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.

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

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:

 

U.T. Looking To Cut Football Brain Injuries

My University of Texas football team hasn’t been on the cutting edge of winning the last few years (and we’re hoping that’s changing), but we are on the cutting edge of trying to protect players from brain injuries.

It’s no secret that an increasingly difficulty issue in football is the rise (or at least heightened awareness of) brain injuries suffered by players.  There are some things that can be done, such as teaching proper technique and making sure that helmets are state of the art, but until now, what a school or coach can do to protect kids has been largely limited.

Now however, Riddell and Texas are taking a big step towards safety by including monitoring devices in players’ helmets.  Starting this year, all University of Texas players’ helmets will have sensors that send signals to the trainers’ hand held devices when the player sustains a significant hit in the head.  The trainer can then monitor the player and look for signs of a concussion or head injury.  Texas will be the first Power 5 school to provide this technology to every player.

This is important.  While concussions are bad, one of the biggest risks in sports is known as second impact syndrome.  Second impact syndrome occurs when a player sustains a significant blow before the brain has healed from the original concussion.  The second impact, which can occur minutes, days or weeks after the first concussion, typically causes much more severe problems than the original impact.    While some concussions are obvious, some people don’t show signs of symptoms until hours or even days after the event.  Thus, the ability to monitor the impact of a hit in real time, will make it much easier to look for problems in real time, minimizing the risk of second impact syndrome.

Now, if we can only find some technology to help us find a few more wins each year…..

 

 

Emergency Room Not Diagnosing A Concussion, Revisited

A few months ago, I wrote a short article describing why emergency rooms do such a bad job at diagnosing concussions/brain injuries: The emergency room didn’t say anything about a concussion. Does that mean I don’t have a brain injury?

Recently,  I came across a study that really quantifies the problem I discussed.

The study, primarily led by several doctors from the University of Washington, was laid out in an article entitled Accuracy of Mild Traumatic Brain Injury Diagnosis, which was published in the August 2008 issue of the Archives of Physical Medical Rehabilitation.

The article starts by noting:

Accurate identification and diagnosis of a mild TBI is the first step toward providing clinical care.

Unfortunately, despite the accurate diagnosis of a brain injury being so important, the study found that emergency rooms are not very good at making the diagnoses.

The study looked at 197 patients who had been to emergency rooms.  They looked at medical records, and in some cases interviewed the patients, to determine whether they patients had a brain injury, as defined by the Centers for Disease Control mild Traumatic Brain Injury work group.  The researchers then took those patients who were diagnosed with a brain injury and looked at the patients’ emergency room records to see what was diagnosed in the emergency room.

The results were startling.

The emergency room doctors failed to make a diagnoses of a head injury or concussion in 56% of the patients who were later determined to have a brain injury.

That’s a stunning number.

There are some things that can help improve the accuracy of the emergency department physicians.  If the patient complained in the emergency room about confusion, feeling dazed, or having memory problems, then the diagnoses was more accurate.  However, even with those findings, the emergency department still missed the diagnoses on 37% of the patients.  That’s still a substantial number of patients who have a brain injury that doctors are missing.

Oddly, the emergency room physicians’ diagnoses weren’t dramatically better even when the patient reported a loss of consciousness — which should be a red flag.  The doctors still failed to make the proper diagnoses of a head injury in about 50% of the patients who had told the doctors that they had lost consciousness.

This means that you have to be diligent about noticing symptoms.  I’ve repeatedly written that misdiagnoses is a problem and that the best way to find the problem and to get proper treatment for the problem is for someone close to the person to look for symptoms.

To learn more details about potential symptoms, you can read our other articles:

If you or a loved one has sustained a brain injury in an accident, please call us at (512)476-4944 and we’d be happy to see if we can help.

Brain Injuries: New Study Finds Fewer People Recover From Post-Concussive Syndrome

The April 2017 issue of the Journal of Neurotrauma reports on a new study about post-concussion syndrome.

The study followed 110 patients who had post-concussive syndrome symptoms for more than three months, and the findings were stunning.  Of those patients, only 27% made a full recovery.  Of the 27% who made a recovery, 67% made a recovery within the first year.  And no one who had symptoms over three years ever made a complete recovery.

For those groups that didn’t recover, the continuing symptoms (in order of frequency) were:

  • Headache
  • Difficulty concentrating
  • Fatigue
  • Dazed/don’t feel right/in a fog
  • Pressure in the head
  • Sensitivity to light
  • Difficulty remembering events
  • Neck pain
  • Sensitivity to noise
  • Depression/sadness
  • Insomnia/sleep disturbance
  • Irritability
  • Anxiety
  • Frustration
  • Feeling slowed down
  • Noise in the ears
  • Vision changes
  • Lightheadedness
  • Imbalance
  • More emotional
  • Dizziness
  • Nausea
  • Increased sensitivity to alcohol
  • Confusion
  • Personality changes
  • Vivid dreams
  • Numbness
  • Vertigo
  • Panic attacks
  • Disorientation
  • Stomach ache
  • Loss of appetite
  • Slurred speech
  • Seizures
  • Vomiting

These findings are significant to our brain injury cases.

Most insurance companies argue that brain injuries typically heal themselves and symptoms disappear after six months or a year. The insurance companies use that argument to reduce the value of the claim.

This study refutes that.  If a client has had symptoms lasting more than three months, then this study is evidence that the client will likely never make a full recovery.   Obviously, if an injury is permanent then the value of the case is higher.

The study is also interesting because it has a good list of symptoms of a brain injury.  It’s important for people to know these symptoms to help them recognize when they might have a brain injury.

Another interesting fact was the distribution of the symptoms.  Generally, post concussion syndrome has three classes of symptoms:

  1. Cognitive symptoms — affect your thinking
  2. Affective symptoms — affect your mood (depression, irritability, etc)
  3. Somatic symptoms — separate symptoms (headaches, light sensitivity, etc).

The study found that the persisting symptoms were quite evenly distributed between the three classes of symptoms.

 

 

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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