Dog Bite Law: Was A Dog Attack At The Center Of The NCIS Disputes?

It’s not often that one of my practice areas collides with popular culture.  For years, I’ve had the honor of representing a number of victims of dog attacks.  These are often horrible, serious incidents because of the emotional toll that a victim experiences from an attack.

Imagine my surprise then when I saw a story that a dog bite might have led to the disputes between Pauley Perrette and Mark Harmon.

According to the story, the relationship between Perrette and Harmon deteriorated after a 2016 incident when Harmon brought his dog to the set and the dog bit a member of the crew.  Perrette was reportedly upset when Harmon was allowed to bring the dog back on set after the incident.   In fact, the story alleges that production company even had to work out a schedule so that Perrette and Harmon were never on the set together.

Another thing that struck me was the story’s mention that Harmon’s lawyer had advised Harmon about the potential liability of bringing the dog back onto the set after the incident.  What I thought was particularly interesting was the lawyer saying he had advised Harmon as to the legal concept known as the “one free bite” rule.  Under this theory, a dog owner can only be held liable for injuries caused by the dog if the owner knows that the dog bites.

This caught my attention because I hear it from people all the time, and it’s wrong, at least in Texas.  Texas is not one of the states that follows a true “one free bite” rule.  In Texas, there are a number of legal theories that can be used to impose liability on a dog owner even if the dog owner is unaware of any prior bite by the dog.

I don’t know who is to blame, but I know that I like Pauley Perrette for service work she has done, including a project that I worked on.  Several years ago, the United Methodist Church was asked by the Gates Foundation and others to help launch a program called Imagine No Malaria.  The denomination would help raise and adminster funds with the long term goal of eradicating malaria in sub-Saharan Africa.  Of all places, the United Methodist program was launched and started in Austin.  Many of those of us in Austin associated with United Methodist leadership worked hard on the program, and in 2011, Perrette joined the fight.  Since then, she has played a critical part in our fight against malaria.  So I’ve been a Perrette fan even though I’ve never had time to watch NCIS.

A Big Texas Supreme Court Win For Personal Injury Victims

Yesterday, the Texas Supreme Court handed down an important opinion that will help many plaintiffs.

In personal injury cases, when a victim goes to the hospital after a wreck and doesn’t have insurance, the hospital can file a lien against the victim’s eventual settlement.  That means that at the end of the case, the client has to pay the hopsital bill out of the recovery.

That makes some sense, but we often have a dispute with the hospital about how much they should be paid back.  You see, there are generally two tiers of pricing at a hospital.  All hospitals have a chargemaster rate — what the hospital believes is the true rate for the services.  But in reality, no one pays this amount — the chargemaster rates are largely made-up and not paid by anyone.

On the other hand, there are second rates — the negotiated, discounted rates that the hospital is actually paid by insurance companies, Medicare, etc.  These rates are usually a fraction of the rate that the hospitals try to charge the uninsured victim.

As an example, I was looking at a case today where the hospital’s chargemaster rates were over $10,000.00, but the real rate was roughly $2,500.00.

The statute says that the hospital’s lien is limited to a reasonable rate.

At the end of the case, we’ll have to negotiate with the hospital to come to an agreement about the reasonable rate that our client has to pay back to the hospital.  Most of the time we can reach an agreement, but sometimes we can’t.  And then, we have to sue the hospital and ask the Court to make a determination of the reasonable rate.

As part of that lawsuit, we ask for the amounts that people actually pay for the services — the insurance contract rates and the Medicare rates, etc.  It only seems logical that what the hospital actually receives from the vast majority of its clients is relevant to helping determine the reasonable rate for the services.

Fortunately, the courts looking at this agreed. Yesterday, the Supreme Court’s decision in In Re North Cypress Medical Center Operating Co., Ltd. upheld the trial court’s ruling requiring the hospital to turn over the negotiated rates.

This is a decision that makes sense, and it’s a decision that will help many people in the future.  Hopefully, the decision will help convince hospitals to be a little more reasonable in their negotiation and let victims keep more of their recoveries.

An article from the Texas Tribune about the case is here.

