Wrongful Death

Published on: December 16, 2014

Damages in Texas Wrongful Death Case

In Texas, the surviving spouse, children, or parents of a deceased person can file a wrongful death lawsuit against a person or entity whose wrongful act or negligence caused the death. One of them can file the claim as an individual, or they can file together as a group. If none of them files the claim within three months of the death, a representative or executor of the deceased’s estate can file the claim unless the family member asks that it not be filed. Texas doesn’t permit surviving siblings to file a wrongful death lawsuit for a sibling’s loss. Unlike criminal charges brought in connection with the same death, liability in a wrongful death suit is expressed solely in monetary damages.

The family members or estate can recover damages, including lost earning capacity, lost inheritance, lost love and companionship, lost earning capacity, lost services and counsel that would have been given by the deceased person, mental anguish, and pain and suffering. Punitive or exemplary damages may also be recovered in order to punish a wrongdoer. The damages will be divided among the surviving family members in proportion to their degree of injury as a result of the death. For example, a surviving spouse who was close to the decedent would likely be entitled to a greater share than a child who was estranged from the decedent for years before the death.

In a recent Texas appellate case, Badall v. Durgapersad, a man shot his victim in a tire shop he owned. The victim died in the hospital the next day, and the man was charged with murder and convicted. He appealed, but the appellate court affirmed his conviction. The victim’s family sued the man for wrongful death, claiming various damages including medical bills, funeral expenses, lost earning capacity, pain and suffering, mental anguish, loss of consortium, lost earning capacity, punitive damages, and lost inheritance and interest. They moved for summary judgment. Continue reading →

Published on: December 11, 2014

Requirement of Expert Report in Texas Medical Negligence Cases

By Carabin Shaw

In Methodist Health Centers v. Crawford, a Texas woman’s son and daughter sued a health center for medical malpractice in connection with its care of their mother. The mother was admitted to a nursing facility with a history of diabetes and dementia. She had a pressure ulcer on her back and needed a feeding tube. A month later, she was transferred to the defendant’s hospital for treatment of her urinary tract infection and vomiting. She also had another pressure sore on her hip. A few days later, the pressure ulcers had gotten worse. She was discharged back to the nursing facility. A few months later she again had vomiting, a fever, and shortness of breath and was transferred back to the hospital.

Her condition deteriorated in spite of antibiotics and other treatment. She died of pneumonia, infection, and respiratory failure a few days later. Her son and daughter sued the medical and nursing facilities, both individually and as the woman’s heirs. They attached a doctor’s expert report and CV to the petition, as required by Texas law. They settled with the nursing facility, but the hospital moved to dismiss for failure to serve an adequate expert report. The trial court denied the motion to dismiss.

Under Texas law, a plaintiff must serve a defendant with an expert report, along with a CV of the experts listed in the report. An expert is only qualified to offer an opinion on whether the health care provider deviated from the standard of care if the person practices health care in the same field as the defendant, knows the accepted standard of care for the provider, and is qualified due to training or experience to offer an expert opinion about the standard of care. If a doctor doesn’t state in the expert report that he or she has knowledge of the standard of care, the court will find he or she is not qualified to offer an opinion. Continue reading →

Published on: December 11, 2014

Assumption of the Risk in Texas

By Carabin Shaw

In Texas, the defense of assumption of the risk is part of the general defense of comparative negligence. Those who participate in dangerous activities for sport or fun should be aware of this potential defense should something go wrong. Assumption of the risk arises when a plaintiff knowingly and voluntarily assumes a risk of harm from a defendant’s actions. The defendant will need to show the plaintiff had actual knowledge of the risk, the plaintiff accepted the risk, and the nature of the conduct was inherently dangerous. This doctrine can arise in connection with activities such as scuba diving, rodeos, and high-contact sports.

In DeWolf v. Kohler, a woman brought a Texas wrongful death lawsuit against multiple defendants associated with a scuba diving accident. The decedent was scuba diving with a group at a shipwreck off the coast of Massachusetts. On the second day of the trip, the man was seen going into the water but never resurfaced. Only after hours of searching was the man’s body found on the ocean floor. The local medical examiner determined the cause of death was drowning, pending further study. After an autopsy, however, the cause of death was listed as myocarditis, a natural cause.

