Car Accidents

Published on: March 16, 2015

Texas Supreme Court Reconsiders Ban on Seat-Belt Evidence

Over the past 40 years, evidence of a plaintiff’s failure to use a seat belt was inadmissible in Texas car accident lawsuits because, even though it could exacerbate the plaintiff’s injuries, it could not, in and of itself, cause a car accident. This rule was a way of protecting plaintiffs from the all-or-nothing effect of the contributory negligence doctrine. Under the contributory negligence doctrine, a plaintiff who was 1% or more at fault for an accident could not recover any compensation from the defendant. The rule originated with case law and was codified, and then the statute was repealed in 2003. In spite of the legislative repeal of the rule, the rule making seat-belt evidence inadmissible still stood, since the case law was still in effect.

In the recent, important ruling in Nabors Well Services, Ltd. v. Romero, the Texas Supreme Court reconsidered the rule banning seat-belt evidence. The case arose when a transport truck collided with a Chevrolet Suburban carrying eight passengers, including three adults and five children who were part of two families. When the transport truck slowed, the driver of the Suburban pulled into the opposite traffic lane and tried to pass. While the Suburban passed, the truck made a left turn and hit the Suburban, which rolled several times and killed an adult passenger and hurt the rest of the people in the car. There was conflicting evidence about who was belted into their seats. All of the occupants were ejected except the driver and one of the children.

The two families sued the transport truck company and its driver. At trial, the truck company tried to introduce expert testimony from a biomechanical engineer that seven out of the eight Suburban occupants were unbelted and that this failure caused their injuries and the fatality. The truck company also wanted to introduce a citation issued to the driver for failing to properly restrain child passengers.

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Published on: January 26, 2015

Can Your Chiropractor Testify in Your Texas Personal Injury Case?

By Carabin Shaw

Recently, in Moreno v. Ingram a Texas appellate court considered the question of whether a chiropractor can testify on the necessity of a plaintiff’s non-chiropractic medical treatment. The plaintiff sued the defendant for negligence, based on injuries and vehicle damage arising out of an auto accident. Before trial, she filed affidavits about her need for medical care. The court ruled these established the cost of the treatment was reasonable, but not that the treatment was necessary. The affidavits were admitted, but the references to necessity were redacted.

At trial, the plaintiff offered her chiropractor’s testimony. The chiropractor (Dr. Starry) testified about the necessity of her treatment by a pain management physician. This included epidural steroid injections and other non-chiropractic treatment. Digital animations were shown as demonstrative exhibits.

The plaintiff and defendant both testified about the crash, but their testimony contradicted each other. The plaintiff testified she had signaled to turn left from a parking lot. She also testified that the defendant was behind her but drove around on the left, swiped, and hit her. The defendant argued she was driving on the boulevard and wasn’t in the parking lot, and that the plaintiff pulled out of the driveway and caused the crash. Continue reading →

Published on: January 14, 2014

Teen Who Killed Four in a Drunk Driving Accident May Face Jail Time After All

By Carabin Shaw

Many in Texas and across the United States were horrified to learn the outcome of a drunk driving case in which four people were killed. Ethan Couch, 16 years old, pleaded guilty to intoxication manslaughter and intoxication assault in Tarrant County court. In return Judge Jean Boyd sentenced Couch to 10 years probation. Prosecutors criticized the judge for so easily accepting the “affluenza” defense, and for giving a lighter sentence than many would receive for such a crime. However, Couch may end up yet serving time if the district attorney has his way.

The tragic case began back in June 2013, when Couch and several of his friends robbed a Wal-Mart store before they got into Couch’s Ford pickup truck and drove at 89 miles per hour down the Burleson-Retta road in southern Tarrant County. Couch, the driver, had a blood alcohol level of more than three times the legal drinking limit when he plowed into four people stopped by the side of the road. They included a mother and daughter who had gone to help a stranded friend, the friend, and a youth pastor who had stopped to help. Couch’s collision also left one of his friends critically injured.

In court, Couch’s attorneys argued that Couch suffered from “affluenza”: he had grown up rich and had received everything he wanted, making him incapable of knowing right from wrong. Couch elected to have Judge Boyd sentence him rather than face a jury. He stood to receive up to 20 years in prison, but instead, Judge Boyd ordered that he be released to his parents and be placed at Newport Academy treatment facility, which cost $450,000 per year, which his parents would be required to pay. Couch would remain for at least three months. He has already been twice cited for driving at 89 miles per hour while under the influence, and pleaded no contest. Two of his requirements were to take an alcohol awareness class and do 12 hours of community service.

