request a free consultation

Who Is Held Accountable for a Commercial Truck Accident?

Friday, November 26, 2021

Serious and fatal commercial truck accidents occur every day. Although trucking companies and their drivers have dozens of strict federal safety laws to follow, mistakes and accidents still happen. In 2017, 4,657 fatal traffic accidents around the U.S. involved large trucks. Holding someone accountable for a commercial truck accident could result in change on an institutional level. A lawsuit could force a truck company to enhance its safety measures with help of a Dallas truck accident attorney. It could also lead to a compensatory award for injured victims. Identifying the defendant, however, is not always easy.

The Truck Driver

It was more common in the past for injured truck accident victims to hold at-fault truck drivers individually liable for damages. Most truck drivers work as independent contractors, not employees. Under previous federal law, a victim could hold a truck driver individually liable for damages if that driver was negligent, distracted, drunk, careless, reckless or otherwise responsible for causing the truck accident.

Today, however, most trucking companies will be vicariously responsible for their truck drivers, even as independent contractors, if they were on duty at the time of the crash. A truck driver may be independently liable, or liable through his or her own insurance company, if the driver was not on duty at the time of the accident.

The Truck Company

Current law upholds respondent superior, the common law doctrine of agency, in most truck accident claims. This law, also known as vicarious liability, states that responsibility for the acts of a subordinate (e.g. an employee) will go to the superior (e.g. an employer). In other words, a company will be responsible for the actions of its on-duty employees. Although most truck drivers are independent contractors, the trucking company that hired the driver will still be vicariously responsible under federal law if the crash occurred within the driver’s scope of employment. Scope of employment depends on several factors.

  • The time and place of the accident
  • The type of work the driver was performing at the time
  • Acts the employer reasonably expected the driver to perform
  • The amount of freedom the employee had at work
  • Whether the driver was engaged in a personal activity

In most cases, if a truck driver causes an accident through texting and driving, breaching the hours of service regulations, drunk driving, drowsy driving, speeding, making an unsafe lane change, or through other means, the truck company will be accountable. The truck company could also be responsible for an accident if it caused or contributed to the crash on a company level. Examples include hiring an unsafe truck driver, failing to conduct drug/alcohol tests and inadequately maintaining its trucks.

A Product Manufacturer or Distributor

A trucking accident could come down to product manufacturer liability if a defective or dangerous vehicle part contributed to the crash. Examples include defective brakes, tires, accelerators, ignition switches, seat belts, airbags and steering columns. Most product liability claims do not require proof of negligence for the victim to obtain compensation. It is generally enough to prove that the auto part had a defect and that this is what caused the crash.

Multiple Defendants

Some truck accident claims involve the liability of multiple parties, not just the company or the driver. Other liable parties could include a cargo loading company, the owner of the commercial truck, a property owner or a government entity. If more than one party shares fault for the truck accident, all could be jointly and severally liable for damages. Each party may be equally responsible for paying for all the victim’s damages or only responsible for the portion of damages he or she caused. For example, a truck company could be partially liable for a drowsy driver, but a product manufacturer could share responsibility for defective brakes. A truck accident lawyer can help a victim determine the identity of the defendant(s).

Posted by Aaron Herbert at 4:21 pm

What are Common Signs of Nursing Home Negligence?

Thursday, October 20, 2016

Our nation’s elderly are our greatest living accounts of history. They’ve lived through many of our nation’s greatest moments and often have a story to tell. Unfortunately, not everyone treats senior citizens with respect. Nursing home abuse and negligence are on the rise – a recent study from Cornell University found the actual incidence of elder abuse is about 24 times higher than reported to law enforcement or social services. Of the many types of abuse, psychological abuse is the most common. Learn about elder abuse, the signs of neglect, as well as when you should consult an attorney.

What is Elder Abuse?

As defined by the Center for Disease Control and Prevention (CDC), elder abuse is any type of abuse or neglect of someone age 60 or older, performed by a caregiver, loved one, or anyone with whom there is an expectation of trust. Nursing home professionals, for example, should take care of residents.

While many types of abuse show a specific intent to harm, neglect is a little different. Nursing home neglect involves a breach of duty or providing substandard care to a patient, resulting in harm.

