Wrongful Death Lawsuits are Often Filed as a Result of a Crash involving a Negligent Driver

Big rigs do an enormous amount of damage when they hit another vehicle. This accident killed four.

This case did not have to happen, but for a trucker who ran a red light because he was in a hurry. That decision cost four women their lives. They were on their way home from a birthday party, when they were broadsided in the middle of an intersection – despite the fact they had the right of way and the green light. Four families were left in shock. Relatives of one of the deceased women chose to file a wrongful death lawsuit against the trucker and his employer.

The statement of claim alleged that the trucker showed a wanton and willful disregard for the safety of others on the road. But more than that, the lawsuit outlines the trucking company had a history of leaky brakes on their rigs and a whole host of other mechanical issues that indicated poor and slipshod maintenance. In fact, the trucking company’s record for unsafe driving was cited as being far worse than 64.1 percent of all federally authorized trucking companies between 2009 and 2011, and its vehicle maintenance violations were worse than 71.4 percent.

The rig being driven that day was an accident looking for a place to happen. Whether or not the trucker did not stop because he wanted to get to where he was going sooner, or whether he elected not to stop because his brakes were not working, is a moot point. The decision to run the red light was negligent. The lawsuit seeks damages for pain and suffering, medical bills, loss of guidance, affection, support and companionship.

Will this case be successful? Chances are it will. The evidence is clear and compelling. The man ran a red light and was driving a poorly maintained truck with questionable brakes. He knew the rig was in poor shape, yet still drove it. His employer was also aware their semis were not properly maintained, and yet let them out on the road. It doesn’t much matter what the reasons were for why the trucker ran the red light. The fact is he did and that the resulting crash killed four innocent people.

Cases like this one are as near as one can get to being open and shut. The evidence speaks for itself and the Austin personal injury lawyer that handles this case knows precisely how to ensure the family gets justice. They have lost someone they loved and they don’t need to lose anything more, or be left in economic desperation by that loss. If you have been in a similar situation, do not hesitate to call a veteran Austin personal injury lawyer. That is their job, to help victims find some sense of closure and justice.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke PLLC. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

State Farm: The Do’s and Don’ts of A Minor Car Accident

Earlier today, I received a link to a State Farm website that contains State Farm’s “Do’s and Dont’s Of A Minor Car Accident.”

There is the standard advice that you’d expect:  Don’t drive away, stay at the scene, call the police, etc.

But there was also something unexpected:

Don’t assume there aren’t injuries.
Do assess yourself and your passengers. Even low-impact collisions can cause injuries, some not appearing until days after the accident.

They’re right, of course.  People can sustain serious injuries in wrecks that don’t appear to be too bad.  In fact, in the last year, I’ve resolved two cases that are perfect examples of this.  In one, a client thought he was okay until he started experiencing significant pain several days later.  It turned out he had a herniated disc that required surgery.  In another case, a client was rear-ended and initially thought he was okay.  Unfortunately, symptoms later developed and he had to have hip replacement surgery due to his injuries.  Both of these cases were significant injuries (with significant settlements) despite the car wrecks not appearing to be bad and the injuries not showing up for several days.

But what’s so surprising is to see State Farm admit it.  We battle State Farm and other insurance companies every day, and we constantly hear them argue that injuries can’t be severe if there isn’t significant damage to the vehicles and that injuries can’t be severe if there is a delay in symptoms or treatment.  It’s nice to see them finally acknowledge that these arguments just aren’t true.

 

 

Drowning Wrongful Death Occurred While Trained Medical Personnel Were Prevented from Assisting Boat Racer

This bizarre case ended in the needless death of a powerboat racer. The wrongful death suit alleges gross negligence.

This case happened during a world championship for powerboats, and resulted in the drowning death of a well known, long time racer, who was experienced when it came to this kind of sport. The man was at the helm of his race boat with the boat’s owner when it overturned during the final lap of the second race. The owner was able to climb through an escape hatch in the cockpit, but the race driver was trapped in his seat.

The driver was alive and not injured immediately after the accident, and tried desperately to free himself from his safety harness. He was able to breathe using an emergency air tank. Overhead, there was a crew of certified dive paramedics waiting to deploy. However, for some strange reason they were not given the okay signal to go ahead. Instead, the Association’s president designated two other untrained individuals as rescuers. He evidently wanted to save money and not use the trained rescue team.

