Posted on March 25, 2016 in Uncategorized

A Dallas jury has ordered DePuy Orthopaedics to pay compensatory and punitive damages to five victims who received defective hip implants.

The jury deliberated for nearly six days before ordering the medical device maker – which is a division of Johnson & Johnson – to pay $142 million in actual and $360 million in punitive damages. Lawyers for the five victims, one of whom is from Boerne, argued that the Metal-on-Metal (MoM) artificial hips were defectively designed, causing premature failure and intense pain. Furthermore, according to court documents, DePuy knew about problems with its Pinnacle and Ultamet implants, yet failed to warn patients or doctors due to the risk of decreased sales. DePuy and other hip implant makers have consistently denied that their products are unsafe. About 8,900 defective hip implant cases have been consolidated before U.S. District Judge Ed Kinkeade in Dallas, and plaintiffs expect the next trial to begin this fall.

In October 2014, a separate jury determined that DePuy was not negligent under similar facts.

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 Posted on March 23, 2016 in Uncategorized

A motorcyclist desperately tried to avert a serious collision on the East Side, but the incident was probably unavoidable.

The wreck occurred near the intersections of White and Houston Street. Police say that a motorcycle rider was speeding and unable to avoid a vehicle that turned left directly in front of him, resulting in a T-bone collision. An eyewitness added that the motorcycle rider apparently tried to jump off the bike before striking the car, but he was unable to do so. According to the witness, the rider “hit the car as well, then he went tumbling like a receipt in the wind.”

The motorcyclist was declared dead at the scene; a vehicle passenger was transported to a local hospital with various injuries.

Comparative Fault

In many car crashes, both motorists arguably share responsibility for the crash. For example, in the moments leading to the above incident, the vehicle driver apparently made an illegal turn and the motorcycle rider was allegedly speeding.

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 Posted on March 18, 2016 in Uncategorized

Over the last decade, hundreds of people have been killed or seriously injured in a vehicle wreck that involved a rented moving truck or a rented passenger vehicle. In some cases, especially concerning moving trucks, the drivers may be operating large machinery that normally requires a commercial driver’s license. In other cases, such as those involving leased passenger vehicles, the drivers are unfamiliar with the surroundings, meaning that their attention is divided between navigation and operation.

Under a traditional approach to third-party liability, like respondeat superior or dram shop liability, the owner should be responsible for the damages that are caused in a vehicle wreck. But leased and rented vehicles are not in this category.

Graves Amendment

In 2005, lawmakers slipped an obscure provision into an omnibus bill. 49 U.S.C. 30106 became known as the “Graves Amendment,” after its sponsor, Congressman Sam Graves (D-MO). The issue came up because large vehicle leasing companies threatened to stop operating in states like Minnesota, which had vicarious liability statutes. So, in the opinion of many people, the Graves Amendment is yet another example of government siding with big business and sacrificing public safety.

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 Posted on March 16, 2016 in Uncategorized

Alcohol is a primary contributing factor in about a third of the car crashes that occur on South Central Texas roadways. In the vast majority of these incidents, the tortfeasors (negligent drivers) obtained the alcohol outside their homes, from either a commercial provider like a bar or restaurant or at a social gathering with friends and family.

Third-party liability is often an issue in these cases, and such actions are important for at least two reasons. First, they create an additional source of damages, a significant feature given the large number of uninsured and uninsured drivers in Texas. Perhaps more importantly, however, a third-party liability action sends a message to alcohol providers that there are strict rules to observe when serving or providing this potentially dangerous substance. If these rules are not strictly followed, there may be serious consequences.

Commercial Providers

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 Posted on March 11, 2016 in Uncategorized

With slapstick banana-peel slips featured prominently in many comedy television shows and movies, many people assume that a slip-and-fall cannot be a serious injury. But the truth is much different. Each year, falls account for more emergency room visits than any other injury. Similarly, workplace falls account for more missed days and more workers’ compensation claims than any other cause of injury.

Strictly speaking, landowner liability claims are negligence cases: if the defendant breaches a legal duty, and that breach caused injury, the defendant is liable for damages. But slip-and-falls work a bit differently, at least in some respects.

Duty

In landowner liability cases, the nature of the duty typically depends on the reason the victim was on the premises or property:

• Trespassers: Landowners must not intentionally harm people who are on the land without permission, such as hunters who accidentally wander onto the property of another. The duty is enhanced based on certain criteria, including the victim’s age and the number of previous occurrences.

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 Posted on March 09, 2016 in Uncategorized

An alert officer helped police capture a hit-and-run driver after he initially fled the scene of a serious bicycle crash.

