of their damages be the amount that they would have been charged for the treatments they received, how much their insurance company (typically 60% of the retail cost of the services), or just how much they paid, as in co-pays?

Texas has something called the “collateral source rule,” which basically means that a wrongdoer should not benefit from the fact that you have insurance, or that a doctor may give an insurer a discount rate in exchange for being listed as a preferred provider.  However, Texas “tort reformers” have also claimed that a person should not be able to collect for medical expenses that were never actually paid by an injured party’s insurance company.  Tort reform has had significant success in the Texas Legislature, and in 2003, the Texas Legislature passed a law that “recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.”

While some defendants have claimed that the Legislature’s intent was to eliminate the collateral source rule altogether, this is belied by the fact that a provision of law doing exactly that was removed from the bill that eventually passed in the form quote above.  However, it is clear that the Legislature did intend to limit recovery in some way, as evidenced by the text quoted.  Right now, the courts are often in confusion in how to apply this law, and do so in varied ways:

Some courts still follow the old collateral course law, and don’t allow any evidence of insurance discounts.  Others take the other extreme, and don’t allow evidence of incurred costs above what an insured and insurer actually paid to the health care provider.  Other courts have taken intermediate approaches, including allowing the jury to see both, or allowing only the jury to see the amounts incurred, but then letting a judge reduce any jury verdict based on evidence on what was actually paid by the insurer and insured.

Finally, keep an eye toward further amendments to this area of law are likely in the upcoming legislative of 2009.

This can certainly be a very confusing area of the law when you are trying to figure out what amount an at-fault party’s insurance company should be willing to pay in a settlement, and depends greatly on the county or particular court in which your case is likely to be heard.  Evaluating such an issue requires the assistance of an experienced Texas personal injury lawyer.

Who is responsible for injuries caused by defective or dangerous products?

“Product liability” is the term used to describe the area of law dealing with the liability of a company for injuries caused by a dangerous product.  The Texas Civil Practice and Remedies Code describes a product liability action as a lawsuit against a manufacturer or seller for injuries caused by a dangerous product.  However, products liability can encompass sub parties to the manufacturer, such a subcontractors and designers.  The theory of products liability is based on the proposition that the party best able to prevent injuries created by dangerous products should bear the financial brunt of any such injuries.

Based on the above proposition, Texas courts have held that even if multiple manufacturing companies are involved in the creation or design of a dangerous product, only those companies that are directly responsible for the dangerous characteristics of the dangerous consumer product.  Likewise, if a dangerous product is manufactured or designed by duplicating another dangerous product or design without the owner’s permission, it’s most proper to hold the company that duplicated liable rather than hold liable the original design owner.  Further, a manufacturer is responsible for any seller’s losses in products liability actions, such a verdicts or settlements, unless the seller was negligent or acted with intentional misconduct (e.g. negligently modifying or altering the product).

A product liability case can be rooted in common law negligence, strict liability, or breach of a Uniform Commercial Code (“UCC”) warranty.  See our previous blog post on negligence per se for a brief discussion of common law negligence.  Information about warranties under the Texas UCC can be found at the previous link.  While a products liability claim based on negligence deals with degree of care used by the manufacturer or seller and whether any injuries were legally foreseeable, a claim rooted in strict liability does not.  A strict product liability action succeeds or fails based on whether the product was unreasonably dangerous when it left the manufacturer.  If you’ve been injured by a dangerous product, contact an experienced product liability attorney for a free consultation.

I was seriously injured in a car accident with a government vehicle; can I still bring a claim against the at-fault driver?

If a person is seriously injured in an auto accident with a vehicle owned or operated by a local, state, or federal government agency, there are difficulties that must be considered if they wish to bring a suit against the at-fault driver.

All governmental units have what is called “sovereign immunity” from suit.  This rather archaic principle is a vestige of the times when the people were ruled by a sovereign, that is a king, queen, emperor, or other monarch.  Because the sovereign was the theoretical source of the law itself, any suit at law could not be brought against the monarch, giving them near total immunity from suit.

Although we are supposed to have a government “of, by and for the People,” the government today still likes to exercise this immunity at will, and has the legal authority to do so.  However, popular sentiment top the contrary has resulted in something, in Texas, called the Tort Claims Act, which waives this immunity for certain suits brought against governmental units.  A similar law affects the federal government, though we will not elaborate upon it here.

However, you must be careful.  Because you can bring a suit against a governmental unit only as authorized by the Tort Claims Act, you are accordingly limited in your ability to sue them.  Most suits against the State are limited to a maximum of $250,000 in damages, though some are further limited to $100,000.  You are also further limited, for example, if your suit is against a driver who was not a paid employee but an unpaid volunteer such as a volunteer sheriff’s deputy or volunteer fireman.  In these cases, you are barred from suit by the original governmental immunity and the lack of any waiver.  If your suit is barred by immunity, you may still be able to bring a claim against your own UM/UIM carrier, as discussed in a previous post, but the intricacies of such a suit require the assistance of an experienced Texas personal injury lawyer.  If you have had an accident with e governmental vehicle, please contact us today.