The delay in appointing two other inexperienced people to perform a rescue resulted in the boat starting to ship and sink, shutting the hatch. The race driver ran out of air and drowned. The wrongful death lawsuit filed stated if the defendants had followed the specified rules, regulations and protocols for a situation like this, the driver would have still been alive. The suit further suggests that the president would not allow rescue personnel to perform pre-race safety checks to get to know the features on the race boats.

This is likely to be a complex case, fraught with he said/they said moments. In situations like this, that is virtually inevitable when so many people are involved and have so much at stake. Will this case win? It may. That will, in large part, depend on the kind of proof there is relating to the president choosing to use inexperienced people to attempt a rescue. This is where there may be a credibility issue that the court will have to weigh.

If you have lost someone you cared about and need information about filing a wrongful death lawsuit, do not hesitate to call an Austin personal injury lawyer. It is their job to assess the case and explain how a wrongful death lawsuit differs from criminal charges, and what to expect should a case go to court. For justice and equity, hire an Austin personal injury lawyer. It’s the best investment you could make.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke PLLC. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Basics of Auto Accident Law Continuing Legal Education Course

Today, Brooks and another local lawyer are speaking at a four-hour seminar on auto accident claims.  The course will be an introductory course for inexperienced lawyers and paralegals.  Some of the things we’ll be discussing are investigation of the claim, pleadings, causes of action, and various ethics issues.

I’m happy to do this seminar.  There is a stereo-type that auto accident claims are easy, but even a simple car wreck case has the potential to have complicated issues that could affect our client’s claims.  If we can help other injury lawyers better represent their clients, then we’re doing a service to the profession.

If you’re interested in any of the materials from the seminar, please feel free to call our office.

Auto Accidents: Austin Makes Another Top 10 List & Not In A Good Way

Austinites are proud of the many “Top 10” lists honoring our city.  Recently, Austin was named to another top 10 list, but this wasn’t a good one. 

Men’s Health Magazine used a complicated formula to try and determine the safest and most dangerous cities in the country for driving.  According to them:

We tabulated the rate of fatal crashes; the percentage of fatalities involving alcohol, speeding, or hit and run; and the rate of seatbelt use (National Highway Traffic Safety Administration). Then we factored in the average number of years between accidents (Allstate) and laws on cellphone use while driving (Insurance Institute for Highway Safety, and city governments).
Using their formulas, Austin ranked as #10 in the “most dangerous cities” list, earning a grade of F.
 

There are several lessons for us in this.  First, drive defensively.  Austin is dangerous.  Second, buy uninsured/underinsured motorist insurance.  You need to make sure that you are protecting you and your family from these dangers.

 
If you’ve been injured in an auto accident, we would be happy to try to help you.  You may contact us by calling (512)476-4944 or by submitting a case using the “submit a case” forms throughout the site. 

Texas Supreme Court Under Fire

Yesterday, I wrote about the decline in Texas civil jury trials.  One of the key reasons that our founding fathers considered the jury trial so important was that it was a check on runaway judges.  Even Thomas Jefferson explained the importance of having juries as a check over judges when he wrote:

[judges] are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile (a flip of a coin) than to that of a judge biased to one side; and that the opinion of twelve honest jurymen gives still a better hope of right than cross and pile does.

These are the types of problems that some see in the Texas Supreme Court, and it came to light recently in two different areas.  Unfortunately, one of them involved one of our cases where the Texas Supreme Court took away a jury verdict for our client.  On March 26, NPR did a story that looked at how the oil and gas industry is potentially underpaying royalty owners and how Texas Supreme Court decisions (inlcuding our case) make it more difficult for the royalty owners to prevail.    

And then the Texas Supreme Court created a firestorm with its decision involving public access to Texas beaches.  That decision has led to attacks on the Texas Supreme Court on all fronts.  For example, it has been called out by the liberal-leaning Burka blog to calls from Republican Land Commissioner Jerry Patterson to vote out the five members of the Supreme Court who supported the decision.

