Car Accidents

Published on: October 25, 2015

When is a Medical Exam Warranted in A Texas Car Accident Case?

In In re Ruben Gonzalez, a cross-complainant filed a petition for a writ of mandamus to overturn the trial court’s order that required him to undergo a medical examination in a personal injury suit. The case arose in 2013 when the cross-complainant was involved in a multi-vehicle crash. A truck driver turned in front of his car, and the cross-complainant veered and crashed into a third vehicle driven by the plaintiff. The plaintiff sued the cross-complainant, the truck driver, the truck driver’s employer, and another. The cross-complainant then cross-claimed against the truck driver and his employer, seeking damages for his own injuries.

One of the cross-complainant’s treating physicians recommended that he have a surgery to remove four cervical discs and fuse his vertebrae. The truck driver and his employer deposed the doctor. The truck driver and employer also requested a medical exam of the cross-complainant, but the trial court denied this.

The cross-complainant got a second opinion about the way he should be treated. The second opinion physician had not yet been disclosed as a potential witness. The second opinion doctor recommended that the cross-complainant undergo a single-disc replacement surgery. His lawyer did disclose to the opposing attorneys that his client would have surgery, but he didn’t identify the second opinion doctor as the one who would perform it.

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Published on: September 21, 2015

Texas City Sued Due to Police Officer Use of Patrol Car

By Carabin Shaw

In City of Socorro v. Hernandez, a Texas appellate court considered a case in which the plaintiffs were involved in a car crash. Their car was rendered inoperable, and the electrical system died in the street. The hazard lights weren’t working. The police responded. The officer didn’t park his car behind the stalled car but instead parked on a side street, activating his overhead flashing lights. The officer ordered the two to push the stalled vehicle out of the road. A woman driving towards the accident was distracted by the police car’s lights and crashed into the police officer and the plaintiffs.

The plaintiffs sued on the grounds that their injuries and damages were proximately caused by the city’s negligence in failing to use warning lights in a way that would have warned other motorists about the dangerous condition in the road, placing the car in a side street and thereby distracting motorists from the dangerous condition, failing to take reasonable steps to make the road safe, and directing the plaintiff to push the car out of the road in spite of its inoperable condition.

The City filed a plea to the jurisdiction, which was denied by the trial court. The City appealed the denial. The court reviewed whether the allegations established that the city’s use of the police car proximately caused the injuries, whether the injuries were proximately caused by the use of the disabled car, and whether the dangerous condition created by the disabled car was a special defect.

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Published on: September 21, 2015

Sufficient Evidence for Damages in Texas Car Accident Case

By Carabin Shaw

In Dabbs v. Calderon, a Texas Court of Appeals considered a case in which the defendant ran a red light and crashed into two cars. One of the passengers in one of the struck cars was pinned inside the car. When he was freed by emergency personnel, they found his leg was badly hurt. Doctors diagnosed him with a fracture in his shin bone and gave him a pain medication prescription, stabilized his leg, and discharged him. At home, his family had to cook for him and give him baths.

Three weeks later, his leg was covered in fracture blisters, and he had to stay at the hospital for five days. Six months later, he had to have a surgery, and he went to physical therapy three days a week for several months until April 2012. Later he testified that his right leg atrophied from non-use, and when he did try to use it, his foot would swell and turn blue.

The accident victim sued the woman who crashed into the two cars, claiming she negligently ran a red light because she was distracted. The woman claimed she couldn’t stop because her brakes failed.

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Published on: August 9, 2015

Elections of Remedies when Suing a Governmental Employee in Texas

By Carabin Shaw

If you are suing a governmental employee for personal injuries but are not sure if he or she was acting in an official capacity at the time of injury, you should be aware of election of remedies under the Texas Tort Claims Act (TTCA). In Molina v. Alvarado, a Texas plaintiff sued a city for negligence and negligence per se, on the grounds that its employee Alvarado was driving a city vehicle under the influence of alcohol when he hit the plaintiff. The plaintiff originally alleged that the employee was operating the city’s vehicle in the course and scope of employment with the city, and the city had negligently operated the vehicle through its employee. The original petition didn’t describe the employee’s job duties or state that he was performing a task assigned to him by the city.

The city claimed immunity from the suit, arguing that no statute waived its immunity. The trial court denied the plaintiff’s special exceptions that requested the city specify the facts and law underpinning its immunity defense. The plaintiff filed an amended petition naming the employee as another defendant.