Posted on: April 28, 2018 |

Another Reason To Buy Uninsured Motorist Coverage – Hit-And-Run Wrecks Are On The Rise

Earlier this week, AAA released a study finding that hit-and-run wrecks are an increasing problem.  Among the study’s findings:

  • A hit-and-run wreck occurs every minute on US roads
  • Hit-and-run wrecks are increasing, with hit-and-run deaths increasing particularly fast
  • One in eight wrecks involves a hit-and-run driver
  • In 2016, there were 2,049 hit-and-run deaths, a record high
  • Hit-and-run deaths increased by an average of 7.2 percent per year from 2009-2016
  • Pedestrians and bicyclists are disproportionately victims of hit-and-run deaths

You can view the full study here.

This study is yet another reason why you should buy uninsured/underinsured motorist coverage when you buy your auto insurance.

Unisnured/underinsured motorist insurance covers your losses (cost of medical care, lost earnings, pain, mental anguish, physical impairment, etc) when the driver who causes your wreck doesn’t have insurance or doesn’t have enough insurance.

What you may not realize is that hit-and-run drivers are considered “uninsured” drivers under your policy.  Therefore, when you’re hit by a hit-and-run driver, the uninsured motorist insurance will provide coverage and cover your losses. The fact that the hit-and-run problem is increasing provides an additional reason why you should buy this coverage.

Addtionally, when talking about deaths, hit-and-run wrecks particularly affect pedestrians and bicyclists.   Again, what you probably don’t realize is that your uninsured motorist coverage will protect you when you’re a pedestrian or on a bicycle.  You don’t have to be riding in your own car for the uninsured motorist coverage of that car’s insurance to apply.  Your insurance will potentially provide protection wherever you are (in a car, walking, on a bike, or even on a horse) when you are hit by a hit-and-run driver.To learn more about your auto insurance, download our ebook,Top-9-Mistakes-When-Buying-Your-Auto-Insurance.pdf

Dog Attack Cases: Pit Bull Attacks Woman On Subway

Startling video is making its way around the popular news stories of a pit bull attacking a woman on a New York subway.   I can’t know what happened here, but I do think it’s good that the video has helped raise awareness of the issues of dog attacks.

We’ve been able to represent and help a number of victims of dog attacks over the years.  These have ranged from cases with relatively minor injuries to a terrible case where a child was killed by a large dog.  These attacks are prevalent problems, and the more publicity and awareness that can be raised, the better.

For example, one of the benefits is an article I saw today in the Prescott, Arizona Daily Courier today, which is titled “How To Avoid; What To Do When Attacked By A Dog.”  I found a couple tips and items in the article interesting and worth noting

  • Many attacks occur when victims are walking their own dogs, and the attacking dog starts off attacking the victim’s dog.  Be vigilant and prepared in those situations.  One expert recommended carrying pepper spray when walking your dogs.
  • Avoid eye contact with dogs.  Eye contact is essentially a challenge to the dog.
  • Keep something between you and the attacking dog.  Dogs tend to bite whatever is closest to them.  Having a walking stick or other item that you can stick out will often redirect the dog to attack that instead of attacking your body.
  • If you are being bitten, push against the dog.  This will often force the dog to open its mouth.  It can also help prevent tearing injuries.  The expert cited says many people get severe bites when trying to pull away from the attack.

I imagine the dog attack video is inpsiring other similar stories around the nation.  Getting this type of information in the hands of the public can be helpful.

As I said, I don’t know all the details of the incident, but I often try to analyze the information we do have to see what would be important in a case if a dog bite lawsuit was filed in Texas.

In this case, another article provides a little more light on the facts.  That article alleges that the woman was on the subway when the dog’s owner brought the dog on teh subway and the dog sat next sat next to the woman.  The woman asked the owner to move the dog, and he refused.  The woman then tried to push the dog off, and the man hit the woman.  The woman hit the man back, and then the dog attacked.

What are the red flags in this situation?

I think the biggest issue is the owner’s refusal to properly handle his dog.  The subway rules apparently require that all non-service dogs be restrained in a crate.  Not only did that not happen, but it doesn’t appear that the owner had any other control over the animal.

Another important issue in the claim would be the dog’s history.  While Texas doesn’t require a history of bites, a long history of attacks or violent behaviour does make the case easier.

