Types of Claims

Types of Texas Personal Injury Claims

1. General Negligence

The most common type of Texas personal injury claim is a negligence claim. To win, an injured person must prove four things: (1) the defendant owed the plaintiff a duty of care: (2) the defendant failed to meet the standard of care; (3) the defendant’s failure caused injuries, which were foreseeable; and (4) the amount of damages.

Duty and Breach
Defendants often admit that they have a duty not to injure others. As a result, the first hurdle most injured parties face is proving that the defendant was negligent — that is, the defendant failed to meet the standard of care. To do this, the injured person must prove that the defendant failed to take some action that a reasonable person would have taken or that the defendant took some action that a reasonable person would not have taken. For example, in a car wreck case, an injured person must prove that the defendant did something an ordinary driver would not do, such as running a red light, following too closely, or speeding. Similarly, in a case involving a defective product, an injured person must prove the manufacturer did something an ordinary manufacturer would not have done, such as not testing the product enough or failing to ensure that the products were made properly.

Causation
An injured person must then prove the injuries were the result of the defendant’s conduct, that but for the defendant’s conduct, the injuries would not have occurred. If, for example, another event caused the injury, or if it pre-existed the defendant’s conduct, it will be hard to win.

The injured party must also prove that a reasonable person would have foreseen that the defendant’s conduct might have caused the plaintiff’s injury, or some similar injury. In Texas law, the test is usually whether the damages are too remote from the original event. For example, in one leading case, a defective product caused a fire at a job site. After the fire department put out the fire, an employee came back to the job and slipped on the foam sprayed by fire fighters. The Texas court decided that the damages were too remote. While a person might have foreseen that a person could have been injured in the fire itself, the court held that a person would not have expected for the person to make it through the fire, but then slip on foam that was left behind by firefighters.

Damages
The injured party must prove what damages he sustained as a result of the defendant’s conduct. Personal injury damages are examined in more detail in another topic.

Comparative fault
A defense often asserted by defendants is comparative fault — that the incident was also caused by the injured person’s conduct. For example, two parties to a car wreck may disagree who caused the wreck. In cases where the defendant claims the injured person caused part of the damage, Texas law requires the jury to give each party a percentage of responsibility. The injured party’s award is then reduced by the percentage of his fault. For example, if a jury awards an injured party $100,000.00, but determines that both the injured party and the defendant were 50% responsible, the injured party only recovers $50,000.00. However, if the jury determines that the injured party is more than 50% responsible, the injured party is not allowed to recover any damages.

2.Texas Medical Malpractice Claims

Most Texas medical malpractice claims are governed by general negligence principles, but the claims also have their own set of rules and problems. In a medical negligence claim, the injured party must prove that the doctor or hospital failed to use the degree of care that an ordinary doctor or hospital would have used under similar circumstances. To prove this, the injured party must produce testimony from another physician establishing the standard of care and describing how the defendant doctor’s conduct fell below the standard.

Once the injured party proves that the doctor was negligent, the party must prove that he would have been better without the negligence. For example, if a patient in the early stages of breast cancer visits a doctor who fails to diagnose the disease, then the patient would be harmed if she could have received effective treatment. On the other hand, if a patient with fully developed breast cancer visits a doctor who fails to diagnose the disease, then the patient may not be harmed because the doctor could not have done anything about the disease at that late date.

Medical malpractice cases are very expensive to pursue because we must hire doctors to testify that a given doctor was negligent, and that the negligence caused harm. While we typically front these expenses, we are reimbursed by our clients out of settlement proceeds. Therefore, it is important to make sure that the injuries are serious enough to warrant a recovery over and above these expenses.

3. Texas On the Job Injury Claims

Texas on the job injuries are governed by the Texas Worker’s Compensation statute. If an employer maintains qualified worker’s compensation insurance, an injured employee is allowed to pursue a worker’s compensation claim, but is not allowed to sue the employer. The employee is, however, entitled to sue third parties who have negligently caused the on-the-job injury. For example, if an employee who is covered by worker’s compensation insurance is in a car wreck while on the job, the employee may sue the other person who caused the car wreck, but may not sue his employer.

If an employer does not maintain worker’s compensation insurance, then an employee may sue the employer, and the employer forfeits his comparative responsibility defense. As a result, if an employee can prove that his employer’s negligence caused any part of the incident, even one percent, then the employer is liable for the full amount of damages sustained by the employee.

4. Texas defective product claims

The primary causes of action pursued by persons injured by defective products are negligence, breach of warranty claims, and strict liability claims.

Negligence
The negligence claims are based on the principles described above. Negligence claims may only be brought against the company that engaged in the negligent conduct. For example, if the manufacturer made an error in assembling the product, then the suppliers or company that sold the injured person the product may generally not be sued.

Strict Liability
An injured party may also pursue strict liability claims against a product manufacturer, seller, and any distributors that sold the particular product if the person can prove that there was a manufacturing defect, design defect or a marketing defect in the product.

A manufacturing defect occurs when the product does not work as it was designed to work. For example, a person may have a claim against a car manufacturer if the brakes or seat belts fail to work properly. In these cases, the injured person must prove that the defect makes the product more dangerous than an ordinary person would expect the product to be. To prevail against any particular defendant, the injured person must show that the defect existed when it left the hands of the defendant. A design defect occurs when the product was made correctly according to its design, but the design itself is unreasonably dangerous. For example, cars designed with gas tanks in the rear may explode in a common rear-end collision. For an injured person to prevail on a design defect case, the person must prove that a safer alternative design would have prevented or significantly reduced the chance of injury and was economically and technologically feasible at the time the product was manufactured.

A marketing defect occurs when a manufacturer or seller fails to give adequate warning of the product’s known dangers or when the manufacturer fails to give adequate instructions to avoid dangerous uses of the product.

5. Breach of Warranty

When a product is sold, there may be implied warranties and express warranties related to the sale. Generally, when a product is sold, a seller gives an implied warranty that the product is fit for its ordinary use. Additionally, if a buyer tells the seller why he needs a product and the buyer relies on the seller to pick a suitable product for the buyer’s need, then the seller is giving an implied warranty that the product is fit for that purpose. Each of these implied warranties may be subject to modification or disclaimer in the contract.

A seller or manufacturer may also give an express warranty by making representations about the quality or benefits of a product.

If a person is injured because a product did not live up to these warranties, that person may sue.

Perlmutter & Schuelke, LLP 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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