IV. Liability Articles

One Vehicle Accidents

When we read or hear about someone killed or badly hurt in a one car accident, we automatically assume that the accident and/or the injuries are entirely the driver’s fault. Right? However, a surprising amount of the time equipment malfunction or bad safety design plays a major part in how the accident occurs or how bad the injuries are.

One of the most common causes of one vehicle accidents is when the right wheel drops off the right side of the roadway, causing the driver to reflexively yank the wheel to the left. This makes the vehicle go sharply to the left and then roll over as the driver desperately steers hard back to the right to try to stay on or get back on the road. Many times the drivers caught in this scenario are young people or other less experienced drivers.

There are computerized steering/brake control systems that have been available to auto manufacturers at a reasonable cost for nearly 10 years that limit or totally prevent this type of accident. Yet many car manufacturers have chosen not to install these proven safety devices in their vehicles because they are not yet required by Federal Law. Under U.S. and Texas law, car manufacturers can be held responsible for unsafe design choices in the vehicles they sell.

A couple of recent examples of unsafe design choices would be under inflated Firestone Tires on top heavy Ford Explorers causing roll overs or the Crown Victoria/Mercury Marquis/ Lincoln Town Car body styles bursting into flames or exploding when hit hard in the rear.

Even if the driver or someone else is at fault, unsafe design choices can greatly increase the risk of a serious injury or death. Some examples would be defective air bags, defective seatbelt locks, or defective door locks that allow occupants to be thrown out and crushed during a roll over. Another example would be a weak/defective roof design that allows the roof to collapse onto an occupant’s head during a roll over.

If you know the family of someone severely injured or killed in a one vehicle accident, suggest that they contact a Board Certified Personal Injury Trial Lawyer who specializes in auto collisions to investigate whether or not the injuries or death were preventable by well known and established auto safety design standards. It is essential that this investigation be done while the vehicle involved is still available for inspection by a qualified expert.


Eighteen Wheeler Truck Accidents

There are more than 30,000 injuries and more than 3,000 deaths from collisions involving eighteen-wheelers (semi-trucks) and other commercial vehicles every year. We have more than our fair share in Bell County because of I-35.

It takes experience and resources to maximize your or your family’s recovery against a major trucking or transportation corporation. Besides the obvious errors such as driving too fast, tailgating, unsafe lane changes, etc., a Board Certified Personal Injury lawyer will investigate additional contributing factors such as:

Safety Defects in the Truck (underride guards, defective air brakes, etc.)
Unqualified Drivers (vision impaired, high blood pressure, bad record, etc)
Fatigued Drivers (falsified log books, violation of drive time rules)
Faulty Equipment or Maintenance (especially the air brakes)
Overloaded Trailers (over weight affects stopping distance)

In one death case I discovered that the truck driver was blind in his left eye. This truck driver never saw the car driving in the left lane beside him until it was too late. I proved that the company knew this and even had three other vision impaired drivers driving in Texas. In another death case where the truck driver ran a yield sign, I found that the truck driver had 5 DWIs and over 20 traffic tickets in a five year time period, but was still driving. If the company had reported these violations as required by Federal law, this dangerous driver would have been suspended and this collision/death would have never happened. In one case, I uncovered that the truck’s air brakes were not properly adjusted, causing the fully loaded truck (80,000 lbs) to travel twice as far as it should have before crushing the back of my client’s car, killing a child in the back seat.

Too many trucking companies hire inexperienced and unqualified drivers that are dangerous to the driving public. Even qualified drivers can make mistakes if they are encouraged or allowed by trucking companies to violate Federal driving restrictions or they are given unsafe equipment. These companies must be held accountable when they cut corners on training, maintenance, or safety.

Business Premises Liability And Product Liability

Recovering Damages For Injuries

A shopper is not automatically entitled to recover damages for injuries that happen at a place of business. If a person goes on another’s property at the express or implied invitation of the possessor of the property, when the premises are open to the public, or for a purpose connected with the business of the possessor of the property, such a person is called an “invitee”.

A person in possession of premises has a duty to all invitees to exercise ordinary care to keep the premises in reasonably safe condition. This duty includes a duty to inspect the premises to discover any hidden defects and to make safe any known or reasonably discoverable defects or to give an adequate warning.

For example, if a business shopper slips and falls at a business, the injured shopper must be able to prove that the store employees actually knew or had an opportunity to discover that the floor was slippery and failed to clean up or warn the shopper before the fall. Most slip and fall cases are turned down because the injured shopper cannot prove how long the employees knew or should have known that the floor was slippery before the fall.

