Posted on November 06, 2015 in Uncategorized

Whether they realize it or not, most people are familiar with the concept of comparative fault. How does this idea play out in car crash cases?

Almost inevitably, when two siblings, two workers, two schoolchildren, or two athletes get into a fight, they will give markedly different answers to the question of “who started it?” Although premeditated sneak attacks are not unheard of, at least when children are involved, the truth is that both parties are almost always somewhat at fault. In these situations, the parent, supervisor, teacher, referee, or coach must apportion blame according to the applicable rules and assess the proper punishment.

The Rule

The same thing is true in many negligence cases, particularly intersection collisions and freeway wrecks. Each driver blames the other one for the crash. The applicable rule is found in Chapter 33 of the Civil Practice and Remedies Code. Essentially, the plaintiff’s recovery is reduced by the percentage of his or her fault. Moreover, if the defendant is not at least 51 percent negligent, the plaintiff recovers nothing.

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 Posted on November 02, 2015 in Uncategorized

Without an effective attorney, the jury may never hear what may be the most compelling evidence in a car crash case. Worse yet, the evidence may not even be available to begin with.

Event Data Recorders

Many people are familiar with the “black boxes,” or flight data recorders, that are standard in commercial airplanes. But many people are unaware that there is probably a similar device in the cars, trucks, and vans that they drive every day. What makes this evidence so valuable is that, unlike eyewitness testimony, it basically cannot be challenged and its reliability cannot reasonably be questioned.

Almost ten years ago, the National Highway Transportation Safety Administration issues a rule concerning event data recorders, or EDRs. In addition to making them mandatory for all new cars sold in the United States, the regulation set forth a number of metrics that these devices must capture and record. This data includes:

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 Posted on October 30, 2015 in Uncategorized

Generally speaking, Texas laws regarding alcohol provider liability when it pertains to alcohol-related car crashes is slanted in favor of defendants. The Lone Star State did not even have a dram shop liability law until the 1980s while many other states have had similar laws on the books for nearly a century. The same is true for social host liability. Since 1993, Texas courts have consistently refused to impose liability on social hosts. But a case from the Fourteenth Court of Appeals in Houston may have opened a back door in these matters.

The Case

The dispute in Plunkett v. Nall began at a New Years’ Eve party in 2007. The defendants had a plan in place to discourage drunken driving: they set a rule that all guests remaining at midnight who had consumed alcohol must stay the night at their home. But they did not enforce this rule by confiscating keys or taking any similar measures. So, an “inebriated” guest and his “female friend” tried to leave the party at about 2:00 a.m. While the plaintiff stood on the running board and tried to remove the keys from the ignition, the driver suddenly accelerated; the plaintiff was thrown off of the SUV and injured.

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 Posted on October 28, 2015 in Uncategorized

Many courts in South Central Texas and elsewhere are wrestling with the question of “who is a legal employee,” especially as far as car crashes are concerned, in the redesigned post-financial crisis economy. A long-term dispute between FedEx truckers and managers in California recently ended with a decision that these workers are employees, although that ruling may be appealed. In a similar vein, it looks as if the Uber lawsuit, which raises similar issues, may drag on for quite some time.

Who is an Employee?

Although one might think that such a simple question would have a fairly concise legal answer, that is not the case. One thing is for certain: the court, and not the employer, decides who is and who is not an employee. There are four general approaches:

• Economic Realities Test: The Fifth Circuit U.S. Court of Appeals, which includes Texas, has used this approach in the past. It asks whether or not the worker is economically dependent on the employer; the answer is nearly always “yes.”

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 Posted on October 26, 2015 in Uncategorized

Although there are some twists and turns along the way, Interstate 35 runs in almost a straight line between the Mexican border at Laredo and the Canadian border at Duluth, Minnesota. Especially in the post-North American Free Trade Agreement era, Interstate 35 is one of the primary trucking lanes for various goods, and also a prime spot for major truck crashes. These wrecks are very different from passenger car crashes, in several important ways.

Evidence

All successful negligence cases are built one piece of evidence at a time, and the building blocks are significantly different in these cases.

• Driving History: Most commercial truckers have out-of-state drivers’ licenses, so their driving histories are more difficult to access.
• Federal Requirements: The Federal Motor Carrier Safety Administration is the primary agency in charge of truck and truck driver safety.

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 Posted on October 22, 2015 in Uncategorized

An unknown street vigilante has apparently taken the law into his or her own hands near Lackland Air Force Base in southwest San Antonio in a bloody campaign against dog bites and the owners that cause them.