The amended petition alleged the employee operated the city vehicle in the course and scope of employment with the city. It reasserted that the city operated the vehicle in a negligent manner. The plaintiff also claimed that, if the employee wasn’t furthering the city’s governmental affairs while in the vehicle, he was liable in his individual capacity for negligent operation of the vehicle.

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Published on: August 9, 2015

Motorcyclist Unable to Recover from City in Texas

By Carabin Shaw

In Northcutt v. City of Hearne, the appellate court considered governmental immunity in the context of a motorcycle accident resulting in the death of a motorcyclist. The motorcyclist was traveling northbound on Highway 79. A police officer had hidden on a driveway with his lights off to set up a speed trap. As the motorcyclist approached, the officer pulled his car out of the driveway to pursue a different vehicle. The motorcyclist was forced to swerve to avoid contact.

The motorcycle flipped, and he was thrown onto the highway. The defendant failed to swerve and hit him, resulting in the motorcyclist’s death. The decedent’s personal representative sued the City for negligence, seeking wrongful death and survival damages. She alleged that the city had waived its governmental immunity under the Tort Claims Act.

The City denied the allegations and put up a defense based on governmental immunity. It also filed a plea to the jurisdiction, claiming there were insufficient facts to support the claim it had waived its immunity. The trial court granted the plea. The plaintiff appealed.

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Published on: March 16, 2015

Texas Supreme Court Reconsiders Ban on Seat-Belt Evidence

By Carabin Shaw

Over the past 40 years, evidence of a plaintiff’s failure to use a seat belt was inadmissible in Texas car accident lawsuits because, even though it could exacerbate the plaintiff’s injuries, it could not, in and of itself, cause a car accident. This rule was a way of protecting plaintiffs from the all-or-nothing effect of the contributory negligence doctrine. Under the contributory negligence doctrine, a plaintiff who was 1% or more at fault for an accident could not recover any compensation from the defendant. The rule originated with case law and was codified, and then the statute was repealed in 2003. In spite of the legislative repeal of the rule, the rule making seat-belt evidence inadmissible still stood, since the case law was still in effect.

In the recent, important ruling in Nabors Well Services, Ltd. v. Romero, the Texas Supreme Court reconsidered the rule banning seat-belt evidence. The case arose when a transport truck collided with a Chevrolet Suburban carrying eight passengers, including three adults and five children who were part of two families. When the transport truck slowed, the driver of the Suburban pulled into the opposite traffic lane and tried to pass. While the Suburban passed, the truck made a left turn and hit the Suburban, which rolled several times and killed an adult passenger and hurt the rest of the people in the car. There was conflicting evidence about who was belted into their seats. All of the occupants were ejected except the driver and one of the children.

The two families sued the transport truck company and its driver. At trial, the truck company tried to introduce expert testimony from a biomechanical engineer that seven out of the eight Suburban occupants were unbelted and that this failure caused their injuries and the fatality. The truck company also wanted to introduce a citation issued to the driver for failing to properly restrain child passengers.

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Published on: January 26, 2015

Can Your Chiropractor Testify in Your Texas Personal Injury Case?

By Carabin Shaw

Recently, in Moreno v. Ingram a Texas appellate court considered the question of whether a chiropractor can testify on the necessity of a plaintiff’s non-chiropractic medical treatment. The plaintiff sued the defendant for negligence, based on injuries and vehicle damage arising out of an auto accident. Before trial, she filed affidavits about her need for medical care. The court ruled these established the cost of the treatment was reasonable, but not that the treatment was necessary. The affidavits were admitted, but the references to necessity were redacted.

At trial, the plaintiff offered her chiropractor’s testimony. The chiropractor (Dr. Starry) testified about the necessity of her treatment by a pain management physician. This included epidural steroid injections and other non-chiropractic treatment. Digital animations were shown as demonstrative exhibits.

The plaintiff and defendant both testified about the crash, but their testimony contradicted each other. The plaintiff testified she had signaled to turn left from a parking lot. She also testified that the defendant was behind her but drove around on the left, swiped, and hit her. The defendant argued she was driving on the boulevard and wasn’t in the parking lot, and that the plaintiff pulled out of the driveway and caused the crash. Continue reading →

Published on: January 14, 2014

Teen Who Killed Four in a Drunk Driving Accident May Face Jail Time After All

By Carabin Shaw

Many in Texas and across the United States were horrified to learn the outcome of a drunk driving case in which four people were killed. Ethan Couch, 16 years old, pleaded guilty to intoxication manslaughter and intoxication assault in Tarrant County court. In return Judge Jean Boyd sentenced Couch to 10 years probation. Prosecutors criticized the judge for so easily accepting the “affluenza” defense, and for giving a lighter sentence than many would receive for such a crime. However, Couch may end up yet serving time if the district attorney has his way.

