cell phones

Texting and driving is a huge problem in Texas and across the United States. The most recent statistics available from the National Highway Traffic Safety Administration indicate that over 3,000 people die annually in texting-related automobile accident cases, and another 400,000 or more are hurt. The problem is particularly problematic among younger drivers.

Recently, a news report indicated that an east Texas woman and her son, who was paralyzed in a 2013 accident allegedly caused by a distracted driver, are seeking damages from the maker of the cellphone that the driver was using at the time of the accident.

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calendar with marker

Generally speaking, under Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a), a person who is injured in an automobile accident has two years in which to file a claim against the party whose negligence allegedly caused the crash. A failure to comply with this statute of limitations will usually prove fatal to a would-be plaintiff’s case, regardless of the merits of the underlying claim.

In addition to the formal filing of the complaint with the clerk of court, the plaintiff must also serve a copy of the complaint on the defendant. A recent appellate court decision explored the issue of the timeliness of service of process in a particular case.

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Supreme Court

In order for a trial court to adjudicate a case, it must have jurisdiction (both personal jurisdiction and subject matter jurisdiction) over the matter at hand. The same is true for an appellate court. It also must have jurisdiction over an appeal before it may proceed.

The mere fact that a lawsuit has been filed in a trial court (or an appeal taken to the court of appeals) is not enough. The court must have the legal authority to act, or else its decision will be invalid. Recently, a Texas appellate court was called upon to determine an interlocutory appeal in a case in which a private company that had contracted with the Texas Department of Transportation sought interlocutory review of a trial court’s denial of its motion for summary judgment based on immunity. First, the court had to determine whether it had jurisdiction over the appeal.

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scales of justice

When one person’s negligence causes injuries to another person, the injured person has a legal right to seek compensation from the responsible party for his or her damages. In a typical automobile accident lawsuit, the plaintiff’s damages will include things like medical expenses, lost wages, and pain and suffering. If the plaintiff’s injuries are of a permanent nature, he or she may ask for compensation for both past and future damages.

If the plaintiff is married, his or her spouse may seek loss of consortium damages, and the plaintiff may ask for punitive damages if the defendant’s conduct went above and beyond mere negligence into behavior that could be considered reckless or wanton and willful.

Most injury cases are tried to a jury, and the jury decides the damages that are due to the plaintiff. Sometimes, however, the parties agree to waive the right to a jury, and the trial court judge hears the case and decides the issues.

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white police cruiserGenerally, a person who is hurt by another person’s negligence is entitled to recover money damages if he or she can prove that the defendant owed a duty of care, that the defendant breached the duty owed to the plaintiff, and that the plaintiff suffered damages as a legal and proximate result of that breach of duty.

However, when the allegedly negligent person was working for a governmental entity at the time of the accident, the matter is more complicated. This is because, in Texas, governmental units are immune from both suit and liability unless immunity has been waived.

One situation in which immunity is specifically not waived is when a governmental employee is responding to an emergency call in an authorized emergency vehicle, such as a police cruiser. Even then, there are sometimes exceptions to the general rule, but it is often difficult for a plaintiff to get past the presumption of immunity in a particular case.

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police cruiserAt common law, the doctrine of sovereign immunity served to protect the king from suit. After all, it was reasoned, “the king could do no wrong.”

Unfortunately for those injured by modern-day governments, the doctrine of sovereign immunity is still alive and well in the United States, even though our country has not been under the ostensible power of a king for centuries.

Of course, there are some limitations to the doctrine and many instances in which the government can be held liable. If the parties cannot agree on the issue, it is up to the courts to decide cases in which the doctrine could potentially apply on a case-by-case basis.

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tractor trailersIn lawsuits involving tractor-trailer accidents, it is often to the plaintiff’s advantage to name as many potential defendants as possible, including the owner of the truck and the truck driver’s employer, if they are different entities. This is because the doctrine of vicarious liability can serve to hold not only a negligent driver but also his or her employer legally liable for damages resulting from the driver’s breach of the duty of care.

Of course, disputes can and often do arise concerning whether or not a given trucking outfit is a statutory employer under state and federal law.

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pouring beer

There’s an expression to the effect that a particular person “doesn’t have a dog in that fight,” meaning that it would be wrong for that person to try to interject his or her opinions into the matter. Of course, this basic principle goes far beyond the familiar phrase.

Recently, a Texas appeals court was called upon to decide whether restaurant owners who were the defendants in a separate dram shop action were entitled to intervene in the settlement approval of a lawsuit filed on behalf of a minor against a drunk driver, whom the restaurant allegedly served after it was obvious that he was a danger to himself and others.

When all was said and done, the appellate court ruled – at least in essence – that the restaurant owners “didn’t have a dog in that particular fight.”

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freeway trafficPersonal injury lawsuits, such as those arising from automobile accidents, are most often based on a theory of negligence. In order to be successful in a negligence lawsuit, the plaintiff must prove each of the four elements of negligence by a preponderance of the evidence.

These elements are duty, breach of duty, damages, and causation. If the plaintiff fails to prove any of these elements, his or her case against the defendant will fail, and the plaintiff will recover nothing from that party.

Sometimes it is up to the jury to decide whether the plaintiff has met his or her burden of proof, but sometimes such matters are addressed during pre-trial proceedings before the judge of the court.

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lawn mower

It is not unusual for an attorney to represent a person injured in an automobile accident on a contingency fee basis. Under such an agreement, no money is required up front. Instead, the attorney is paid a percentage of the settlement or judgment when the case is over. Both the attorney and the client have an incentive to accept such an agreement. The client gets legal representation without having to pay an upfront legal fee, and the attorney has the promise of payment when the work is done.

But what happens when there is another interested party that is not privy to this contractual fee agreement – for instance, an employer that has a subrogation interest in the case due to workers’ compensation benefits paid to the client because the injury in question happened on the job? Does that third party owe a legal fee? If so, how much?

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