I’m sure we’ll hear more about this case in the future, and maybe more of the facts will come out.

UPDATE:

I thought one benefit of the video going around would be more awareness about dog attacks. Today, I saw an article in People talking about what to do to prevent a dog attack and what to do if you’re in a dog attack.    There were a couple of things I find interesting.

First, the article notes that from the dog owner’s perspective, you need to prevent the attack.  It notes that dogs rarely attack out of nowhere or without a prior history.  Dog owners need to know their dogs and act accordingly.  I’ll agree with this.  In virtually every dog bite case that I’ve handled, there was ample warning to let the owner know that it needed to control the dog.  Unfortunately, the owners ignore these signs.

Second, in the event of an attack, this article also recommended putting something between you and the dog.  The prior article suggested a walking stick.  This article suggested a bag or a backpack.

I’m sure there will be additional stories as time goes on, and I think that’s great.  As I said, the more awareness we have on these situations, the better.

Posted on: April 25, 2018 | Tagged

Uber Self-Driving Car Fatality – A Follow Up

Last week, I had a post outlining the potential legal claims arising from the Uber self-driving car fatality in Arizona.

I wanted to update it, because there have been several new articles that have come out that back up my analysis about those who might have potential responsibility.

First, I noted that a potential defendant was the “driver” of the car should it be proven that the driver didn’t act in a proper manner.  Since the post, Arizona authorities have released the dash cam video from the Uber vehicle that shows the driver was not paying attention at all, looking down for several seconds before the wreck (I’m guessing at a cell phone).  This evidence would obviously support a claim against the driver (and it isn’t a surprise, driver inattention is a leading cause of car wrecks).

Second, I noted that Uber and the other technology manufacturers would face potential liability if their actions led to the wreck.  Since the post, additional evidence has come out that would support claims against both. Some of the arguments that could be made for a case against these parties are as follows:

  1. Technology experts are saying that the car’s system should have been able to pick up the pedestrian on its sensors.  As one researcher put it, “It absolutely should have been able to pick her up.  From what I see in the video, it sure looks like the car is at fault, not the pedestrian.”  Another good article on this topic is from Scientific American, “Uber Self-Driving Car Fatality Reveals the Technology’s Blind Spots”.
  2. Uber was having troubles with the technology even before the fatality.  This story says that Uber’s cars had trouble driving through construction zones and driving next to tall vehicles, like big rigs (which seem to be about 1/2 the vehicles on our Texas highways).  The same story suggest that the drivers in Uber’s cars had to intervene to avoid wrecks far more often than drivers of other self-driving cars.
  3. Volvo, the manufacturer of the vehicle in the wreck, is now claiming that Uber disabled the safety features that came with the Volvo.  (Cases can become fun when you get the parties pointing fingers at one another, as this would indicate is about to start happening here.)

I don’t know how things will shake out, but these are the types of arguments that we would be making as lawyers to try and determine who might have responsibility for the death in this matter.  so far, the evidence is revealing that each potential party I originally identified might have some fault.

A couple of other interesting things are arising out of the event.

Yesterday, the Arizona governor, who couldn’t welcome autonomous vehicles fast enough before this wreck, suspended Uber’s testing of self-driving cars.   Other companies are also slowing their testing of self-driving cars.

Perhaps the one good thing that might come of this tragedy is a re-examination of what regulations are necessary to protect the public.  In recent years, our concerns have been that states and the federal government would enact laws making it difficult to hold manufacturers accountable for the problems caused by self-driving cars.  For example, California proposed a rule (that was scrapped) that would have let companies avoid liability if the car had not been maintained to manufacturer specifications.  This could have resulted in letting them off the hook if your car’s sensors were dirty, even if the accident was caused by something else.

This event may cause regulators and legislators to take a second look, and to take actions to make sure these cars make our roads safer, but to also allow accountability when the inevitable failures occur.  For example, the wreck prompted an article from Bloomberg offering the opinion that “Regulators Are Asleep At The Wheel On Self-Driving Cars.” 

As I said, I don’t know how this will shake out, but there are interesting issues that we’ll see arise over and over.