The tragic case began back in June 2013, when Couch and several of his friends robbed a Wal-Mart store before they got into Couch’s Ford pickup truck and drove at 89 miles per hour down the Burleson-Retta road in southern Tarrant County. Couch, the driver, had a blood alcohol level of more than three times the legal drinking limit when he plowed into four people stopped by the side of the road. They included a mother and daughter who had gone to help a stranded friend, the friend, and a youth pastor who had stopped to help. Couch’s collision also left one of his friends critically injured.

In court, Couch’s attorneys argued that Couch suffered from “affluenza”: he had grown up rich and had received everything he wanted, making him incapable of knowing right from wrong. Couch elected to have Judge Boyd sentence him rather than face a jury. He stood to receive up to 20 years in prison, but instead, Judge Boyd ordered that he be released to his parents and be placed at Newport Academy treatment facility, which cost $450,000 per year, which his parents would be required to pay. Couch would remain for at least three months. He has already been twice cited for driving at 89 miles per hour while under the influence, and pleaded no contest. Two of his requirements were to take an alcohol awareness class and do 12 hours of community service.

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Published on: November 27, 2013

California Jury Awards $150 Million to 13-Year-Old Girl in Wrongful Death Trucking Accident Case – Asam v. Ortiz and Bhandal Bros. Trucking

By Carabin Shaw

In early November 2013, a Los Angeles Superior Court jury awarded over $150 million in damages to a 13-year-old year girl who witnessed three members of her family burn to death following a car accident on a Southern California freeway. This verdict could be one of the largest of its kind.
In this case, back in November 2009, the Asam family was traveling from California to Oregon for the Thanksgiving holiday when their SUV rear-ended a semi-trailer truck parked on the shoulder of a California freeway. The plaintiff (then 9-years-old) and her 11-year old brother managed to escape from their family’s SUV after it struck and got caught under a semi-trailer truck parked on the shoulder of the freeway. However, they witnesses the deaths of their parents and brother, who were burned alive when their family’s trapped SUV caught fire.
The lawsuit alleged that the driver of the truck, Rudolph Ortiz, pulled his truck over to the side of the road to sleep. In doing, he failed to use the emergency signals and ignored written warnings that stopping on the shoulder was allowed only in emergencies. Attorneys for the defendants argued that Ortiz stopped to take medication for a severe headache, which constituted an emergency. Defendants also alleged that the law was not broken as the semi-trailer truck was parked on the dirt road to the right of the shoulder. Finally, defendants alleged that plaintiff’s father was also negligent for attempting to stop the family’s SUV on the shoulder after the SUV allegedly struck debris on the freeway.

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Published on: November 11, 2013

New Traffic Laws in Effect in Texas

By Carabin Shaw

As of September 1, 2013, several new traffic and driving laws went into effect in Texas. It is important for all Texans to become acquainted with the new laws, as individuals who break these laws may face fines, or even prison time. Fortunately, although the laws became effective September 1, 2013, Texas Department of Public Safety troopers are offering a grace period for most of the laws until January 1, 2014 to make sure everyone is aware of the new and amended laws.

The Texas Department of Transportation believes the new laws will provide added protection for people on Texas roadways. According to the Texas Department of Transportation, the fatality rate on Texas roadways in 2012 was 1.41 deaths per hundred million vehicle miles traveled -a 9.3% increase from 2011. In addition, the State of Texas also recently experienced an increase in the number of motor vehicle traffic fatalities. Specifically, the 2012 death toll of 3,399 was an increase of 10.82% from the 3,067 deaths in 2011.

Some new laws for which Texans should be aware include the following:

• Cell Phones in School Zones (HB 347): While Texas already prohibits cell phone use behind the wheel in school zones unless the vehicle is stopped or a hands-free device is being used, the new law expands the limitation to include all school property, including parking lots and drop off lanes. Violators of the law will be assessed fines up to $200. Notably, cell phone use is only restricted during the time a reduced speed limit is in effect, generally, directly before and directly after the school day.

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