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  1. semi truckRecently, a state appellate court issued an opinion in a Texas truck accident case discussing an important issue regarding what constitutes inappropriate comments with respect to a plaintiff’s ethnicity or immigration status. The case required the court to determine if the plaintiff should be granted a new trial after defense counsel made several comments alluding to the plaintiff’s inability to legally work in the United States.

The Facts of the Case

The plaintiff was injured in an accident with the defendant truck driver. The plaintiff claimed that the defendant made an illegal lane change and collided with her vehicle. According to the plaintiff, after the accident the defendant apologized for causing the accident, and admitted that it was his fault. The defendant later took back those statements, claiming that when he learned more about how the accident occurred, and the plaintiff’s role in causing it, he no longer believed he was at fault.

The plaintiff was not legally permitted to work in the United States and the defense counsel hoped to bring that fact to the attention of the jury. However, in a pre-trial motion, the court disallowed comments on the plaintiff’s immigration status.

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  • car accidentThe legal doctrine of negligence generally governs most injury claims. Thus, understanding what a plaintiff must to prove is an important part of any Texas injury case. Negligence means that a party acted or failed to act in a way that an ordinarily prudent person would have acted in those or similar circumstances. This is referred to as the standard of care.

The standard of care required in a given scenario depends on the facts of the case. Some considerations might include the dangerousness of the activity involved and the relationship between the parties. Therefore, a plaintiff must show that the defendant did something a prudent person exercising ordinary care would not have done (or failed to do something an ordinarily prudent person would have done) in those same circumstances.

In Texas, to prove a negligence claim, a plaintiff must prove 1) the defendant owed the plaintiff a legal duty; 2) the defendant breached that duty; and 3) the breach proximately caused the plaintiff damages. That means that in a Texas car accident case, a plaintiff has to prove that another person failed to meet the standard of care, which caused the plaintiff’s injuries. In some cases, the standard of care has been defined. For example, negligence per se is a concept where a certain standard of care has already been established. In that instance, a statute states what a reasonably prudent person would have done, and then the jury is asked whether the defendant violated the statute or regulation.

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Recently, a federal appellate court issued a written opinion in a Texas slip-and-fall case that arose after the plaintiff slipped and fell in a Wal-Mart store. The case required the court to determine if the trial court was proper in dismissing the plaintiff’s lawsuit after granting Wal-Mart’s motions for summary judgment. Ultimately, the court concluded that summary judgment was not appropriate for Wal-Mart because the plaintiff’s proposed theory of how the accident occurred was the most plausible among those suggested by the parties.store

The Facts of the Case

The plaintiff was shopping at Wal-Mart when he slipped and fell in a puddle of clear liquid that was left in an aisle. The puddle was at a low-lying area of the floor, where brown tile met white vinyl.

The incident was captured on low-resolution video that showed an auto-scrubber floor-cleaning machine pass over the area where the tile met the vinyl. The machine – which dispenses a soapy liquid, scrubs the floor, and then sucks up any remaining liquid – paused over the area where the plaintiff fell. The video was too poor in quality to determine with any certainty that liquid was left behind.

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Back in July of this year, three teenagers were involved in a serious Texas car accident after the driver lost control of the vehicle. After losing control of the Nissan Altima, the car veered off the road and into the median, where it slammed head-on into trees that cut the vehicle in half. While the driver survived with relatively minor injuries, both passengers died from the injuries they sustained in the accident.car accident

While investigating the fatal accident, police believed the driver to have been under the influence of alcohol. That was confirmed, and the teenage driver was arrested and charged with two counts of intoxication manslaughter. According to a recent news report, authorities have subsequently arrested a 29-year-old gas-station clerk who they believe may have sold the teenage driver fortified wine on the day of the fatal accident. The clerk denies he sold the minor alcohol, claiming that he always checks customers’ identification prior to selling them alcohol.

Dram Shop and Social Host Liability

While the driver involved in this tragic accident may have obtained alcohol from a gas station, more often than not under-age drinkers get alcohol from a friend’s parents or from a bar or restaurant. In some cases, the bartender may be a friend or acquaintance who serves the minor, knowing they are under-age.

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product liabilityEarlier this month, the federal circuit court overseeing the federal district courts in Texas issued an opinion in a personal injury case discussing several pertinent issues for Texas product liability plaintiffs. The case required the court to determine if a jury’s $3.4 million verdict in favor of the plaintiff was supported by sufficient evidence. Ultimately, the court concluded that the plaintiff’s evidence did support the jury’s verdict, and thus the verdict was affirmed on appeal.

The Facts of the Case

The plaintiff, through his wife, filed a product liability lawsuit against his employer as well as the manufacturer of a crane that the plaintiff was operating at the time of his accident. According to the court’s opinion, the plaintiff suffered a serious injury when the counterweights attached to a crane he was operating slid into the operator’s cab, knocking the plaintiff out of the cab and sending him head-first onto the concrete eight feet below.