The wreck occurred on the West Side, near the intersection of Callaghan Road and Culebra. Witnesses reported seeing an SUV collide with a bicycle. The bicycle rider was thrown from the bike and landed on his head; he was rushed to a nearby hospital with serious injuries. The SUV driver turned out to be a 36-year-old man. After driving away, he returned to the scene and slowly drove around the area. An alert officer noticed the vehicle had a dangling side mirror, which led to a stop and arrest.

The SUV driver was promptly charged with DUI, and additional charges may be forthcoming.

Hit-and-Run Crashes

Around half of hit-and-run drivers are eventually apprehended and prosecuted. In terms of the proportion held liable for the damages they cause, the number might be a little bit higher. In criminal court, the prosecutor must prove guilt beyond a reasonable doubt. But in a negligence case, the plaintiff must only prove cause by a preponderance of the evidence. So, evidence that a driver was in an area at a certain time of day and was involved in a collision is enough to establish that, more likely than not, that person was the hit-and-run driver.

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 Posted on March 05, 2016 in Uncategorized

A flatbed 18-wheeler laden with scrap metal jack-knifed across eastbound Loop 1604, spilling debris and causing multiple vehicle crashes.

The wreck took place near the Green Mountain Road exit. The truck driver apparently rounded a corner at a high rate of speed, causing the back of the truck to smash into a concrete median. As the vehicle began to jack-knife, two trailing cars slammed into the out-of-control tractor-trailer; a third car was forced off the highway and careened down a grassy embankment.

At least one driver was rushed to the hospital with multiple injuries, and authorities completely shut down the highway to investigate and clean up the site.

Dangerous Truck Crashes

Large trucks nearly always jack-knife if the trailers exceed a 45-degree angle from the cabs. If that happens, the drivers completely lose control of the vehicles, regardless of their individual experience levels, and the 80,000-pound truck proceeds along the highway horizontally instead of vertically. The government estimates that about 5 percent of large truck crashes involve a jackknifed vehicle.

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 Posted on February 27, 2016 in Uncategorized

Four people were seriously injured when a gravel-laden dump truck sped out of control down an Austin street before tipping over and bursting into flame.

According to witnesses, the dump truck apparently had no brakes as it plowed through several cars waiting at an intersection, and narrowly averted rear-ending several more vehicles. Eventually, the dump truck went airborne, plunged down a 15-foot cliff, caught on fire, and tumbled onto its side. First responders transported four people to nearby hospitals with various injuries, but they are all expected to survive.

One witness simply described the horrific scene as “amazing.”

Suing the Government for Routine Matters

The principle of sovereign immunity typically limits an injured person’s ability to collect from the state or local municipality. In many cases, this concept protects government employees against negligence lawsuits. But sovereign immunity is not limitless. Generally, if a bus driver, truck driver, or other vehicle operator would be subject to a negligence lawsuit as a civilian, the injured victims may pursue administrative claims to get the compensation they deserve.

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 Posted on February 24, 2016 in Uncategorized

When the earth was void and without form, at least from a negligence law perspective, two English cases helped shape the modern American notion of duty in a car crash case.

Vaughan v. Menlove

When the court considered this case in 1837, the idea that a duty of care applied to individuals in their everyday lives was completely unknown. The only analogous situation was in contract law: when people took money to feed horses, build houses, or mend clothes, they had a legal duty to perform that service.

However, this case had nothing to do with contracts. Instead, the defendant kept a large haystack perilously close to his neighbor’s cottage. Then, as now, large haystacks carry an immense risk of fire, as a single spark can create an inferno in almost the blink of an eye. So, owners usually included chimneys and other fire-prevention items. But Mr. Menlove eschewed such caution and refused to use any safety techniques at all; several neighbors warned of the possible danger for over a month. He replied, in what some would consider classic English style, that “he would chance it.” Almost inevitably, the haystack caught fire and consumed Mr. Vaughan’s house.

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 Posted on February 19, 2016 in Uncategorized

A rollover crash near Alamo Heights has claimed the life of a 22-year-old man.

Police state that an SUV driver, whose vehicle may have been speeding, apparently smashed into the back of a Mustang, which may have been moving at a slower than normal speed, near the Olmos Basin on the southbound side of Highway 281 North. The driver was ejected after the SUV rolled over several times; it eventually tumbled off the bridge and into the Basin, where it caught fire.

The SUV driver was pronounced dead at the scene.

Comparative Fault

It is not unusual for both drivers to share responsibility in a car crash, at least to some extent. If there is evidence of shared fault, the judge will ask the jury to apportion liability between the parties on a percentage basis.

Texas is a modified comparative fault state with a 51 percent bar. Assume the evidence indicates that Defendant Driver was speeding and Plaintiff Driver was moving too slowly. Both these driving behaviors violate the Transportation Code’s provisions. Further assume that the jury assigns 75 percent of the fault to Defendant and 25 percent to Plaintiff. If the total damages were $25,000, Plaintiff would receive $18,750, or 75 percent.

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