Question:   How prevalent is “Road Rage” and just how serious a problem is it?

Road rage is also known as “aggressive driving.”  It’s important to note just how dangerous road rage related accidents are and how serious the resulting injuries can be.  Oftentimes, the high speed and abrupt maneuvers that occur during road rage accidents can result in serious physical injuries to the vehicle occupants.  Moreover, choosing to engage in road rage or aggressive driving, whether you are the aggressor or are retaliating, can subject you and everyone else in your vehicle to criminal violence.  A simple internet search will reveal the multitude of road rage cases in which shootings have occurred.

Given the enormity of the situation, including the devastating injuries and loss of life, it’s especially troubling that road rage accidents have been historically rising.  The statistics are grim indeed.  AAA figures indicate that over 1500 persons are either seriously injured or mortally wounded.  The trend is so alarming that many large municipalities have dedicated road rage patrols to discourage aggressive driving.

The best way to avoid becoming the next statistic is to recognize the common perils of road rage and to avoid them.  Road rage is characterized by unsafe, combative driving, and can manifest in many ways, including tailgating, speeding, rapid lane changing, failing to use turn signals, belligerently using your horn, etc.  If you find yourself stressed while driving, take a step back from the situation.  Remain calm, and do not engage in any of the above hostile and dangerous driving maneuvers.  If you find yourself on the bad side of someone else’s aggressive driving, do not retaliate or attempt to “police” the streets yourself.  Let the aggressive driver pass, and so to will the danger that driver creates.

Still, the above information is likely not of much comfort if you have already been struck by an aggressive driver.   If you’ve been injured as a result of another party’s aggressive driving, you are entitled to all of the protections of Texas law afforded to other accident victims.  This includes requiring the at fault party to compensate you for your losses including losses in personal property, medical bills, vehicle repair, and pain & suffering.  As is the case in all auto accidents, the best course of action is to seek a free consultation from an experienced personal injury trial lawyer.  Your attorney can help you choose the strategy most likely to result in your full recovery, and you attorney can evaluate special and tricky scenarios like road rage related auto accidents.

What is a personal injury and what is the timeframe to bring a claim forward?

In a previous post, we talked about the steps to bring a lawsuit.  However, before a personal injury claim is made, there must be an injury. 

Black’s Law Dictionary defines personal injury as “a hurt or damage done to a man’s person, such as a cut or bruise, a broken limb, or the like.”  This really turns out to be any type of physical or mental injury to a person as a result of someone’s negligence or harmful act.  In addition, sometimes personal injuries are referred to as bodily injuries. Personal injuries may occur in a wide variety of ways.  Below is a list of the most common accidents resulting in personal injury:

• Car Accidents
• Slip & Fall Accidents
• Dangerous or Defective Product Injuries (Product Liability)
• Dog Bites
• Wrongful Death

While these only represent the most common types of accidents, there are many others.  If you’ve suffered an injury, then it’s important to know how long of a period of time you have to bring your claim.  Generally, Texas law gives you two years from the date of the accident to settle or file a lawsuit. However, there are many situations that can extend or shorten this time period.  You should consult a local attorney to see how the law views your particular situation.  Call us to learn all of your legal rights. The statute of limitation is extremely important because if you fail to bring your claim within the window of the statute of limitations, your suit may be barred forever. 

If you think you’ve been hurt or otherwise damaged from an accident, you’ll want to contact an experienced personal injury lawyer to have your case evaluated. 

Today, the American Association of Justice (AAJ) released a series of documents that detail how helping negligent corporations escape accountability has been a top priority for the Bush Administration. The documents were obtained through repeated Freedom of Information Act requests by AAJ and reveal how the Bush Administration has silently ordered federal agencies to usurp state law and consumer protections.

The AAJ report titled, Get Out of Jail Free: A Historical Perspective of How the Bush Administration Helps Corporations Escape Accountability, tracks the origins of complete immunity preemption. Further, the report reveals how in 2005 carbon copy statements claiming that federal agency rules preempt state law began surfacing in the rule “preambles” issued by the federal government, and in some cases the final rules. To date, seven federal agencies have issued over 60 proposed and final rules with preemption language in the preamble and claimed the authority to provide immunity from state law. 

Today’s Wall Street Journal outlines how these new rules will weaken consumer protections and will affect everything from motorcycle brakes to pain medicine. The story also includes an acknowledgement from a former Administration official that skirting Congress and usurping tougher state consumer safety laws was a goal of this Administration. And we can expect even more activity from federal agencies in the waning months of the Bush Administration.

In exposing this wide-ranging attempt by the Bush Administration to dismantle states’ rights, AAJ uncovers the cozy relationship between federal agencies and the industries they regulate and the dissension at the agencies that resulted from the move to curtail states’ authority.

The public is encouraged educate themselves about the dangers of complete immunity preemption and the civil justice system’s role in protecting consumers.  Our lawfirm is currently investigating Trasylol Lawsuits and Digitek Injury Claims, federal preemption may change the outcome and viability of these claims. 

