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Last month, a state appellate court issued an opinion in a Texas wrongful death case involving allegations of medical malpractice. The case required the court to determine if the lower court correctly concluded that the testimony of the plaintiff’s expert was conclusory, and thus “no evidence.” Ultimately, the court found that each of the expert’s opinions was supported either by his experience or by his review of medical literature.

The Facts of the Case

According to the court’s opinion, the plaintiff had an episode where he became disoriented and confused while in a gas station parking lot. The plaintiff was taken to the hospital, where a series of tests were performed. The plaintiff was then referred to a neurologist.

The neurologist reviewed the tests and believed that the plaintiff suffered from aqueductal stenosis, which can lead to hydrocephalus (a build-up of fluid in the brain). The neurologist determined that a shunt should be placed in the plaintiff’s brain, and referred the plaintiff to a neurosurgeon.

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While some Texas car accidents are caused exclusively by the negligence of one party, many accidents are the result of shared responsibility. In these cases, Texas courts use the state’s proportionate liability statute to determine which accident victims can pursue a claim against the other parties involved in the accident.  Specifically, the law allows for anyone involved in a Texas multi-vehicle accident to seek compensation for the injuries they sustained, provided that their percentage of fault is determined to be 50% or less.

Typically, a jury will determine a party’s percentage of fault at the court’s instruction. One question that frequently arises in many Texas car accidents is whether the jury can consider a motorist’s failure to wear a seatbelt as a factor in determining a party’s potential negligence.

Seatbelt Non-Use Evidence

When it comes to seatbelt non-use evidence, courts typically take one of three different approaches. Some courts can allow seatbelt non-use evidence to be considered by the jury when determining a motorist’s percentage of fault. Other courts only allow a plaintiff’s failure to wear a seatbelt during the damages phase of the trial, after liability has been established. And finally, some courts prohibit seatbelt non-use evidence altogether.

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Last month, a state appellate court issued a written opinion in a Texas premises liability case discussing when a landowner can be held liable for injuries caused on their property by accumulations of snow or ice. Ultimately, the court concluded that the plaintiff failed to establish that her slip-and-fall accident was the result of an “unnatural” accumulation, and thus the court affirmed the lower court’s granting of summary judgment in favor of the defense.

The Facts of the Case

According to the court’s opinion, the plaintiff was injured when she fell on a patch of ice as she was walking into a shopping mall. Evidently, the plaintiff arrived at the mall two days after a winter storm had left several inches of snow on the ground. The plaintiff parked her car in the mall parking lot, exited her vehicle, and began to approach the entrance. As the plaintiff was walking up a sloped pedestrian walkway, she fell and landed on a patch of ice. After her fall, the plaintiff noticed that there was a grainy substance, either sand or deicer, on the ground. The plaintiff also saw that there was a pile of snow at the top of the sloped ramp.

The mall filed a motion for summary judgment, arguing that under Texas law a landowner is not liable for injuries caused by the natural accumulation of snow on their property. The plaintiff claimed that by piling the snow at the top of the ramp and by applying sand or a deicer, what may have been initially a natural accumulation of snow became unnatural.

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Although dogs are considered man’s best friend, Texas dog bite cases are more common than many people realize. To be sure, the vast majority of dogs are friendly, but some dogs are trained by their owners to be vicious guard dogs. In other situations, owners abuse or neglect their animals, resulting in the animal developing anti-social behavior towards humans. Regardless of the cause, sometimes dogs but people, often without provocation.

Unlike other states, Texas does not have a specific dog-bite statute. Instead, courts apply general principles of negligence when reviewing most Texas dog bite claims. However, there are situations where an animal owner will be subject to strict liability.

Texas Dog Bite Cases Brought under the Theory of Negligence

Most Texas dog bite cases alleged that the owner was negligent in some manner, and that the owner’s negligence resulted in their dog biting the accident victim. To establish liability against a dog owner in a negligence claim, the victim must be able to show that the owner either failed to use reasonable care to control the animal or prevent it from biting another person. For example, letting a dog run around in a yard without a fence may be a situation where the dog’s owner failed to use reasonable care.

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One of the first considerations in a Texas car accident case is which of the parties involved should be named as defendants. This is an important decision for several reasons. First, failing to name a potentially liable party could result in the named defendants shifting blame onto the unnamed party. Second, given the low insurance requirements in Texas, an accident victim can very easily sustain more serious injuries than can be recovered under a single insurance policy.

Of course, only parties that were potentially negligent can be named in a Texas personal injury case. However, it is a common misconception that the at-fault driver is the only negligent party. In many cases, an at-fault driver was not the owner of the vehicle involved in the accident and was permitted to use the vehicle by a friend, family member, or employer. This is where the doctrine of negligent entrustment comes in.

The doctrine of negligent entrustment allows an injury victim to hold the owner of a vehicle liable for negligently allowing another person to use the vehicle. Under Texas case law, a plaintiff must be able to establish:

  • The owner entrusted the vehicle to the driver;
  • The driver was unlicensed, reckless, or incompetent;
  • The owner knew the driver was unlicensed, reckless, or incompetent;
  • The driver was negligent; and
  • The driver’s negligence caused the plaintiff’s injuries.