The plaintiff claimed that the crane manufacturer was liable under a “failure to warn” theory. Essentially, the plaintiff’s argument was that the manufacturer’s included warnings failed to fully inform users of the risks involved with the crane tipping over. Additionally, the plaintiff argued that alternative warnings would have better informed him and may have prevented the accident.

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motorcycleIn a recent appellate case, a Texas motorcycle accident plaintiff challenged the trial court’s admission of evidence related to causation and prior extraneous offenses. The motorcyclist was driving in the right lane on a service road when an 18-wheeler truck swung into the middle lane to make a right turn. He tried to pass on the right, and a truck cut him off to make a turn. He steered into a curb, flew over the handlebars, and was seriously injured under the tires of the truck.

He was speeding when he tried to pass. The truck company, but not the driver, admitted the right turn was wider than necessary. The lower court refused to permit testimony from the only eyewitness that the motorcyclist and the truck driver were equally at fault. An officer who investigated the accident determined that the motorcyclist had tried to pass the truck unsafely. Both sides presented expert testimony. After a two-week trial, the jury determined there was more than $7 million in damages. It found that the truck driver was 25% negligent and that the motorcyclist was 75% negligent. A take-nothing judgment was entered.

The motorcyclist appealed. He argued it was improper to admit the officer’s testimony that he caused the crash by passing unsafely on the right as well as presenting evidence of his prior bad acts. The company and the truck driver argued he waived those complaints because he discussed the evidence in his opening statement and also introduced it at trial. Specifically, the plaintiff’s attorney had commented that he was no Boy Scout and had evaded arrest, among other things, and that the police officer didn’t talk to the only eyewitness in stating that the motorcyclist passed unsafely to the right.

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Common Links to More and More Trucking Accidents 

With a 20% increase in trucking accidents over the last two decades according to the Federal Motor Carrier Safety Administration (FMSCA), there are more and more trucking accidents occurring across Texas.

And when these types of accidents occur typically the result is much more severe, as the large truck or semi is often 20 times the size and weight of most other vehicles on the road.

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Earlier this month, the state’s high court issued a written opinion in a Texas workplace injury case requiring the court to determine whether the trial court was acting within its discretion when it precluded video evidence without actually viewing the video. Ultimately, the court concluded that “except in rare circumstances,” a court must observe a video before determining if it should be admitted into evidence.

Legal News GavelThe Facts of the Case

The plaintiff was a senior mechanic on an offshore drilling rig. One day while at work, the plaintiff injured his back. The plaintiff underwent two back surgeries within 13 months, but the pain remained. He was never able to return to work. The plaintiff’s physician determined the plaintiff was “totally disabled.”

The plaintiff filed a workplace injury claim under the Jones Act, claiming that his employer was negligent and that the drilling rig was not seaworthy. After the case was filed, the plaintiff underwent a functional capacity evaluation (FCE) to determine his physical abilities. The results of the FCE indicated that the plaintiff’s responses were consistent with someone who was exaggerating their symptoms.

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Legal News GavelIn a Texas medical malpractice case, the lower court dismissed the plaintiffs’ claim without giving them a 30-day extension to fix deficiencies in their expert reports. The case arose when a man was admitted to a medical center and was diagnosed with the narrowing of a carotid artery and the occlusion of a coronary artery. He had coronary surgery. After the surgery, he suffered from a lack of oxygen to the brain. The family decided to take him off ventilator support, and he died the next day.

His wife sued the medical center, a health system foundation, and a doctor under the wrongful death and survival statutes. She claimed medical negligence and gross negligence against the defendant, as well as respondeat superior against the entities.

The plaintiff claimed the entities were liable because the nurses didn’t institute several interventions to fix the critically low oxygen saturations and that they should be liable under the doctrine of respondeat superior because their negligence had caused the man’s death. They served two expert reports on time under Texas Civil Practices & Remedies Code section 74.351.

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In some cases, employers can be held responsible for their employees’ actions, including Texas car accidents involving employees. In a recent decision, a Texas appeals court considered the employer’s responsibility after its employee was involved in a car accident. The plaintiff was in a car accident with a moving company’s employee, which resulted in the plaintiff’s injuries. The employee made a left turn across a four-lane highway as she was leaving a parking lot. The plaintiff was unable to avoid the employee’s car and drove into the left side of the employee’s car. The employee was cited for failing to yield the right of way.

Legal News GavelThe plaintiff sued the moving company, alleging it was vicariously liable for the employee’s negligence. The plaintiff also alleged that the moving company failed to properly supervise its employee, negligently hired the employee, and negligently retained the employee, among other claims. The moving company argued the case should be dismissed because the employee was not acting in the course and scope of her employment with the company at the time of the collision.

Vicarious Liability

Vicarious liability refers to the liability of an employer or another responsible party for the actions of another person. Under one type of vicarious liability, known as respondeat superior, an employer may be held liable for the negligent acts of its employee if the employee’s actions fall within the course and scope of the employee’s employment. According to Texas law, an employee’s acts must be within the scope of the employee’s general authority, in furtherance of the employer’s business, and taken to accomplish a task for which the employee was hired. In addition, generally an employee is not in the course and scope of employment while driving to and from work.

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