These allegations about the Texas Supreme Court are not new.  One of the more popular posts on my blog is a 2007 post detailing a study from law professors finding that in the 2004 and 2005 terms, the Texas Supreme Court ruled for defendants 87% of the time.  The study even used Wal-Mart as an example of the alleged problem.  From 1998-2005, there were 81 cases around the country (excluding Texas) at their states highest courts.  In those cases, Wal-Mart won 56% of the time.  During that same time period, Wal-Mart had 12 cases at the Texas Supreme Court and won them all. 

I’m not sure where this increased publicity will go, but I do think it’s positive for the people of Texas to be informed about the civil justice system, including the Texas Supreme Court, and the best way to do that is through the popular press.

 

 

Texas Civil Jury Trials Plummet

The right to trial by jury in civil cases is so important that our forefathers insisted in including it in the Bill of Rights.  Indeed, one of the main grievances leading up the American Revolution was the unfair treatment of the colonies with respect to jury trials.  In England, judges were viewed as subjects to the King, which often resulted in biased and unfair results, but citizens were protected by the jury trial.  But in King George III abolished the jury trial in the colonies, leaving colonists subject to the decisions of corrupt judges who served at the pleasure of the king.

Unfortunately, jury trials in Texas are quickly disappearing.  This week, the Dallas Morning News had an excellent article about the problem.  They state:

Civil jury trials are becoming rare in Texas.

The right to have disputes decided by a panel of fellow citizens is cited in the Declaration of Independence and explicitly confirmed in the constitutions of Texas and the United States.

But new statistics show that the right to “trial by jury” is quietly and steadily disappearing.

The 1,195 jury trials conducted in 2011 are one-third the number held in 1996, according to the Texas Administrative Office of Courts.  during the same period, the number of lawsuits rose 25 percent.

In 1996, juries decided one out of every 48 lawsuits filed.  Last year, only one in 183 new civil complaints resulted in jury verdicts. 

 

Experts say that there are three things that have contributed to this huge slide.  First, the Texas legislature passed significant tort reform measures.  Second, the Texas Supreme Court has become more pro-defense.  Third, courts have issued a series of decisions that shifted questions previously considered to be questions for the jury to questions to be decided by judges.

We’re doing what we can to reverse this trend.  While the deck is stacked against us by these three factors, we’ll continue to file lawsuits, set cases for trial, and try those cases that can’t be resolved.   We just hope other attorneys will do the same.

 

 

 

Personal Watercraft Safety

Yesterday, I wrote about boating safety, and I wanted to follow that up with a few tips on personal watercraft safety.  Because in many areas, there are more injuries from personal watercraft accidents than from boating accidents.

Personal watercraft are fast & highly maneuverable, and therefore, they’re a lot of fun.  But they can also be dangerous.  Here are some tips to help reduce the risk of injury:

1.  Remember that kids under the age of 13 are not permitted to ride a personal watercraft without an adult, and kids aged 13-17 are not allowed to drive without a Texas Parks and Wildlife boater education certificate.

2. All riders must wear a properly certified life jacket.

3. ASSUME YOU ARE INVISIBLE.  That means driving defensively and staying clear of other boaters, fisherman, and other people using the lake.

4.  Be cautious around other personal watercraft.  A number of people are seriously injured each year when their personal watercraft collide, often because the drivers are goofing around.  Don’t let that happen to you.

5. You must drive at no-wake speed within 50 feet of shoreline.  Not only is this one a law, but it’s also a source of continued injuries.  A number of people are injured or killed each year because they are going too fast and lose control of their watercraft and hit the shore.

6.  Avoid riding and drinking.  Remember that being in the sun, on the water, and in motion all amplify the affects that alcohol have on you. 

7.  Know the area.  Concealed dangers are a problem, particularly on Lake Travis, where levels change constantly.

8.  In Texas, it is illegal to ride your personal watercraft in the dark (between sunset and sunrise).

These are all important.  But perhaps the most important item (and the most difficult to remember) is to don’t let go of the thrust when turning.  When confronted with an emergency, the natural instinct is to let off the accelerator and turn.  But in most personal watercraft, when you let off the thrust, then you lose the ability to turn. 

We’re blessed in Central Texas to have several good lakes for personal watercraft use.  Just make sure that you’re being smart when enjoying these “gifts.”