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Any individual in Texas who operates a motor vehicle while intoxicated commits the offense of driving while intoxicated. This includes intoxication not only by alcohol, but also by illegal drugs and even prescription drugs, as long as the drugs have an intoxicating effect on the driver. If a driver is arrested for a Texas DWI, this evidence can be useful in a subsequent personal injury case against the driver.

Of course, as in any case, a plaintiff in a personal injury case must still prove each of the elements of the claim she is bringing. This means that a driver’s arrest and conviction for DWI does not necessarily result in the driver being found liable in a civil case. For example, in a Texas personal injury case, a plaintiff must prove all the elements of negligence, including that the defendant’s conduct caused the plaintiff’s injuries. This means proving both that the crash was a result of the defendant’s conduct and that the defendant’s conduct caused the plaintiff’s injuries. A defendant might argue that the plaintiff was at fault for the crash, or at least contributed to it, or that the plaintiff’s injuries were not caused by the accident, among other defenses.

NTSB Finds Driver Was Impaired by Marijuana and Prescription Drugs in Fatal Texas Crash

A driver involved in a Texas car accident that left 13 people dead was under the influence of marijuana and prescription drugs, according to the National Transportation Safety Board (NTSB). As one news source reported, the NTSB investigated the crash and recently released its findings. The NTSB found that the driver failed to control his pickup truck because he was impaired by marijuana and had misused prescription drugs.

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In some Texas car accident cases, one or more drivers involved in the accident may be issued a traffic citation, causing some to wonder what impact that could have on a subsequent personal injury claim. Under Texas law, a motor vehicle driver must exercise reasonable care under the circumstances presented. This means that the level of care that is required in ordinary circumstances may not be sufficient in other situations. For example, the reasonable care required may be different when it is raining or snowing, or while driving in bumper-to-bumper traffic.

If a driver is issued a citation for a traffic violation, some evidence concerning the violation may be able to be used in a Texas personal injury claim. If a driver violates a traffic law or similar statute, evidence of that violation may constitute negligence per se, or negligence as a matter of law. However, the violation of a statute does not always mean there will be a finding of negligence per se. If the court determines that the defendant was negligent per se, then the jury will be instructed that is the case and the only issues for the jury to determine are causation and damages.

Texas courts consider various factors in determining whether a violation of the statute constitutes per se liability, including whether the plaintiff’s injury is due to a direct or indirect violation of the statute, and whether the statute would impose liability without fault.

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Determining fault in a Texas car accident can be a very complex matter, depending on the surrounding circumstances. While some accidents involve few parties and present straightforward issues, other cases involve complex fact patterns that require judges and juries to consider and apply numerous legal doctrines.

One of the more common issues that can arise in a Texas personal injury lawsuit that may make the case more complicated is the presence of multiple parties, each of which shares some amount of fault in causing an accident. A common example of this type of case is a Texas chain reaction accident.

In these cases, Texas courts apply what is commonly known as the doctrine of comparative fault. In Texas, however, the doctrine is referred to as “proportionate liability.” Chapter 33 of the Texas Civil Practice & Remedies Code discusses proportionate liability and how it applies in Texas personal injury cases.

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All Texas personal injury cases must comply with procedural requirements. For example, under the statute of limitations, all claims must be filed within a specified period after an accident. This and other requirements help the court system efficiently deal with the large number of cases that are filed each year.

Due to the increasing number of Texas medical malpractice cases, some of which are ultimately determined to be without merit, lawmakers have determined that Texas medical malpractice cases are subject to additional procedural requirements. It is essential that all Texas medical malpractice plaintiffs understand the nature of their claims and the procedural requirements that they must follow because a plaintiff’s failure to follow the requirements can result in a plaintiff’s case being dismissed.

The Notice Requirement

Under Texas Civil Practice and Remedies Code section 74, a plaintiff must notify each of the named defendants of her intention to file a lawsuit at least 60 days before the claim is officially submitted. This notice must contain a signed authorization for the release of the plaintiff’s relevant medical records.

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A Texas appeals court recently issued an opinion providing guidance for Texas medical malpractice claimants on the requirements for expert reports submitted in accordance with the Texas Medical Liability Act.

According to the plaintiff, she went to the emergency room at a hospital in Southeast Texas in 2012 complaining of chest and back pain. The plaintiff went to the hospital six times over the next few weeks complaining of continued pain, as well as shortness of breath, shoulder pain, neck pain, weakness in her legs and difficulty walking, and loss of bowel and bladder control. It was not until she was transferred to another hospital that she was finally diagnosed with a compression fracture in her spine, which ultimately rendered her a paraplegic.

The plaintiff sued the hospital and two hospital physicians for negligence. She alleged that the hospital failed to recognize the signs of a spinal compression fracture and did not take into account her history of osteogenesis imperfecta, which resulted in a delay of treatment and caused her paraplegia. The claimant submitted expert reports, and the hospital argued that the report failed to meet the requirements for expert reports under the Texas Medical Liability Act. The trial court agreed and dismissed the claims against the hospital.

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