Wrongful Death

Published on: April 18, 2014

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

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.

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Published on: February 6, 2014

Tarrant County Judge Denies Jail Time to Teen Who Killed Four While Driving Drunk

By Carabin Shaw

Last month, this blog discussed the case of Ethan Couch, a 16-year old who drove while intoxicated and killed four people in Tarrant County. Couch’s defense attorneys argued that Couch suffered from “affluenza,” or the inability to know right from wrong due to growing up in a wealthy home where he was given everything he wanted. The Tarrant County judge, Jean Boyd, sentenced Couch to probation rather than jail time, which drew outrage from the victims’ families and the general public. District Attorney Joe Shannon had hoped to persuade the judge to reconsider and give jail time for two intoxicated assault charges.

Instead, Judge Boyd confirmed recently that no jail time would be included in Couch’s sentence. Couch will instead be on probation for 10 years, part of which will be spent in a locked rehabilitation facility that could cost Couch’s parents up to $450,000 a year. During probation, Couch cannot drink alcohol, use drugs, or drive. If he violates the terms of probation, he could be sentenced to 10 years in prison. The hearing was closed to journalists and the general public, so there is no knowing whether Judge Boyd elaborated on her reasons for choosing this sentence.

The tragic accident took place in June 2013, after Couch and his friends had allegedly robbed a Wal-Mart store. The teenagers then piled into Couch’s Ford F-350 pickup truck, with some riding in the truck bed. Couch proceeded to drive at 89 miles an hour down the Burelson-Retta road in southern Tarrant County, with a blood alcohol level of more than three times the legal limit of .08. Couch then struck four people on the side of the road — a mother and daughter who had come to pick up a stranded friend, and a pastor who offered to help. All were killed, and two of Couch’s friends flew out of the truck bed and suffered severe injuries. One is unable to speak or move, while the other suffered broken bones and internal injuries.

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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: December 27, 2013

South Texas Jury Awards $281 million to family of man killed in Eagle Ford Shale Truck Accident

By Carabin Shaw

On December 7, 2013, a jury in South Texas found that Heckmann Water Resources Inc., an oil patch supplier near San Antonio, Texas, negligently failed to maintain a tractor-trailer truck that caused the death of Carlos Aguilar. The lawsuit stems from a May 2012 accident in which Aguilar, a U.S. Army veteran, husband, and father of seven, was doing work at the Eagle Ford Shale oilfield when a drive shaft broke off from under a Heckmann tractor-trailer traveling at 67 mph. The 20-pound part crashed through the windshield of the pickup truck that Aguilar was riding in, killing him.

Aguilar’s family filed suit against Heckmann and one if its employees, alleging that Heckmann failed to properly maintain the tractor-trailer. The jury ultimately found the company negligent and awarded Aguilar’s family (his parents, wife, and seven children) $281 million, which included $181 in compensatory damages and $100 million in punitive damages against Heckmann. The jury did not find Heckmann’s employee negligent. Heckmann’s Scottsdale, Arizona-based parent company, Nuverra Environmental Solutions, plans to appeal the decision. The verdict is one of the largest verdicts in Texas history.

Texas is by far the largest producer of crude oil and natural gas in the United States. In addition, the Eagle Shale Ford area continues to grow. There are currently 265 oil rigs operating in Eagle Ford Shale, compared to only 158 operating rigs in 2010. This means more oilfield workers and likely more accidents both at the oilfield rig and in and around the area involving trucks transporting supplies. In fact, according to the Texas Department of Transportation, the largest recent jumps in fatal traffic accidents are those involving commercial vehicles.

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Published on: December 13, 2013