The man’s wife sued numerous defendants for wrongful death, including the dive boat, the individual who chartered it for the expedition, the network that had carried a television show with the individual who chartered the expedition. the company that trained the decedent to dive and gave him credentials, and the scuba equipment manufacturer. The boat didn’t answer the suit and was dismissed by the court. The network contested jurisdiction, and the court agreed. The dive training company filed a motion for summary judgment that was granted. The equipment manufacturer filed a motion for summary judgment that was initially denied but later reconsidered. The case proceeded to trial against the individual who had appeared on television and organized the expedition. Continue reading →

Published on: December 11, 2014

Wrongful Death on the Job in Texas

By Carabin Shaw

Most of the time, the only recourse for survivors of a family member who dies because of a job are workers’ compensation benefits. However, when an employer shows gross negligence and an employee dies, the rules are different. In Garay v. GR Birdwell, the decedent’s surviving spouse and a representative of the decedent’s minor child sued the decedent’s employer for wrongful death after the decedent died while operating a trench roller. The accident happened while the decedent was working on his employer’s behalf at a construction site.

The employer was completing construction of a concrete wall, and the decedent operated a trench compactor on the employer’s behalf. He had worked for the employer for five years without any accidents. Usually, workers used a remote control with the trench roller, but according to another employee, the decedent said the remote control wasn’t working, even though he was able to use it earlier in the day. Therefore, the decedent manually operated the roller. Another employee had manually operated it the same way many times before.

While operating the roller, the decedent stood at a pinch point between the roller and the wall. The roller pinned him there. His coworkers tried to get him out, but he already had suffered serious injuries and died there. Continue reading →

Published on: October 2, 2014

Tractor-Trailer Crashes Into Texas College Bus

By Carabin Shaw

Recently, four people died and over a dozen were hurt in a Texas college bus crash. The accident happened when a tractor-trailer crossed a median in Oklahoma and crashed into the bus, which was transporting a women’s college softball team.

The team was going home after a scrimmage in Oklahoma. Three of the women died at the scene, and a fourth died at a hospital. The sides of the bus were heavily damaged. The National Transportation Safety Board sent investigators to the site, and both the bus driver and the tractor-trailer driver had to take toxicology tests.

A major accident like this can be devastating both physically and financially. When multiple people are harmed, it can be difficult to sort out who should pay and how much should be paid. In general, the party at fault must pay. If the tractor-trailer driver in the situation described above was 100% at fault, its insurer will have to sort out multiple claims against the same policy. It may be possible to reach a global settlement. However, a knowledgeable personal injury attorney will also look into other sources of recovery because a single insurance policy does not always cover all of the injuries, physical and emotional, that arise out of an accident involving multiple fatalities.

Continue reading →

Published on: September 16, 2014

Texas Ranch Operator Liability for Trespassers’ Fatal Truck Crash

By Carabin Shaw

A family from Mexico — a mother, father, and child — hired a “coyote” to transport them into the United States, to either New Orleans or Houston.

He picked them up in a truck at a safe house in Texas, along with another passenger. They drove to the private Jones Ranch, arriving before dawn. The coyote ordered his passengers to move from the back seat to the floor of the truck. Somehow he had keys to the locked gate of the ranch and drove onto the property.

A ranch employee spotted and stopped the strange truck, even in the early morning darkness, and asked the driver what he was doing on the ranch. The employee observed only the driver and a front seat passenger and also wrote down the license plate number of the truck.

Continue reading →

Published on: August 18, 2014

Death of a Minor in Go-Kart Accident in Texas

By Carabin Shaw

Recently, a 14-year-old girl passed away after a go-kart accident outside the Texas Motor Speedway, where she was participating in a go-kart race. The race was sponsored by the Sports Car Club of America. The girl’s go-kart kept going after she crossed the finish line and crashed through a low fence. Her helmet fell off when she crashed. Although she was airlifted to a hospital, she was pronounced dead afterward. It is not known whether the girl lost control because she suffered some sort of medical condition, or if the go-kart experienced a mechanical failure.

