Car Accidents

Published on: August 17, 2016

Construction Zone Accidents in Texas

In Brown v. RK Hall Construction, Ltd., a 21-year-old plaintiff drank alcohol at a friend’s house and then tried to drive home shortly after midnight. The plaintiff drove into a construction zone, hit a piece of construction machinery that was parked in an area surrounded by a barricade away from the traffic lane, and suffered serious injuries.

A trooper came to the scene and reported that she’d ignored a warning sign and drove into the barricaded area. The plaintiff argued that she saw the barricades, but they were in the middle of the highway and didn’t show which lane was closed. She sued the contractors, RK Hall and Stacy Lyon, for negligently failing to generate and implement a plan for traffic safety. The contractors argued in response that they’d complied with the Texas Department of Transportation Traffic Control Plan for the project. The trial court agreed with the contractors and granted summary judgment for them.

The plaintiff appealed. The appellate court explained that contractors that repair roads for the state must conform to the specifications of the governmental unit supervising the work. A contractor for the Texas Department of Transportation that substantially complies with contract documents is immune from liability in personal injury lawsuits brought as a result of the work.

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Published on: August 17, 2016

Evidence for Noneconomic Damages in a Texas Truck Accident Case

By Carabin Shaw

In Swearinger v. Guajardo, the plaintiff was hurt when a truck driven by the defendant and owned by United Van Lines hit his car. The plaintiff sued the defendant for negligence and brought in the defendant’s employer under a theory of respondeat superior and negligent entrustment.

The jury found the defendant employee negligent and awarded the plaintiff damages for past physical pain and mental anguish, future physical pain and mental anguish, and past and future physical impairment. The defendant and his employer filed a motion for a new trial, which was denied.

The defendant and the employer appealed, arguing that the evidence was insufficient to support the jury’s damages award. The appellate court explained that it would sustain a no-evidence challenge on appeal when there is no evidence or only a scintilla of evidence to support a vital fact, the court is barred from giving weight to that evidence, or it conclusively establishes the opposite of the vital fact.

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Published on: July 21, 2016

Inconsistent Testimony Leads to Texas Personal Injury Plaintiff’s Loss

By Carabin Shaw

In Imamovic v. Milstead, a Texas appellate court considered a rear-ending case in which the jury awarded zero damages. The case arose when the 42-year-old plaintiff was working as a vehicle-for-hire inspector for a city, traveling around the city to inspect cabs, limos, and buses. While she was stopped in her Prius at a red light, a truck struck her car from behind. She claimed the force caused her to want to black out. Later, an investigator concluded that both her car and the truck were stopped at a red light when the truck moved and hit the back of the car.

When the police responded to the scene, the plaintiff told them she didn’t need medical care, and she drove away in her Prius. She woke up feeling sore, and the day after that, the pain in her neck was unbearable. She made an appointment with a doctor who worked for her primary medical provider. He prescribed her pain medication and anti-inflammatories and ordered x-rays. The plaintiff claimed the doctor ordered physical therapy, but the doctor didn’t note this order.

The doctor’s notes said he put the plaintiff on light transitional duty and told her to come back for follow-up. She went to physical therapy but didn’t go back to work and waited two months before coming back to see the doctor. Her excuse when testifying was that she didn’t think the doctor would do anything for her, and she didn’t control when the medical center scheduled its appointments. Continue reading →

Published on: June 12, 2016

Texas Property Owner’s Responsibility to the Traveling Public

By Carabin Shaw

In Hoke v. The Campbell Group, LLC, the plaintiff appealed the granting of summary judgment to defendants The Campbell Group, LLC and Crown Pine Timber 1, L.P. in a premises liability lawsuit. The case arose when the plaintiff’s car crashed into a logging truck while they were both traveling on Highway 96.

The plaintiff was in the right lane, and the logging truck was in the left. The truck tried to turn onto a private logging road that was owned and managed by the defendants. It turned in front of the plaintiff and hit the brakes, thereby stopping in the road. The plaintiff hit the back of the truck and suffered injuries.

She sued, alleging that (1) the defendants failed to use adequate signs to warn the public of any unusual commercial activity, (2) the defendants failed to inspect the site for possible hazards that would interfere with those traveling through the area, (3) the defendants failed to use a safe worksite plan to reduce hazards to the public, and (4) the defendants failed to provide a safe entrance for logging trucks trying to get onto their property. The petition didn’t reference negligence per se, negligent activity, or any statute.

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Published on: June 12, 2016

The Discretionary Powers Exception in Texas

By Carabin Shaw

In City of Austin v. Frame, a Texas Court of Appeals considered a lawsuit filed against the City by four plaintiffs under the Texas Tort Claims Act and recreational use statute after an accident. The case arose when a man drove his car off the street, jumped a curb, and drove onto a hike-and-bike trail next to the road. The vehicle hit two pedestrians, one of whom died of his injuries. The plaintiffs sued the City for negligence, gross negligence, premises liability, special defect, and breach of duty under the recreational use statute.

The plaintiffs claimed the City failed to safely construct the trail, knew of prior instances of vehicles traveling over the curb onto the trail in the same place, and failed to correct or warn about this dangerous condition. They also claimed the City’s policies required it to take corrective action about known safety hazards and that it should have constructed a guardrail in response.

The City argued it was immune from suit because the Texas Tort Claims Act didn’t waive governmental immunity for discretionary decisions about how a road should be designed and whether specific safety features should be installed. It also claimed that the plaintiff couldn’t amend the complaint to cure the problems with it because the facts pled in the complaint only related to discretionary decisions. The plaintiffs argued that there was no immunity because the City’s failure to address the known safety hazard was a failure to implement its own policy, and it was not a design decision or initial policy for which it could be immune.