 

 

Posted on: March 27, 2018 |

Uber Self-Driving Car Death — A Potential Law School Exam Question

By now, you’ve probably heard about the death that resulted from a car wreck involving an Uber self-driving car.  The tragic facts surrounding the wreck would make a great law school exam question.

What do I mean by that?  In law school, exam questions were designed to present as many complicating issues in a case as possible.  This situation presents a lot of interesting legal questions.

Here are the facts:

On Sunday night, Rafael Vasquez, an Uber test driver, was behind the wheel of an Uber Volvo XC90, which was driving in autonomous (self-driving) mode.  Elaine Herzberg stepped into the street while walking her bicycle.  The car hit Herzberg, killing her.

Interesting questions here

1) Who might be liable for the claim?

In Texas, there would be several potential parties who might be liable for the claim.

The “driver’ of the car

The most obvious potential defendant in any car wreck case is the driver of the car.  In this case, the “driver” was Rafaela Vasquez.  While the car was in self-driving mode, the driver is there for protection.  A good case can probably be made that she didn’t uphold her responsibilities, and that contributed to the wreck.

Uber

Another obvious potential defendant is Uber.  In this case, Uber may be responsible on several levels.

First, in Texas, a company has respondeat superior liability — it is liable for the negligence of its employees when the negligence is done while in the course and scope of the employee’s employment.  Here, if Ms. Vasquez was negligent, then that negligence would likely be imputed to Uber.

Second, Uber would have its own liability for its own conduct.  In Texas, employers can also be negligent for improper hiring, training and supervision.  That is particularly applicable here.  At least one article notes that Ms. Vasquez had a sketchy driver’s history.   Her history allegedly includes several prior driving violatios and even having had served jail time for attempted armed robbery.

Finally, Uber may have liability based on the technology in the car.  If Uber helped design the hardware or software running the car, and some failure of that software or hardware contributed to the wreck, then Uber would also likely have liability based on those failing.

Other hardware or software manufacturers

In this case, it appears likely that there was also a failure of the hardware or software involved so that it failed to detect a risk and failed to reduce the risk.  Articles have mentioned that the cars are supposed to be programmed to find pedestrians and potential hazards, even in the dark.  It appears that the car failed in that regards here.  If that’s the case, then the hardware or software manufacturers likely have some liability as well.

2) Does Elaine Herzberg’s negligence for not using a cross walk bar her claim?

Almost immediately after the wreck, people starting victim blaming here, arguing that Ms. Herzberg was responsible for the wreck because she didn’t use the cross walk that was up the street.   If that’s true, would it bar Ms. Herzberg’s case?

Not in Texas.  Texas is a comparative responsibility state.  While Ms. Herzberg’s conduct wouldn’t necessarily bar her claim, it could reduce an award and even bar it in certain circumstances.  In Texas, a jury would start by being asked two questions.  One, did the negligence of the parties contribute to the wreck?  And two, the jury would be required to allocate a percentage responsibility amongst all of those parties the jury finds to be responsible.

Generally, if a jury finds Ms. Herzberg was negligent, then the reward would be reduced by the percentage of her responsibility.  For example, if the jury found Ms. Herzberg was one-third liable for the wreck, the ultimate award would be reduced by one-third.

Having said that, if Ms. Herzberg is found to be more than 50% responsible for the wreck, she would be completely barred from bringing a claim.

There are other potnetial issues, usch as the Uber insurance policy and what policies pay out how much oney.  But we may never know the answer to those questions.

 

 

Three Things That Are Going To Annoy You About Your Personal Injury Case

I wish I could tell you that your personal injury case will go exactly how you like it and as smooth as you like it.  But form doing this for over twenty years, I know there are at least three things that you’re going to frustrated about at some point.

1. THE TIME IT TAKES TO GET YOUR MEDICAL RECORDS AND BILLS

Once you have finished receiving treatment from your doctors or other medical providers, the next step is for us to gather your medical records and bills.

I know what you’re thinking, “Why do you need to to that?  The doctor gave me all my records and bills, and I’m giving them to you.”  Unfortunately, you don’t have everything.  For example, if you went to the hospital, you were probably given 5-10 pages of “records”.  You think that’s all there is.  But when we order the records from the hospital, we could get 200-300 pages just for a one time visit.

So we need to get the full records and bills and get them in a format that the insurance company will use.