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Published on: November 27, 2013

California Jury Awards $150 Million to 13-Year-Old Girl in Wrongful Death Trucking Accident Case – Asam v. Ortiz and Bhandal Bros. Trucking

By Carabin Shaw

In early November 2013, a Los Angeles Superior Court jury awarded over $150 million in damages to a 13-year-old year girl who witnessed three members of her family burn to death following a car accident on a Southern California freeway. This verdict could be one of the largest of its kind.
In this case, back in November 2009, the Asam family was traveling from California to Oregon for the Thanksgiving holiday when their SUV rear-ended a semi-trailer truck parked on the shoulder of a California freeway. The plaintiff (then 9-years-old) and her 11-year old brother managed to escape from their family’s SUV after it struck and got caught under a semi-trailer truck parked on the shoulder of the freeway. However, they witnesses the deaths of their parents and brother, who were burned alive when their family’s trapped SUV caught fire.
The lawsuit alleged that the driver of the truck, Rudolph Ortiz, pulled his truck over to the side of the road to sleep. In doing, he failed to use the emergency signals and ignored written warnings that stopping on the shoulder was allowed only in emergencies. Attorneys for the defendants argued that Ortiz stopped to take medication for a severe headache, which constituted an emergency. Defendants also alleged that the law was not broken as the semi-trailer truck was parked on the dirt road to the right of the shoulder. Finally, defendants alleged that plaintiff’s father was also negligent for attempting to stop the family’s SUV on the shoulder after the SUV allegedly struck debris on the freeway.

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Published on: November 11, 2013

New Traffic Laws in Effect in Texas

By Carabin Shaw

As of September 1, 2013, several new traffic and driving laws went into effect in Texas. It is important for all Texans to become acquainted with the new laws, as individuals who break these laws may face fines, or even prison time. Fortunately, although the laws became effective September 1, 2013, Texas Department of Public Safety troopers are offering a grace period for most of the laws until January 1, 2014 to make sure everyone is aware of the new and amended laws.

The Texas Department of Transportation believes the new laws will provide added protection for people on Texas roadways. According to the Texas Department of Transportation, the fatality rate on Texas roadways in 2012 was 1.41 deaths per hundred million vehicle miles traveled -a 9.3% increase from 2011. In addition, the State of Texas also recently experienced an increase in the number of motor vehicle traffic fatalities. Specifically, the 2012 death toll of 3,399 was an increase of 10.82% from the 3,067 deaths in 2011.

Some new laws for which Texans should be aware include the following:

• Cell Phones in School Zones (HB 347): While Texas already prohibits cell phone use behind the wheel in school zones unless the vehicle is stopped or a hands-free device is being used, the new law expands the limitation to include all school property, including parking lots and drop off lanes. Violators of the law will be assessed fines up to $200. Notably, cell phone use is only restricted during the time a reduced speed limit is in effect, generally, directly before and directly after the school day.

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Published on: July 11, 2013

Summer is the Deadliest Time of Year for Teen Drivers in Texas and Nationwide

By Carabin Shaw

The risk of car accidents increases immensely during the summer months. Specifically, most car accidents occur during the period from Memorial Day to Labor Day. While July Fourth is historically the deadliest day on the roads, August is historically the deadliest month of the year for car crashes across the country. In addition, according to historical data tracked by the National Highway Traffic Safety Administration (NHTSA) from 1986 to 2002, Saturday and Friday are still the two deadliest days to drive, and rush hour from 3:00 – 6:00 pm remains the deadliest time to drive. Not surprisingly, the same held true as of 2010 as well.

More recently, research by Driving-Tests.org, an online learning site for new drivers, revealed that summer remains the deadliest time to be on the road. More than 27% of annual traffic fatalities occur during July, August and September. One possible reason for the increased number of fatalities in the summer may be due to the fact that according to AAA, teen driving increases by 44% during the summer months. Indeed, per the NHTSA, motor vehicle crashes are the leading cause of death for teens in the United States, accounting for over 35% of all fatalities for 15 to 20 year olds. While this statistic may not be all that surprising, the fact that driving while intoxicated is not the leading the cause of death for crashes involving teens might indeed be. Instead, over 75% of serious car crashes involving teens are due to “critical errors.”

Unfortunately for Texans, according to the NHTSA’s FARS Data, in 2011, Texas was the most dangerous state for drivers in the U.S. with over 3,000 traffic-related fatalities. Moreover, according to the Texas Department of Transportation, as is the case in the rest of the country, July and August were the two deadliest months for car crashes in 2012.