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Published on: April 10, 2016

Sufficiency of Evidence to Recover Lost Tuition After Texas Car Accident

By Carabin Shaw

In Rizzuti v. Smith, an appellate court considered whether there was enough evidence to support the jury’s awards related to a plaintiff’s medical expenses and loss of a college tuition payment. The case arose when the defendant (Rizzuti) backed his car into the plaintiff (Smith), who was behind the car. Both the defendant and the plaintiff were with others who had been drinking at nearby bars. Somebody in Smith’s group observed the defendant back over the plaintiff and then move forward and run over the plaintiff another two times.

The plaintiff suffered many injuries and had to go through twelve surgeries. The biggest injury was from his dislocated left knee. At the time of his injuries, the plaintiff was going to junior college. He later claimed that his injuries stopped him from finishing the coursework for his spring semester, and that he lost $1500-$2000 in tuition because of the accident.

At trial, a jury determined that both the defendant and the plaintiff were negligent. However, it assigned 82% of the responsibility for the accident on the defendant and only 18% on the plaintiff. It also found the defendant’s actions were grossly negligent. It awarded the plaintiff $6000 for mental anguish and past pain, $3000 for future mental anguish and pain, $1500 for the loss of his tuition, and $112, 753.60 for his medical expenses, including the past surgeries. It determined that he hadn’t proved future medical expenses or impairment, and no punitive damages were awarded. The trial court’s final judgment was for $102,957.95.

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Published on: March 20, 2016

Single-Vehicle Accident in Texas

By Carabin Shaw

In Homman v. Kugler, a husband and wife involved in a single-vehicle accident sued a retail outlet and its owner, who was also the man who loaded their trailer. The plaintiff worked for David’s Patio, and on the day of the accident, he was driving a pickup and trailer for the defendant retail outlet to pick up angle irons. The owner of the retail outlet used a forklift to put the loan on the trailer. The plaintiff used only a single strap to secure the load and then drove back to his company.

The plaintiff started to get onto the freeway, but the trailer began swaying, pushed forward, and lifted the back wheels of the pickup. The pickup spun, balancing on two wheels on its side, and then the trailer broke off and rolled away. The pickup sat back down on its four wheels. The plaintiff wasn’t cited for the accident and did not see a doctor right away.

He went back home feeling sore. The next day, when he woke, he felt sore from his upper buttocks to his skull. He went to the doctor and was diagnosed with herniated and bulging discs. The doctor prescribed physical therapy and epidural steroid injections. He was also told he needed fusion surgery on his lower back, but he hadn’t gotten this surgery at the time of trial.

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Published on: March 20, 2016

Unavoidable Motor Vehicle Accidents in Texas

By Carabin Shaw

In Gomez v. Cooke, a Texas appellate court considered a case that arose when a couple was on a cross-country road trip, traveling through Houston. The husband was driving the pickup, which was towing a camper.

Before the accident, the wife was looking at her GPS and instructing her husband to take a right turn. The truck moved toward the left, and the wife looked over to see her husband’s head had dropped and he was totally unresponsive. She tried to move his foot off the gas, but it was too late, and the truck and camper crashed into six vehicles, including a car driven by the plaintiff.

When they arrived, the emergency medical services personnel noticed that the left side of the husband’s face was drooping, and that side of his body was weak. At the hospital, the doctors determined the husband had suffered a stroke, causing him to lose consciousness.

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Published on: January 28, 2016

Compelling Discovery from a Manufacturer in a Texas Product Liability Case

By Carabin Shaw

In re Michelin North America, Inc. is a recent product liability case. The case arose when a woman driving a 2013 Ford Explorer was hit by Robert Coleman’s Ford F250 pickup. The pickup crossed the center line when its left front tire failed, and it crashed into the Explorer, killing the woman. The driver of the pickup and his passengers were seriously injured.

The woman’s heir filed a wrongful death lawsuit, alleging negligence and strict product liability against Michelin and a negligence claim against the driver of the pickup. The pickup driver filed a petition to intervene in the wrongful death lawsuit against Michelin.

The tire at issue was manufactured at a Michelin plant in 2011. The pickup driver claimed the tread peeled off the left front tire, and it lost air quickly because of tread separation, resulting in the pickup driver losing control. Before filing suit, the pickup driver’s attorney asked that specified evidence be preserved. The pickup driver’s attorney made several discovery requests to Michelin, which objected and claimed trade secret privilege, among other things. The court granted the pickup driver’s motion to compel access. The order allowed videotaping, limited to an hour.

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Published on: January 28, 2016

Negligent Entrustment in Texas Car Crashes

By Carabin Shaw

In Dao v. Garcia Ex. Rel. Salinas, a man borrowed the defendant’s car to pick up his friend at a restaurant. The defendant and the man were former roommates, friends, and business associates. On the day that the man borrowed the defendant’s car, she’d had dinner with the man and fallen asleep at his apartment. While she was sleeping, he took her keys and drove her car to get his friend at the restaurant. While at the restaurant, he drank part of a glass of wine, one of several he’d consumed that day.

As the man and the friend left the restaurant in the car, they started to go the wrong way on a one-way street. The man then tried to drive across the street to go into a driveway. At that point, Rojelio Salinas came down the street in his moped, and the defendant crashed into him. Salinas died from his injuries. His estate sued the man, the defendant, the restaurant, and another party for negligence.

Included in the causes of action was a claim against the defendant for negligent entrustment. The jury found that the defendant, the man, and the restaurant were negligent, awarding $737,000 in damages. The jury apportioned damages with 10% to the defendant, 5% to the restaurant, and 85% to the man. The court ordered that the defendant and the man were jointly and severally liable for $700,150. The defendant filed a motion for new trial, which was denied on the grounds that it was against the operation of law.

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