Comparative Negligence in Drunk Driving Accidents in Texas

By Carabin Shaw

On December 16, 2011, Sarah Patton filed suit against the Texas Department of Transportation in Jefferson County District Court on behalf of the estate of Pamela Freeman, who was killed in a car accident (Case No. B191-484). The complaint alleged that the Texas Department of Transportation acted negligently by allowing water to accumulate on the roadway because of inadequate drainage. According to the lawsuit, on February 12, 2011, Freeman was exiting Interstate 10 when her vehicle hydroplaned, causing her to leave the roadway and strike a sign and light pole. The accident eventually led to her death several months later.
Patton later amended her complaint, naming both Toyota and APAC-Texas as defendants, and alleging that a design flaw and water left on the road from construction work carried out caused the crash. On October 3, 2013, APAC-Texas filed a motion for summary judgment, arguing that Freeman’s BAC exceeded the legal limit at the time of accident. The motion also contended that investigating officers at the scene of the accident confirmed that there was no water left on the road from construction and, instead, the accident had resulted from Freeman’s speeding. Based on these facts, APAC argued that it should be dismissed from the case since there was no evidence to support Patton’s claim that APAC was negligent when performing construction work on the road in question. Then, on November 2, 2013, Toyota followed APAC’s lead and asserted that Patton’s amended complaint failed to allege or identify the specific product defect theories or any defective components on Freeman’s vehicle. Ultimately, on November 6, 2013, Patton filed a notice stating that she non-suited all her claims against all defendants, meaning that she released all of the defendants from liability.

As mentioned previously on this blog, unfortunately, in 2012 Texas had the largest increased in fatalities of any state in the country, with an 11% increase in overall traffic fatalities and a 6.6% increase in drunk driving deaths. More specifically, according to the Texas Department of Transportation, there were 1,099 people killed in motor vehicle traffic crashes where a driver was under the influence of alcohol, which accounts for 32.3% of the total number of people killed in motor vehicle crashes. At the same time, there were only five fatalities where defective vehicle products were a contributing factor, and no reported fatalities due to standing water on the road.

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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: September 22, 2013

Pedestrian Fatality Rates for the State of Texas and Various Texas Cities Grim

By Carabin Shaw

On average, a pedestrian is killed every two hours and injured every eight minutes in traffic crashes. In fact, in 2011, pedestrian deaths accounted for 14% of all traffic fatalities and made up 3% of all people injured in traffic crashes in the United States. According to data from the National Highway Safety Administration (NHTSA), there were 4,432 pedestrian fatalities reported in 2011 due to traffic accidents, an 8% increase since 2009. An estimated 69,000 pedestrians were also injured in traffic crashes. Additionally, the 2011 report by the NHTSA also revealed the following:

• 3 out of every 4 pedestrian deaths occurred in urban areas
• 70% of those killed were at non-intersections
• 70% of pedestrian deaths occurred at night
• Alcohol involvement–either for the driver or the pedestrian–was reported in 48% of all fatal pedestrian crashes
In an effort to combat the rising number of deaths over the last two years and educate communities on safety measures, the U.S. Transportation Secretary Anthony Foxx announced a new campaign, “Everyone is a Pedestrian,” in August 2013. Besides providing grants to the cities with the highest rate of pedestrian deaths, the NHTSA, together with the Federal Highway Administration (FHWA), launched a website with safety tips and resources for local leaders, officials, parents and other involved in improving pedestrian safety.

Notably, according to the NHTSA, the State of Texas is one of 22 cities in the U.S. where pedestrian deaths are greater than the national average, making Texas eligible to apply for a total of $2 million to be used for education and enforcement initiatives under the campaign. Indeed, Texas pedestrian fatalities account for 14% of the total traffic fatalities in Texas. Unfortunately, at the same time, the Texas cities of San Antonio, Austin, Fort Worth, Houston, and Dallas were also selected by the FHWA in 2011 as focus cities. Focus cities are selected based on the number of pedestrian fatalities or the pedestrian fatality rate per population. More specifically, cities are selected as pedestrian focus cities if they have more than 20 average annual pedestrian fatalities or a pedestrian fatality rate greater than 2.33 per 100,000.

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Published on: September 22, 2013

Stadium Safety Issues Emerge Again after Another Season of Football Begins

By Carabin Shaw

On September 8, 2012, opening weekend of football for the NFL, a spectator fell to his death at San Francisco 49ers stadium while attending the game. The spectator fell to his death from a pedestrian walkway outside of the stadium. Multiple witnesses told police that the victim appeared to be intoxicated at the time of his fall. That very same weekend, two fans were injured when a railing collapsed inside Lucas Oil Stadium, home of the Indianapolis Colts, during a Colts game against the Oakland Raiders. Luckily, neither of these fans were seriously injuries. Unfortunately, however, these incidents are just the latest in a series of deaths and injuries at sports stadiums across the United States over the past several years.