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Published on: February 23, 2013

Texas Legislators Seeking Statewide Ban on Texting While Driving

By Carabin Shaw

Unlike the majority of the states across the country, texting while driving is not currently illegal in the State of Texas. This is despite evidence showing that looking at a cell phone while driving can lead to dangerous and deadly car accidents. Car accidents are common occurrences, even when a driver is not distracted. However, accidents become even more common in cases where drivers are texting and driving. In fact, according to Distraction.gov, an official U.S. Government website for distracted driving, text messaging creates a crash risk 23 times worse than driving while not distracted. Additionally, according to the Texas Department of Transportation, of the state’s 3,048 traffic fatalities in 2011, distracted driving ranks third on the list of causes.

Unfortunately, the State of Texas lags behind 39 other states and the District of Columbia, and has no official ban on texting while driving. In 2011, State Rep. Tom Craddick, R-Midland, passed a bill called the Alex Brown Memorial Act in honor of 17-year old girl killed in a single-vehicle accident while texting and driving. The bill would have prohibited texting in driving throughout the State of Texas, but Governor Rick Perry, citing that the states should not micromanage people’s behavior, vetoed the bill.

The good news is that state legislators are once again seeking to have some sort of distracted while driving bans established that would hopefully limit drivers from texting behind the wheel. Rep. Craddick is among a half dozen legislators who filed bills for the 2013 Legislative Session seeking a statewide ban on texting while driving. Although the proposed bills vary, all of them look to placing restrictions on the use of handheld wireless communications while driving. The bills are gaining momentum in the Legislature and could pass again. Although Gov. Perry can veto the bill, this time around, there is a chance it could be overridden by a veto. If passed, these laws will most likely not go into effect until 2014.

With the exception of drivers in school zones, novice drivers, and school bus drivers, there is no statewide prohibition on using your cell phone and texting while driving in Texas. Specifically, the following laws are currently in place:

• Drivers under the age of 18 are not allowed to using their cell phone at all while driving –meaning they cannot text, surf the Internet, or place calls.

• Drivers are prohibited from using handheld devices in school crossing zones.

• New drivers with Learners Permits may not use handheld devices during the first six months of driving
• School bus drivers are not allowed to text or use any other form of hands free devices while behind the wheel with passengers ages 17 or under.

In each of these cases, an officer can stop and cite a driver for using a cellphone without a secondary reason for pulling the driver over. Notably, Texas also has a category for cell phone/electronic equipment distraction on police accident report forms.

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Published on: February 11, 2013

NHTSA Statistics Reveal Downward Trend in Traffic Fatalities

By Carabin Shaw

The most recent report from the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) revealed astounding statistics. The bad news is that there were 32,367 highway fatalities nationwide in 2011. The good news is that these figures are the lowest they have been for over six decades. The last time they were at that level was in 1949. These numbers continue to dictate a downward trend in the most recent years and a 26% decline in traffic deaths since 2005.

Unfortunately, these glowing statistics are of little comfort to Texas families who have lost loved ones in accidents. As our San Antonio wrongful death lawyers have known, the data confirms that our state accounts for almost 10% of all highway fatalities and 40% of those are alcohol related.

State and national agencies continue with their efforts to educate the public about ways to save lives. Some examples of successful campaigns have been “Buckle Up,” “Click It or Ticket,” “Move Over,” “Don’t Drink & Drive” and “Drive Sober or Get Pulled Over.”

Nationwide, alcohol impaired fatalities declined in 2011 by 2.5%, claiming 9,878 lives compared to 10,136 in 2010. These fatalities involved the operator of a vehicle or motorcycle who had a blood alcohol content (BAC) of .08 or higher. The 9,878 drunk-driving deaths reported in 2011 represented 31% of the overall total.

Texas, New York, South Carolina and Tennessee led the group of 27 states that experienced a decline of 30 or more alcohol-related highway deaths. Colorado, Florida and New Jersey all had increases of 30 or more alcohol-related traffic deaths. Connecticut, North Carolina, Tennessee, Ohio and Michigan led the group of 36 states that marked reductions in the number of overall fatalities.

Some other findings reported were:

• Fatalities declined by 4.6% for occupants of cars, pickups, SUVs and minivans.

• Fatalities increased for occupants of 18-wheelers (20%), cyclists (8.7%), pedestrians (3%) and motorcycle riders (2.1%).

Compared to all the other states, Texas clearly led the pack accounting for nearly 10% of all traffic fatalities reported nationwide. In 2010, Texas reported 3,023 total fatalities. There were 42% (1,270) related to alcohol. In 2011, Texas had a total of 3,016 fatalities, with 40% (1,213) being alcohol-related. Only Hawaii (44%) and North Dakota (44%) had more traffic fatalities related to alcohol than Texas.