At least two unattended dogs were the victims of a machete or large knife attack. One was rescued and transported to an animal hospital; it died after several days of treatment. The other victim is still wandering the streets with a serious injury to its neck or head; neighbors are working to try and locate and save the animal. Meanwhile, police have stepped up patrols in the area and investigators are working to find the person, or persons, behind the attacks.

Local resident Karen Lucchesi admitted that animal attacks were “a problem” in the neighborhood, but insisted that the dogs deserved justice for what happened to them.

Dog Bites

First and foremost, it is never, ever acceptable to resort to violence in an attempt to cure a negligence problem. It is a known fact that many animals are attack animals by nature, and harming them for possessing this natural impulse makes no more sense than destroying a sports car because it is capable of going fast.

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 Posted on October 16, 2015 in Uncategorized

Generally, when owners allow incompetent operators to drive their vehicles, the owners may be liable for car crash damages under the theory of negligent entrustment. The lack of a valid license is not necessarily conclusive proof of incompetence, especially if the suspension was for failure to pay child support or some other non-safety issue. But if the license was suspended for a safety or health reason, particularly if the suspension incident happened recently, a reasonable juror could certainly conclude that the driver was incompetent.

However, this pathway to recovery is not available with regard to rented or short-term leased vehicles, thanks to an obscure provision that was very quietly inserted into the federal Transportation Equity Act and is commonly known as the Graves Amendment.

History

49 USC 30106 has practically no legislative history, other than a few minutes of floor debate immediately prior to its passage in 2005. There are absolutely no committee hearings or legislative studies. In the early 2000s, about a dozen states (not including Texas) passed laws that made vehicle leasing franchises, like U-Haul, Ryder, Hertz, Enterprise, and so on, liable for damages in a motor vehicle collision involving a leased vehicle.

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 Posted on October 14, 2015 in Uncategorized

The Texas Legislature is considering changes to the state’s dram shop liability law as it relates to alcohol-related car crashes and other personal injuries.

Grand Prairie Democrat Chris Turner recently introduced House Bill 409, which would require purveyors of alcoholic beverages to carry about 50 percent more insurance against the damages caused by their intoxicated patrons. Supporters claim that the proposal would decrease the number of alcohol-related crashes, because bars, restaurant, and hotels would use more caution when serving patrons. They also note that the additional insurance would mean added compensation for injury victims.

The House Licensing and Administrative Procedures Committee recently approved HB 409, and the full House is expected to take up the bill in the coming months.

Third Party Alcohol Liability

The state’s dram shop law is found in Chapter 2 of the Alcoholic Beverage Code. The dram shop law, named after an outdated term for a bar or saloon, is relatively new to Texas, as the hospitality industry successfully delayed its passage until 1987.

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 Posted on October 09, 2015 in Uncategorized

One person is in the hospital after a cow wandered onto Highway 281 and caused two separate car crashes at almost the exact same time.

The collisions took place in the early morning hours near the intersection of 281 and Guest Road. According to police, a southbound Mustang driver collided with the cow near the center of the highway. The Mustang came to a sudden halt as the cow catapulted over the car. Shortly thereafter, a Jeep SUV hit the disabled cow who was still in the road. That vehicle rolled at least three times before eventually coming to rest on a grassy median. The driver was rushed to a local hospital with serious injuries, but is expected to survive.

The cow was pronounced dead at the scene; neither the driver’s name nor the bovine owner’s name was released.

Landowner Duty in Vehicle-Animal Collisions

Especially in some of the more rural areas of South Central Texas, vehicle-animal collisions are not uncommon. In fact, hundreds of motorists collide with animals every year; many of them are rushed to the emergency room and 200 of these victims die.

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 Posted on October 07, 2015 in Uncategorized

Quite contrary to popular myth, dog bites are among the most serious personal injury events in South Central Texas and elsewhere.

Statistically, 1,000 Americans are rushed to the emergency room every day because of a dog bite. Most of the victims are children under 10, and most of the animals are molosser breed animals, including pit bulls, rottweilers, and boxers. Following their hospital stays, these victims leave with an average of $18,200 in medical bills, which is about twice the normal amount in personal injury hospital admissions, largely due to the frequency of reconstructive surgeries.

But the suffering is just beginning, especially for children. In the months and years after the attack, many of these victims suffer from lingering Post Traumatic Stress Disorder. According to Dr. Larry Schmitt, a dog attack to a child is like a bear attack to an adult, but there is one significant difference. While adults will readily share the account of the bear attack, children are much more tentative, because they do not want to make their parents feel guilty about the attack.

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