Recent Accidents

According to the Institute for the Study of Sports Incidents, based at the University of Southern Mississippi, since 2003 there have been more than two-dozen cases of fans falling at stadiums across the country. On August 13, 2013, an Atlanta Braves fan was killed at Turner Field in Atlanta after falling 85 feet from a fourth-level railing of the stadium onto a parking lot below. In addition, during a pre-season NFL football game this year, a Denver Broncos fan was injured when he fell 10 feet from an escalator. Finally, at Rangers Ballpark in Arlington, Texas in 2011, a spectator fell to this death from the left-field seats after trying to catch a ball tossed towards him.

Premises Liability

In addition to complying with local and states laws, all stadiums must also comply with the strict safety guidelines instituted by the International Building Code, which has been adopted by all 50 states and the District of Colombia. Among the guidelines are various railing requirements, including calls for railings in front of seats to be at least 26 inches high, and a requirement that protective railings placed in open-sided areas such as concourses be at least 42 inches in height.

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Published on: September 13, 2013

Recent Recalls Affecting Infants and Young Children in Texas and Elsewhere

By Carabin Shaw

Every year thousands of infants sustain injuries or are wrongfully killed by dangerous and defective products. In addition, deaths, injuries and property damage from consumer product incidents in general cost the nation more than $900 billion annually. Unfortunately, many of these injuries are caused by the negligence or recklessness of manufacturers and distributors, meaning that many of these injuries and deaths could be avoided.

Infants are particularly vulnerable to dangerous and defective products, including but not limited to toys, clothing, and even drugs. According to a 2011 report produced by the U.S. Consumer Product Safety Commission (CPSIA), among children younger than 5 years of age, there were an estimated 74,100 emergency department-treated injuries, associated with, though not necessarily caused by, nursery products in 2011. In addition, for the 3-year period from 2007 through 2009, the Consumer Product Safety Commission (CPSC) received reports of 341 deaths, associated with, but not necessarily caused by, nursery products among children younger than age 5. Several recalls relating to products used by infants have been reported in the past few months, including but not limited to the following:

HALO SleepSacks Recalled

On August 21, 2013, the CPSC issued a recall of approximately 27,000 HALO SleepSacks Wearable Blankets sold exclusively at Babies R Us and babiesrus.com from December 2011 through July 2013. Citing a risk of a choking hazard to infants, the CPSC advised consumers to stop using the product immediately. The recall was issued after the CPSC received six separate reports of a pink satin flower on the blankets becoming detached from the blankets. In one case, the report complained that an infant was discovered gagging on the detached petal.

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Published on: September 12, 2013

After Influx of Recent Cases of Brain-Eating Amoeba Reported, CDC Expands Access to Experimental New Drug

By Carabin Shaw

On September 7, 2013, a child (believed to be a 4-year old boy from Mississippi) died after contracting a rare, but deadly, brain-eating infection while visiting Louisiana. The boy may have come into contact with the waterborne brain-eating amoeba, known doctors as scientist as Naegleria fowleri, while playing on a plastic toy water slide at a home in St. Bernard’s Parish, Louisiana. According to the Louisiana Department of Health and Hospitals, water samples taken from the home the child was visiting tested positive for amoeba.

Unfortunately, this was not the only story of a child becoming infected with the brain-eating amoeba reported recently. On August 3, 2013, a 12-year old South Florida boy was knee-boarding in ditch water in Glades County, Florida when he contracted primary amebic meningoencephalitis (PAM), the infection caused by the Naegleria fowleri amoeba, through his nose. Although antibiotics successfully fought off the infection, the boy suffered extensive brain damage, which left him on life support. The boy passed away on August 27, 2013. Finally, in July 2013, a 12-year old became ill after contracting the brain-eating parasite at a waterpark in Arkansas. However, she is one of the few individuals who managed to survive the infection after being treating with the experimental drug miltefosine, and was released from the hospital on September 11, 2013.

Despite the recent occurrences of infections, officials from the Center for Disease Control and Prevention (CDC) report that only 128 people have been infected with PAM from 1962 to 2012. Of these 128 people, only two people in North America survived. In the future, this survival rate may increase as the CDC recently expanded doctors’ access to the experimental new drug, miltefosine, to treat deadly viruses, including PAM. Although used to treat another parasitic infection called leishmaniasis, and sometimes breast cancer, the drug was previously only used in emergency situations with permission from the FDA to treat PAM.

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