I was seriously injured in a car accident, but my insurance paid for all/part of my medical expenses; can I still bring a claim against the at-fault driver?

If a person is seriously injured by a negligent driver in an auto accident, the negligent driver may be liable for damages to the injured driver, including medical expenses, lost wages, and pain and suffering.  Just because your insurance paid for some or all of your medical expenses, doesn’t mean you still can’t sue the at-fault driver.  There are some considerations to take into account, though.

The amount you may be able to recover may exceed just your medical expenses.  Damages for pain and suffering can sometimes double or even triple the amount that an-at-fault driver’s insurance company will be willing to pay on a claim.  However, your own insurer, whether it be health or medical insurance, liability coverage on your auto policy, or coverage obtained through your employer, may have a right to something called subrogation. Similarly, a hospital that provided medical services free of charge and now wants to get paid may assert a similar right called a medical lien which can entitle the hospital to subrogation.

Subrogation is a technical sounding concept that can often seem quite confusing.  The simple version is that if someone (generally an insurer or hospital) has paid for medical expenses that then form the basis for a claim against a third party, the insurer who paid in the first place wants to and generally has a right to get paid back for the amount they shelled out in the first place.  In theory, this seems reasonable, but it sometimes can complicate matters.  What if your medical expenses were $50,000, and you are left with a permanent disability that clearly would entitle you to addition damages in an amount of, hypothetically, $300,000, but the at-fault driver has only the $20,000 minimum required coverage.  Further, your own insurance paid for all of your medical bills—but of course not for your pain and suffering.  It may seem like a good idea to go after the at-fault drivers liability policy to try to get at least $20,000 for your pain and suffering.  However, your insurer may assert that it wants all of that $20,000 to at least partially compensate it for the $50,000 it already paid on your behalf.  Obviously you don’t want to pursue a claim for $20,000 just to pay back your own insurance company.  Fortunately, there are some provisions in the law to protect you in this situation. 

First of all, since you are paying a lawyer to make the third-party claim against the at-fault driver’s insurance, your own insurance shouldn’t be able to get a free ride on those paid legal services.  Therefore, any subrogation they claim against your third-party recovery can be reduced by the amount of legal fees you pay just to bring the third-party claim.  But that still leaves you with nothing more than enough to pay your legal bills and your insurance company. 

Since the insurance company knows you would never bring a claim under those circumstances, and wants to try to get some of their money back, they will generally be open to negotiate their subrogation right.  A skillful attorney can often use the various legal doctrines that are built into Texas law to get a demand for subrogation reduced by one third or even half, allowing the insurer or medical provider to get back some money, but also allowing the injured party to obtain some additional recovery for their pain, suffering, lost wages, and other damages.  Don’t let subrogation ruin your claim.  Hire a Texas personal injury attorney who is experienced and skilled at negotiating subrogation liens and other liens in order to maximize your recovery from multiple sources.

I was in a car accident and the other driver got a ticket; is he automatically legally liable for my injuries and property damage?

What you’re asking is rooted in a legal theory called negligence per se.  Don’t let the Latin throw you – negligence per se literally means negligence “by itself.”  Negligence, in lay terms, is defined as a deviation from a reasonable standard.  In other words, a person who is negligent did not act in the manner that a reasonably prudent person would have.  Most personal injury and accident claims are rooted at least partially in negligence.  Normally, for an injured party to hold another party legally responsible for an accident based on a claim of negligence, the injured party must prove that the other party, either through his acts or omissions, did not act as an ordinarily prudent person would have.    This proof may come in the form of witness testimony, pictures, expert opinions, etc.  This proof must be weighed by a jury if the claim later goes to trial.

However, in some instances an injured party may not be required to prove negligence – it may be presumed in certain circumstances.  Negligence per se is simply a legal doctrine that stands for the proposition that a law passed by the government sets the standard for prudent behavior, and that a person who breaks the law is presumed to act contrary to that prudent behavior standard.  For example, the Texas Transportation Code laws require that drivers must drive on the right side of the road in most circumstances.  If a person drives on the left side of the road and causes and accident while doing so, the fact that the driver was in violation of the state law may be used to show that the driver should be presumed negligent.  The situation is similar if a driver causes an accident while running a red light.

Now, lets get back to your question specifically.  Unfortunately, I have to answer in the lawyer’s most oft used phrase: it depends.  Whether the ticket can be the basis of negligence per se claim depends on many factors.  The rules interpreting the legal theory and defining the elements of negligence per se have been hashed out by Texas courts.  Some considerations include the legislative status of the law alleged to have been violated, the legislative purpose of that law, whether the at-fault driver will be convicted or acquitted of breaking that law, and whether the at fault driver had a legally valid excuse for breaking the law.  So, if you’ve been injured in an accident, you may or may not be able to depend entirely on that traffic ticket to secure the recovery you deserve.  As always, plotting the best course of action for recovery demands the expertise of a skilled personal injury attorney, and you’ll want to speak with one right away to fully understand your rights.