These statistics are frightening for every mother and father who fears the worst when their teenagers are out at night and every husband or wife who sees their loved one leave on a road trip.

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Published on: January 22, 2013

Study Says Obese Are 80% More Likely To Die In A Car Crash

By Carabin Shaw

According to a study of data accumulated by the National Highway Traffic Safety Administration (NHTSA), obese drivers have a higher probability of dying in a car crash than those who are of normal weight. In fact, their chances of death in an accident are 80% higher than those who weigh less.

Transport safety researchers Thomas Rice and Motao Zhu related their findings in an online publication of the Emergency Medicine Journal.

Since one out of every three American adults is considered to be obese, this new study is alarming. Interestingly, the study revealed that obese females were at an even higher risk of being a car crash fatality than their male counterparts.

Time will only tell whether this study will invoke changes by automobile manufacturers to make vehicles safer for obese drivers.

The study that covered a 12 year period from 1996 to 2008, examined 57,500 car crashes. The data included all of the deaths that occurred within 30 days of the accidents.

One finding illustrated the fact that obese vehicle occupants in general had a host of other health problems that reduced the probability of surviving a serious injury. The other finding was that seat belts do not properly interact with the human body when one is obese. Simply put, the lower body of an obese driver continues to go forward in a crash while the upper body is held back. This is because the excess padding and abdominal fat cause a delay in the time it takes to tighten against the pelvis.

Obesity was determined by body mass index (BMI). A BMI of 30 and over is considered to be obese. A BMI of 18.5 is considered to be normal.

Some conclusions reached were:

• A driver with a BMI of 30 to 34.9 was 21% more likely to die in a crash than a driver with a normal BMI.

• A driver with a BMI of 35 to 39.9 was 51% more likely to die in a crash than a driver with a normal BMI.

• A driver with a BMI of 40 or higher was 80% more likely to die in a crash than a driver with a normal BMI.

Another finding in the study was that underweight men were more likely to die in a crash than those with a normal BMI. Underweight men were those with a BMI of less than 18.5.

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Published on: January 16, 2013

Texas Department of Transportation Blames Distracted Driving For Fatal Crashes

By Carabin Shaw

According to the Texas Department of Transportation, the East Texas rural roads are deadlier than traveling on other major thoroughfares and interstates. This news is released as new crosses are being erected at the scene of yet another fatality near Longview.

Even though the number of fatal crashes has gone down in recent years, over 50% of the fatalities in the surrounding five counties around Longview since 2007 have been one vehicle accidents. This has led the Department of Transportation to conclude that distracted driving is the culprit in these collisions.

Further evidence in support of this conclusion is the fact that only one death occurred in more than 90% of the fatal accidents. In the five county area including Gregg, Rusk, Harrison, Panola and Upshur, there has not been any single accident since 2007 that resulted in more than three fatalities.

Jean Dark, with the Texas Department of Public Safety (TDPS), stated that the reason is simply because most accidents occur on farm-to-market (FM) roads and involve only one car or pickup striking a tree, after leaving the road. This contrasts with multi-vehicle crashes on interstates. She explains that the difference is the tremendous impact that occurs when a vehicle strikes a stationary object such as a tree. It just “doesn’t give like another car would.”

The Department’s data indicated that 54% of all the accidents in the five county Longview area involved a single vehicle leaving the road, striking an object or flipping over. Only 38% of the wrecks involved two vehicles.

Dark said drivers just have to “pay attention to driving,” because if someone isn’t, it “can change your life.” For example, on two-lane FM roads, the oncoming traffic is separated from you by nothing more than a center stripe. You trust the other driver is paying attention and will stay on their side of the road. Unfortunately, sometimes they are distracted and they cross over into your lane.

Accidents resulting in fatalities have been around long before all of the gadgets we now have to distract us, such as cellphones, smartphones, iPads, iPods, headphones and GPS, just to name a few. Nationwide statistics show that distracted driving is one of the major causes of traffic fatalities. The TDPS data indicates that there were over 100,000 vehicles involved in accidents caused by distracted drivers in 2009 and new data is expected to confirm that those figures are continuing to rise.

Many of the crashes are the result of drivers trying to text message while driving. In 2009, the Texas Legislature passed a law which prohibits the use of any type of wireless device in a school zone. Another attempt to get a law passed to ban texting while driving is going to be on the table again during the 2013 legislative session. In 2011, Governor Perry vetoed a texting ban proposal.

Studies have shown that the use of a cellphone and texting while driving are equally, if not more dangerous, than driving while intoxicated.

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