Unfortunately, this process takes time.  For doctors and medical providers, giving lawyers their patients’ records is way down on the list of things they want to do or spend money on. I’m not blaming them for this, but it’s just part of the process.  The result is that what seems like it should be easy takes a LONG time.

In fact, it takes so much time that lawyers who do what we do had to go to the legislature and state agencies to ask for rules to try and put time limits on how long doctors have until they turn over the records and bills and even limit the amount that they can charge for the records.

We’ve tried a number of different ways to speed this up, but the result is that the process just takes a lot of time.  You’ll be frustrated with the amount of time, but just know that we’re working hard to get them in, and we have to let the process play itself out.

2. SUBROGATION

When your health insurance, Medicare or other entities pay for benefits that relate to the wreck,  most of the time, you have an obligation at the end of the case to pay them back.

A lot of people are frustrated learning that they have to pay the insurance companies back.  But it’s a requirement set out in almost all insurance policies, and even written into law in the case of Medicare, Medicaid, and other governmental providers.

The other frustrating thing about subrogation is that it takes time.  At the end of the case, we’ll negotiate with them to try and minimize what you have to pay back.  But by its nature, we can’t start those negotiations until the case settles because all of these companies want to know the settlement amount, fees, etc. to determine the amount of reduction they will provide.  So in most cases, the case will be over and we’ll still be negotiating with the various providers.  Indeed, in the case of Medicare and some others, the negotiation with the subrogation provider can take longer than the negotiation with the actual insurance company.

3. YOU MAY BE CONTACTED BY OTHER LAWYERS

In the past, some injury lawyers would settle cases, but not pay the hospitals for the outstanding bills. So the hospital lobbyists went to the legislature and had a law passed that gives them a lien on the victim’s cases.  That means the hospital can file a notice in the county deed records, and if the hospital isn’t paid back at the end of the case, the hospitals can sue the insurance companies or the lawyers involved directly.

Some letters may try to even scare you by saying the insurance company will include the hospital on your settlement check. In theory, insurance companies can include the hospital on a check to protect themselves from being sued.  But normally, this isn’t a big deal at all. It’s standard that we’ll settle or resolve cases, negotiate with the hospital, and then pay them a fair amount. This is typically done by the insurance company writing the hospital a check for the negotiated amount (to protect themselves) and then the insurance company writing a second check to you and our firm for the rest of the settlement.  Usually this is an easy negotiation, though in rare cases I end up suing the hospital because they’re seeking an unreasonable amount. But it happens in a lot of cases.

Unfortunately, one byproduct of this system is that a number of personal injury lawyers now hire people to search the county’s  records and find cases where the hospitals file liens.  Then the lawyers write the patients letters that make the lien sound scarier than it really is because the lawyers are trying to solicit new cases for themselves.  I wish the State Bar would regulate these lawyers better because I don’t feel like they’re being completely truthful with the public and they cause people stress and anguish about things that are typical.

So that’s why you may get a rash of letters from lawyers.  They’re just trolling for new business.  They’re not bill collectors.  Your account isn’t in collections.  And this isn’t something that’s unusual or a problem.  We deal with it a lot.  Of course, these guys don’t tell you that it’s normal because they’re trying to scare people into calling them for new business.

 

Texas’s Texting While Driving Ban Goes Into Affect Today. Will It Make You Less Safe?

Today, Texas’s new texting while driving ban goes into affect.  For the first time, Texas will have a state-wide ban.  A violation of the ban is a misdemeanor, with fines between $25 and $99 for first time offenders and $100 to $200 for repeat offenders.

For years, I’ve been critical of Texas officials for their failure to adopt a state-wide texting while driving ban.  So, I should be excited that a new ban is going into affect, right?

I’m not.  I think a good argument can be made that Texas’s ban makes many of you less safe.

What do I mean?

While the state refused to take the lead on this critical safety measure, many of our cities and towns didn’t.  Prior to the state-wide ban, over forty Texas cities and towns, including Austin and San Antonio, had their own limits on the use of cell phones.  Many of these bans are more strict than the Texas ban in two ways.