The Types of Nursing Home Neglect

Just as there are many types of abuse, there are also several different forms of nursing home neglect. The main kinds include:

  • Social and emotional neglect. Patients in nursing homes must be well cared for, and that means socializing and tending to their emotions in a positive way. When the nursing home staff repeatedly ignores or yells at a patient, it’s social neglect.
  • Personal hygiene neglect. Senior citizens must have their bedpans and sheets changed frequently. Often, they need help with tooth brushing, bathing, and laundering. Failure to provide this assistance is personal hygiene neglect.
  • Basic needs neglect. Aside from providing personal hygiene, nursing home support professionals have an obligation to provide their residents with a safe and clean environment, with plenty of fresh food and water.
  • Medical needs neglect. Nursing home residents may require medical care for diabetes, infections, limited mobility, or cognitive dysfunction.

What are the Signs of Nursing Home Neglect?

Generally, nursing home neglect will present warning signs. Such signs differ based on the type of neglect. Unfortunately, the elderly are often unable to advocate for themselves, occasionally lacking the mental capacity to do so. Like many victims of abuse, they may be afraid to speak up. If you have a loved one in a nursing facility, be on the lookout for signs of neglect:

  • Sudden or rapid weight loss may be a sign of basic needs neglect.
  • Persistent or recurrent bedsores or pressure ulcers may be an indication your loved one isn’t being turned often enough.
  • Repeated injuries from falls may indicate a lack of support.
  • Signs of dehydration or malnutrition: sunken in eyes, skin tenting, dry mouth, or cracked skin.
  • Withdrawn behavior or sudden changes in behavior.
  • Sudden changes in appearance, including changes in hygiene.
  • A change in interaction with other residents and staff: For example, a person suffering from neglect may become less friendly to those around them.
  • An unsafe environment: Slippery floors, poor lighting, and rickety furniture in a resident’s room are signs of an unsafe environment.

What Should I Do if I Suspect Elder Neglect?

The presence of any of these signs don’t necessarily mean elder neglect, but it’s always better to be safe than sorry. Report any suspected abuse or neglect to Adult Protective Services (find your local office by calling 800-677-1116). The agency will launch an investigation into your loved one’s case and take action if necessary.

If your loved one has been the victim of abuse or neglect, talk to a personal injury attorney.

Posted by admin at 10:37 pm

Who is Liable When a Child is Injured in Daycare or with a Babysitter?

Wednesday, April 13, 2016

In the event that your child suffers an injury under the care of a babysitter or daycare center, the first thing you’ll want to do is confirm that your child is okay. But that concern will quickly turn to anger if you think the childcare provider has been negligent.

We all want the best for our children and should feel confident that they will be taken care of when we leave them in the hands of caretakers whose job it is to watch out for them. Unfortunately, negligent conduct is not unheard of and the consequences can be dire.

Are Daycare Waivers Valid in the Event of an Injury?

Nearly all daycare providers require parents to sign waivers of liability before enrolling a child into care. These releases grant provisions for emergencies when the care provider must get medical attention for an injured child when the daycare center can’t contact the parents fast enough.

Other sections of the release typically include indemnity clauses stating that the parents forfeit their right to sue in the event that a child is hurt while in their care. However, this does not mean parents have signed away their right to compensation if their child is injured.

What to Do if Your Child is Injured at Daycare

The courts have said that it’s against public policy to grant immunity to daycare centers before a child is hurt, as this could allow daycare centers to act negligently without consequence. Especially since the victims in question are innocent and defenseless children, the courts cannot condone a waiver that lifts responsibility from the daycare center.

Therefore, although parents sign a clause not to press charges in the event of injury, in a court of law, this clause is completely useless. Daycare centers continue to include it in their waivers to discourage parents from filing claims, but informed parents know that this is just a bluff, and if their child is injured, they have a right to file a lawsuit for compensation.

Understanding the Rules of Child Abuse and Neglect

If your child is hurt while under the supervision of a daycare center, babysitter, or another person who was responsible for their care, you may have a case of negligent supervision. In these cases, any person who has accepted responsibility for your child but acts carelessly or inattentively can be sued for negligence.