 

We hope you don’t have any problems while using your personal watercraft, but if you are injured by the negligence of others, please call us so we can try to help.  You can call us at (512)476-4944 or you can submit your case using the submit a case forms throughout the site.

 

Boating Season Begins & A Sober Reminder About Boating Safety

I’ve seen it in my neighborhood, and if you live near any of our lakes, you’ve probably seen it too.  The last couple of weekends have brought out the boats, driving to boat launches and then driving on the lakes. 

Sadly, this weekend also brought our first boating accident death of the year, and it stands as a sober reminder that our fun weekends on the lakes may also turn tragic if people aren’t focused on boating safety.

Several years ago, I represented a lake patrol police officer, and he suggested to me that three simple things really reduce the risk of boating injuries.

The obvious start is to avoid drinking and boating.  Not only is drinking and boating as dangerous as drinking and driving, it’s worse.  People need to remember that the effects of alcohol are magnified by the sun, being on the water, and the motion of the boat.  One drink on the water has the same effect as multiple drinks on land.  So avoid drinking and boating.

The next suggestion is to make sure you know your lake.  Unseen hazards are big contributor to injuries.  That’s particularly true for Lake Travis, a fluctuating level lake, where hazards may be obvious one day and covered the next. 

Finally, make sure you have enough life jackets for everyone on board.  Proper use of life jackets could save you from drowning.  And knowing how to swim isn’t an excuse.  People get in trouble when there is an impact and they’re knocked unconscious or disoriented. Being a strong swimmer won’t help you in those situations, but a life jacket will.

These are not only safety issues, but liability issues.  My friend Steve Lombardi, a personal injury lawyer in Des Moines, wrote a blog post a year or two ago that listed all the ways a boater could get in trouble.  His post includes a good checklist of boating safety items, including items from your planning of the boat trip to transportation of the boat to time on the water.  You can read that post here.

 

We hope you have a safe boat outing. But if something does go wrong, please call us and let us try to help. You can call us at (512)476-4944 or submit your case usng the submit a case forms throughout the website. 

 

 

 

 

Austin Personal Injury Lawyer Says Some Wrongful Death Cases Settle Outright

In instances where the plaintiff’s case is strong and the defendant knows it, often a settlement is reached before going to court.

“This case involved the sudden death of a 19-year-old college student. In the wee hours of the morning, the man was riding on an all-terrain vehicle with another student when it flipped over. The young man was fatally injured, and the driver was charged with driving under the influence and involuntary manslaughter,” outlined Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P.

This case did make it to a criminal court the first time, and the jury acquitted the ATV driver. The deceased’s dad launched a civil federal lawsuit, a wrongful death suit, indicating the driver was drunk and speeding recklessly, causing the death of his son. Further details provided in the federal statement of claim intimated the ATV driver’s family had served both young men alcohol continuously over a period of several hours prior to the fatal wreck. “In fact, the ATV driver admitted to police at the scene that he had been drinking,” Schuelke pointed out.

The reason for the criminal trial acquitting the defendant involved the man invoking his Fifth Amendment right to remain silent and refusing to submit to a breathalyzer test. These two factors would not hamper a wrongful death lawsuit as the case would be heard in a civil court.

“As it turned out, the case did not go to court. It was settled before that for $2.7 million most likely because the details in the statement of claim and the admission of the ATV driver to police that he had been drinking continuously were strong indicators that a jury would find for the plaintiff,” remarked Schuelke.

Wrongful death lawsuits are those pursued in civil court, and they have a different standard of proof than required for a criminal case. In other words, the standard of proof for a wrongful death case is on a preponderance of the evidence, which means more likely than not.

“These types of lawsuits address the concept that in addition to harming the person who died, those who depended on the deceased for support, emotionally or financially, are injured as well. This is the reason for plaintiffs asking for compensation for the death of their loved one. They have sustained a grievous harm, and have not only lost their family member, but have lost their financial support, which are two devastating blows in one. Someone needs to be responsible for that loss,” Schuelke said.

A wrongful act may be a careless or negligent action such as driving while under the influence, a reckless act or an intentional act, like murder. Virtually every state has a wrongful death statute that allows the family of a victim to bring a lawsuit seeking compensation for the death of a loved one.

Contact Perlmutter & Schuelke PLLC at http://www.civtrial.com or (512) 476-4944.

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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