A person has a duty to exercise ordinary care. If the injured person’s contributing responsibility is found to be 51% or greater, there is no recovery. For example, if the danger/hazard is so obvious that the store should have seen it, why did the person who fell not see it and avoid it. This type of case is also harder to prove if the injured person is overweight or wearing high heels.

Most responsible businesses have limited no fault medical coverage that will cover medical bills and lost wages of shoppers injured on their premises no matter how the fall or injury happened. This coverage is usually only $2,500-$5,000. You should not need a lawyer to collect the no fault medical coverage. If you have long term or permanent injuries you will probably be forced to hire a lawyer to collect your long term damages under the business’s liability insurance coverage.

Through The Eyes Of A Child

The conduct of a child is not judged by the standard of an adult. The Texas Courts have held generally that a child below the age of five can not be held responsible for his own injuries at all. Yet a child fourteen or older is generally treated like an adult, if the child contributed to his own injury. Children between five and fourteen are judged by what is expected of a reasonably prudent child of the same age, intelligence, experience, and capacity as the injured child.

On the other side, the driver of motor vehicle has a higher duty care to watch out for the unexpected actions of a child (hot wheels, pedestrian, bicyclist, etc.) than they do for the unexpected actions of an adult.

In addition, the failure of the child’s parents to properly supervise the child’s activities or whereabouts can not be used to limit the amount a child can recover for his/her injuries. In fact, a child can recover from the insurance policy of his own parents if one of the parents accidentally causes or contributes to the injury of the child (even if the parent merely allows the child to ride with an incompetent or intoxicated driver). Even if the driver of the child’s car primarily caused the accident, this generally can not be used against the child to limit the child’s right of recovery from the other driver.

Because of these rules we recommend that people with property to protect carry at least $100,000 or more in liability insurance. If you already have liability insurance, the cost to increase your protection to $100,000 or more is usually less that $100 per car per year. Even if you are a safe driver, if a child is injured in a collision there is a good chance that you will have to pay.


Damages From Defective Products

If a business designs, manufactures, or sells a product in a defective condition, unreasonably dangerous to the public, it may be held responsible for the injuries caused by the product defects.

A product may be defective in design such as the Ford Pinto gas tanks that exploded if the car was hit from behind. A product may also be defective in its manufacture. For example, if the wheel is not tightened properly at the factory and comes off while the car is being driven or a tire blows out and causes an accident because the sidewall was not properly bonded to the tire.

A product may also be defective if it is manufactured or sold without adequate warning or instructions. A flagrant example of the failure to warn would be the John Mansfield Company that not only manufactured and sold asbestos to the public without warning of the health hazards known to the company, but went to great lengths for nearly thirty years to conceal the health hazards known to the company from the public and its own workers.
A manufacturer may also be liable if a defective product increases only the severity of injuries or damages. A good example would be a door lock or airbag that malfunctions during an accident thereby causing the occupant of a car to be more severely injured than they would have been if the product had functioned properly.

If you have been injured by a defective product, it is very important that the product be preserved and not disposed of or damaged before it is examined by an expert. All products liability cases should be examined as soon as possible in order to properly preserve the physical evidence.


Medical Negligence In The Emergency Room

Medical carelessness or negligence that causes injury or death to a patient is now legally acceptable in Texas emergency rooms.

For over 150 years Texas juries decided all medical negligence on the standard of What should a reasonably prudent or careful medical professional (doctor, nurse, technician, etc.) be expected to do, or not do, under the same or similar circumstances.

This was changed in 2003. Now doctors, nurses, or other emergency room personnel cannot be held responsible for their carelessness or mistakes unless the injured person or their family can prove that the emergency room health care provider with willful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.

Willful and wanton negligence is defined by the Courts as such an entire want of care as to establish that the act or omission complained of was the result of actual conscious indifference to the rights, safety, or welfare of the persons affected by [email protected] In other words, an injured person or his family must be able to prove that the doctor or other emergency health care provider caused the injury or death deliberately or with actual knowledge that their care would cause the patient an injury before the injured person or their family can be fairly compensated.

Since it is nearly impossible to convince a Texas jury that physicians or other emergency care health providers would deliberately or intentionally injure or kill a patient, it is now nearly impossible to win compensation for a patient or patient’s family for mistakes or carelessness in the emergency room. Because it is now virtually impossible to win one of these cases, lawyers in Texas are now forced by practicality to turn away cases for patient injuries or death caused by emergency room carelessness or mistakes.


The Free Bite Rule

A dog is considered a domesticated animal under the law. The standard of care that the owner of a dog owes to the public is the same as that ordinarily applied for negligence. The owner must use the same care as a reasonable person under the same or similar circumstance.