To prove a case of negligent supervision, you must have evidence that the person or organization accepted responsibility for looking after your child. Then, you must prove that the caregiver did not properly monitor your child. You will have to prove that your child’s injury was foreseeable and preventable, and that the supervisor’s failure to monitor your child properly was the cause of the injury.

There are extreme cases of child abuse while in the care of a responsible party, including hitting and kicking children. These cases are terrifying and devastating to children and parents, and justice should be pursued actively in a court of law to hold them fully liable for damages.

Seek Help in Your Time of Need

At the Law Firm of Aaron A. Herbert in Dallas, we honestly hope we never have to see you in our offices for a case of child abuse or neglect from a daycare center or babysitter. No parent should ever have to go through the reality of a child being hurt due to negligence. In the awful event that this happens, you need to act swiftly against the responsible party.

Contact a Child Injury Attorney

Contact us today for experienced, aggressive, and dedicated representation that will fight for your rights, your child’s rights, and for full compensation from the defendant. Please reach out to our skilled daycare abuse and neglect attorneys if you see any signs that it may be happening to your child.

Posted by admin at 10:57 pm

What Happens if I am Injured While Getting a Tattoo?

Wednesday, March 9, 2016

Needle use may seem like an old problem, or one that could be considered an issue that we have effectively controlled and know how to avoid. In reality, it’s still a major problem, and it’s just one of the many complications a person can run into at a tattoo parlor. In fact, dozens of legal issues and negligence claims may be raised against these businesses, ranging from style and design mistakes to infections and diseases.

Tattoo Parlor Responsibilities and Legal Options

Negligence is one of the main legal issues tattoo parlors and artists face. This is an area of civil law that is commonly used to determine who is responsible in personal injury claims. To avoid committing a negligent act, individuals and businesses must provide a reasonable standard of care, ensuring they don’t cause intentional or unintentional harm. To determine negligence in court, a plaintiff must demonstrate:

  • A breach of duty. In this case, the business must have failed to provide a minimum standard of care.
  • There was an injury. The problem must be carefully documented, including side effects, medical treatments, and related expenses.
  • The breach of duty directly caused the injury. The tattoo parlor’s negligence must have clearly damaged the victim.

Understanding Standards of Care

Standards of care keep businesses safe and accountable, and tattoo parlors and artists must meet these principles at all times to avoid negligence. Common standards of care include:

  • Understanding a client’s medical history and any complications that may result. For example, a person’s allergies must be considered before starting a tattoo.
  • Only serving individuals over 18 years old.
  • Meeting all state and federal mandated health and safety standards.
  • Following hygiene criteria, such as washing one’s hands and using sterile gloves.
  • Providing accurate, complete advice for treating the tattooed area.

A business that fails to meet these standards can (and should) be held liable. Negligence may lead to infections and serious diseases, which can affect a person’s quality of life.

Liability and Health Consequences

Infections, rashes, and other injuries are common damages a person may experience following a tattoo. However, though negligence in this case mostly concerns whether or not the business maintained a safe and sterile environment, simply getting an infection may not be enough for a personal injury claim; customers must assume a few known risks when getting a tattoo.

Though clients do sign consent forms acknowledging these dangers, a parlor could still be found responsible. The outcome of these cases largely hinges on proving negligence and whether or not the damage caused extended beyond the assumed risk of getting a tattoo. For instance, a rash resulting from an unknown reaction to ink is an assumed risk. A rash caused by a dirty needle, however, is not a risk someone knowingly assumed. Indeed, proving the degree of a professional’s negligence against the level of assumed risk will affect the outcome of your case.

Proving Negligence Alongside a Texas Personal Injury Attorney

Demonstrating negligence in these cases can be difficult. Tattoo parlors will likely claim you assumed the risk associated with getting a tattoo. That’s why a successful claim hinges so much on demonstrating that the artists’ actions led to an injury that would not have occurred in normal circumstances. Evidence, such as proper health and safety documentation, will be pivotal to your case, as will working with the right attorney.

There are a range of defenses a business can try to claim, from calling your conduct into question during the appointment to pointing out that any waivers you signed protect the artist or business from any litigation. If you are suffering from an injury and run into these excuses, you may be faced with extensive medical bills on top of your pain and suffering. Reach out to the Law Firm of Aaron A. Herbert, P.C., for a devoted look at your case.

Posted by admin at 11:57 pm