If the cause of an accident causing injury or death to a minor is mechanical failure, it may be appropriate to bring a wrongful death lawsuit. In Texas, a plaintiff bringing a product liability suit must prove the product was defective, the product reached the plaintiff without a substantial change in its condition, the defect made the product unreasonably dangerous, and the defect caused the plaintiff’s injuries and resulting damages.

When a product liability suit is brought, your attorney will need to retain experts to prove whether there was a design, manufacturing, or marketing defect and to testify about whether there was a safer alternative design. When there is a manufacturing defect claim, the plaintiff’s expert must be able to testify that the product deviated from its planned specifications. When there is a marketing defect, the plaintiff will have to show that the product lacked an adequate warning.

Continue reading →

Published on: July 14, 2014

Texas Mother and Two Children Killed in a Wrong Way DWI Crash

By Carabin Shaw

A mother and her two children were killed recently by a driver driving the wrong way in Kilgore, Texas. The driver may have been intoxicated at the time, and had previously been convicted of anther DWI.

The crash occurred early in the morning, on Loop 259 near Dudley Road. Police officers responding to a 911 call found the children, a five year old and a 12 year old, dead and their 43-year-old mother unconscious. Their father, who had been driving, was conscious, but dazed. The mother later died after being taken to a local hospital.

The Department of Public Safety determined that the series of events that led to the crash began when an oil field truck driven by 22-year-old Shelby Taylor was traveling southbound in the northbound lane near Gregg and Rusk County when it crashed into the victims’ van. The father attempted to swerve out of the way, but was unable to avoid the truck in time. It was unclear whether the mother and children were not wearing seat belts at the time, and had been sleeping in the back of the van.

Continue reading →

Published on: May 27, 2014

GM Issues Its Seventh Recall of Vehicles in a Week, Thirtieth This Year

By Carabin Shaw

General Motors has come under the spotlight due to its recall of 13.8 million vehicles in the United States, including those sold in Texas. This has included the most recent recall of 500 new pickup trucks and SUVs due to an airbag malfunction and 2.6 million vehicles due to a faulty ignition that has led to 13 deaths.

The most recent calamity to hit GM was the faulty ignition defect. The defect led to a situation where key rings holding more than one key could cause the ignition to switch to the accessory position or the off position. That could lead to the loss of power, including power steering and breaking, as well as preventing airbags from deploying in the event of a front-impact crash.

According to the National Highway Traffic Safety Administration, GM was aware of the defect prior to 2014, but chose to do something about it only this year. The agency criticized GM for waiting so long, noting that the families and friends of those killed as a result “deserve straight answers about what happened.” In response, GM claims that it has launched a new unit that will quickly uncover any safety defects and issue recall notices for the applicable vehicles. For delaying the recall of vehicles with ignition problems, GM will pay a fine to the National Highway Traffic Safety Administration of $35 million. That is unlikely to be the last time GM issues a payout, given that many families of those killed will probably file wrongful death lawsuits. Some believe that the lawsuits against GM could force the company to pay out as much as $10 billion.

Continue reading →

Published on: April 18, 2014

While West, Texas Commemorates Anniversary of Factory Explosion, State and Federal Lawmakers Fail to Act

By Carabin Shaw

Residents of West, Texas recently commemorated the one-year anniversary of a major fertilizer explosion that killed 15 people, injured 200, and destroyed homes, schools, and a nursing home. One concern of many is that despite this deadly lesson, not enough has been done to implement new safety rules that would prevent a similar catastrophe from occurring.

In April 2013, a fertilizer plant that had operated for more than 50 years on the north side of town exploded, killing first responders who arrived to contain a fire in the facility. No plant workers were killed, but that may have been merely good fortune, as the Occupational Safety and Health Administration (OSHA) had fined the plant previously for improper storage of anhydrous ammonia. However, OSHA’s fine was for just $30, when it could have been for as much as $1,000. It turned out that the damage from the plant explosion would amount to $100 million.

While investigators have determined that stored ammonium nitrate caused the explosion, they still do not know what caused the fire that ignited it.

Continue reading →