However, if the owner of the dog has knowledge that the dog has a vicious or dangerous disposition to injure persons or property, the owner is strictly liable for injuries caused by the dog except to trespassers. Similar rules have been applied to domesticated animals since Biblical times. See the rules applied by Hebrew Law to oxen, found in the set of legal principles or examples called The Judgments at Exodus 21:28-36.
It is often difficult to prove that a dog owner knew or should have known the dog was dangerous to persons or property. For this reason, some have sarcastically said that a dog is entitled to one free bite before the owner is put on notice that the dog is vicious or dangerous.

A business owner’s commercial liability insurance or a home owner’s home liability insurance policy will usually cover damages caused by the owner’s dog even if the dog has gotten out and causes damage away from the owner’s property.

The owner’s insurance generally will pay medical bills that have accumulated at the time of settlement without your having to hire a lawyer. However, if you want the insurance company to pay reasonable pain and suffering, mental anguish, physical impairment, disfigurement, or future medical expenses for plastic surgery to reduce the dog bite scars, you probably will be forced to hire a lawyer.


Medical Malpractice

Medical malpractice is primarily the failure by the medical care provider to use the proper standard of medical care. Medical malpractice is almost always due to some human mistake or error. Many mistakes are caused by failure to follow standard policies or procedures, poor communications, or heavy workloads.

Injuries caused by a doctor, hospital, or other medical care provider can be among the most devastating. Medical malpractice is an extremely emotional issue because of the child-like trust that many patients have for their medical care providers and the commitment most medical care professionals have to give quality care.
Many patients seem to feel that the medical care provider must be at fault if there is a disappointing result after medical care.

Just as extreme is the attitude by a medical care provider that a medical malpractice claim is a personal attack on their integrity or profession rather than just a claim for insurance compensation for injuries caused by human error or mistake.

It is difficult to find medical experts who will express an opinion against local colleagues and associates. Due to this “conspiracy of silence”, it is often necessary to hire out-of-state experts to express an opinion on local medical care.

Potential cases are turned down if consulting medical experts do not find sub-standard care or if the damages are not bad enough to justify the high cost of preparing and trying the case.

Generally medical malpractice cases are barred if they are not filed within two years of the date of malpractice. It is best to have your claim fully investigated as soon as possible.


Rights And Duties Of Pedestrians

In Texas, generally every vehicle driver is required to exercise due care to avoid colliding with any pedestrian (walker, jogger, etc.). A driver has even a higher duty of care by law if they see a child or incapacitated person upon a roadway.

A pedestrian has the legal right of way when he/she is crossing a roadway in a marked crosswalk or at ANY intersection even if the intersection crosswalk is not marked. If there is a traffic light OR sign at each end of a block, it is unlawful for a pedestrian to cross a roadway anywhere but at the intersections.

A pedestrian crossing at any intersection has the right of way over traffic from all directions, including any traffic turning at an intersection. However, if there is a three color traffic light or “Walk/Don’t Walk” lights at an intersection, the pedestrian must also obey the lights.

It is unlawful to walk or jog on the side of the roadway in the same direction as traffic in your lane. You must walk or jog facing the traffic in your lane. This law is frequently violated in residential areas. If sidewalks are available, it is illegal for pedestrians to travel in the roadway at all. A pedestrian violating these traffic laws can be fined up to $200.

Bicycles are treated as vehicles under the traffic code, not as pedestrians. For example, a bicycle crossing in the middle of the block or going opposite of traffic is failing to yield the right-of-way.

If you or a family member is injured by a careless driver, there may be Personal Injury Protection and Uninsured/Underinsured Motorist coverage under your family’s auto policy, even though you were walking at the time. However, if you settle with the guilty driver’s insurance company without written permission from your insurance company, you may lose your right to future or additional damages and medical expenses from your own insurance.


Wrongful Death

The unexpected death of a loved one is always a tragic event. The loss of a husband or wife or other family member often has horrible consequences for the entire family. Wrongful death lawsuits must generally be filed within two years of the date of the negligence and must be filed by the estate of the person killed or by an immediate family member. A husband, wife, child, mother, or father can recover for the death of the family member. While money damages cannot replace the life of a loved one, such compensation is many times the only way to provide for the financial future of the family. Such suits also help to make unsafe companies and individuals act in a safer and more responsible manner so as to prevent such tragedies in the future.

Photo of James O. Cure

James O.Cure

Board certified in Consumer Bankruptcy Law and Civil Trial Law by the Texas Board of Legal Specialization.



Photo of John R. Francis

John R. Francis

Board certified in Personal Injury Trial Law and Civil Trial Law by the Texas Board of Legal Specialization.

Personal Injury

Business & Commercial Litigation