First, the Texas ban merely limits the use reading, writing, or sending an electronic message  (it’s not clear if this just covers texts and emails or will it cover reading websites as well?). Many of the local ordinancesgo further than that.  For example, many cities like Austin not only banned texting while driving, but also banned the use of phones (and other handheld devices) without a hands-free system (like a bluetooth headphone).  So many of these local ordinances banned more types of activities that have been found to be unsafe.

Second, many of the local fines are more expensive than the new Texas fine.  For example, in Austin, the fine for a first offender starts at $200, and the maximum fine can go up to $500.  In Kyle, the fine is between $100 and $500 for a first offense, between $200 and $500 for a second offense, and $500 for a third offense.

Unfortunately, the new Texas law also contains a pre-emption clause that overrides the local laws “relating to the use of a portable wireless  communication device by the operator of a motor vehicle to read, write, or send an electronic message.”

That means that for many cities throughout the state, including Austin, the punishment for texting while driving — the fines—are becoming more lenient.  It may also mean that the more broad bans requiring hands-free devices may also be overturned — we’ll have to wait to see how courts interpret the statutes.

But regardless of this, for many parts of the state,  including Austin, there is actually less of an incentive to text and drive today than there was yesterday.

This is a mistake.  The dangers of texting while driving are well known, and it is a factor in probably more than half of the car wreck and trucking accident cases that our firm handles.  Studies show it is more dangerous than drinking and driving.  While I applaud the state for finally acting, they should have allowed those communities who want even stronger fines to keep those fines in place.  We want to discourage as much texting and driving as we can.

If you want to read the Texas law, it is available here.

I’ve Handled Dog Attacks, But A Pig Attack? What’s The Law On That?

Over the years, I’ve handled a number of dog attack cases, but last week, I read a story about a 3 year old Alabama girl who was injured when she was attacked by a neighbor’s pig.

I don’t want to make light of the story because it sounds like the girl suffered severe injuries.  But it did get me wondering what the law is on pig attacks.  Would a claim against a pig owner be the same as a claim against a dog owner?

Trying to satisfy my curiosity, I did a quick search on Westlaw to see what the law on this issue says.  Amazingly, I don’t think there are any Texas cases involving pig attacks (though I did see something that said pig bites are fourth most common bites reported by vets behind cats, dogs and horses).

After some shrewd legal analysis, I’ve come to the opinion that elements of a pig attack case are the same as a dog attack case.  I’ll spare you the details, but know that what a person making a claim here could probably pursue a strict liability claim if the pig has a history of violence or dangerous behavior or a claim based on the pig owner’s failure to properly handle and secure the pig.

If the story is correct, that the pig has a history of getting out and causing trouble, then the victim probably has a good chance of prevailing under Texas law.  But this actual case happened in Alabama.  Who knows what the law is there (and I’m certainly not going to check)?

What To Make Of The New NFL Brain Injury Study

Yesterday, a new study on brain injuries in NFL players that was published in the Journal of the American Medical Association made news.

As you may have heard, the study looked at brains of 111 former NFL players, and 110 of the brains had evidence of chronic traumatic encephalopathy (CTE).

I’ve been trying to process the results, and I’ve reached a couple of conclusions.

First, you have to be careful with the results.  The only way to truly test for CTE is by doing an autopsy once the person is deceased.  In this case, all of the brains in the study were donated by the players’ families.  Obviously, most of the brains would have been donated because the family had a concern about the player’s condition before the player’s death.  Even the doctors who did the study confirm this.

Second, regardless of what I said above, the numbers are startling.  This is a lot of players who have had problems, and it’s something that we can’t ignore.  For a long time, there was a debate about whether CTE was even a real disease.  These numbers, along with other similar research, show that ti is a real problem.

Third, for safety’s sake, we need to make sure that we’re not limiting the focus to the NFL or even football.  With regards to CTE, it isn’t limited to football, soccer and hockey and at least one former major league baseball player have been diagnosed with CTE.  We need to looking at ways to make all sports safer in terms of protecting the brain.

Beyond that, we can’t let our attention be focused on CTE and sports.  Many, many more people will sustain severe brain injuries in car wrecks and falls than in sports.  We need research to continue to help us determine how brain injuries can be limited in the average person and not just in the athlete.

For more information on the new study, you can read the following articles:

 

Schuelke Law 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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