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Is a Bystander Claim Derivative in Texas?

Thursday, March 19, 2020

Victims with physical injuries from an accident are not the only parties eligible to bring claims to damages in Texas. Texas also recognizes the mental anguish and emotional suffering a victim’s family members and loved ones go through – especially those who witnessed the traumatic accident firsthand. State law enables people negatively impacted by a family member’s accident to file what the courts call bystander claims.

Bystander claims are free-standing torts in Texas, meaning the plaintiff can bring a bystander claim separately from a victim’s direct civil action. Bystander claims are derivative in Texas, however, meaning the outcome of a related personal injury or wrongful death case will affect the outcome of the bystander claim.

What Is a Derivative Claim?

A derivative claim is very different from a direct claim. While a direct claim focuses on the legal rights of the individual directly injured, a derivative claim serves the interests of someone other than the victim. A wrongful death lawsuit is technically derivative, for example, since the plaintiff is not the actual victim of the accident in question. Bystander claims in Texas are also derivative.

The outcome of a direct claim will foretell how the courts will rule on a derivative claim, in general. If the direct claim finds the defendant not liable for the victim’s injuries, for example, the derivative claim will most likely fail as well. The courts will not find the same defendant not liable for the direct injury but liable for derivative emotional harm. Likewise, a positive verdict for a direct claim could portend a successful derivative claim, as long as the plaintiff has all the other necessary elements.

When Can Someone File a Bystander Claim?

It is not always possible to file a bystander claim after a harmful accident. In Texas, the plaintiff must be a close relative of the party directly involved in the accident. The courts restrict the right to recover to only the victim’s spouse, parents, grandparents, siblings and children. It is not a requirement that the plaintiff must live with the victim at the time of the accident. The claimant must also meet certain standards of proof to obtain compensation.

  • The plaintiff witnessed the accident or was nearby when it happened. The plaintiff must have seen the accident or been at the scene to qualify for damages, with a few exceptions. It typically will not be possible to seek damages for finding out about a loved one’s injury or death through someone else or over the phone.
  • The plaintiff suffered an unexpected, extreme and immediate shock. In general, the courts require the plaintiff to prove that witnessing the accident (or, in some cases, discovering the injured or killed loved one) was unexpected and an extreme shock. In other words, the plaintiff may not be eligible if he or she found out about the accident and purposefully drove to the scene.
  • The plaintiff can prove specific mental and emotional trauma. The person filing the claim must have proof of specific damages due to the incident, such as mental anguish or emotional distress. Common damages claimed in bystander lawsuits are post-traumatic stress disorder, nightmares, extreme anxiety, depression, insomnia and suicidal thoughts. The plaintiff might also have economic damages, such as lost wages from having to take mental health leave from work.

Proof during a bystander claim in Texas often comes in the form of testimony from relatives and friends who have seen firsthand how the accident impacted or traumatized the plaintiff. The plaintiff may also hire mental health experts to testify as to how an accident such as the one in question would reasonably affect an eyewitness or loved one in the same situation. An injury attorney can help with a bystander claim at the same time or separate from a personal injury or wrongful death claim in Texas.

Posted by admin at 6:44 pm

A Quick Guide to Calculating Pain and Suffering

Wednesday, February 26, 2020

A fair settlement can provide your family with compensation to pay for medical bills, make up for lost wages due to missed work, and other expenses associated with daily living. Many personal injury claims also include what’s known as “pain and suffering” costs. These are noneconomic damages, such as physical pain an injury caused or emotional distress from the accident. If your family qualifies for pain and suffering damages, you or your lawyer will have to prove eligibility and calculate a fair amount of compensation to demand from the defendant. A lawyer in Texas can help you with the difficult task of calculating a reasonable pain and suffering award.

paperwork on table

Pain and Suffering Defined

Lawyers use the term “general damages” to define any intangible losses, like pain and suffering, as part of an injury settlement.

They contrast specific damages, or damages particular to a unique plaintiff, such as his or her precise medical expenses and lost wages. General damages can refer to many different mental, emotional or psychological losses.

  • Physical pain and discomfort
  • Chronic pain
  • Stiffness and immobility
  • Permanent scarring or disfigurement
  • Loss of limb
  • Permanent disabilities
  • Emotional distress
  • Mental anguish
  • Anxiety, stress or depression
  • Embarrassment or humiliation
  • Lost enjoyment of life
  • Lost quality of life
  • Loss of consortium or household services

While you will have medical evidence and financial statements to support the value of your specific damages, it can be more difficult to quantify your pain and suffering. Luckily, those in the civil justice system have worked out a way to calculate pain and suffering damages to result in just compensation for injured parties.The two most common are the multiplier method and the per diem approach.

The Multiplier Method

The most frequently used of the two methods is the multiplier method. Using this method, a jury will start with the total value of the plaintiff’s calculated economic (specific) damages, then multiply it by a suitable number according to the circumstances of the case. Jurors will vote on a multiplier between 1.5 and 5 to represent the level of the plaintiff’s pain and suffering. While a moderate injury might receive a multiplier of two or three, for example, more severe, debilitating, traumatic or painful injuries would receive higher multipliers, such as four or five.

For instance, if you lost a limb in a traumatic workplace accident, a jury might assign your case a multiplier of 4.5 to calculate pain and suffering. If the combined value of your medical bills, lost wages, legal fees, travel expenses, property repairs, disability expenses and other out-of-pocket costs was $500,000, the jury would multiply $500,000 by 4.5 for a total pain and suffering award of $2,250,000. The only time the courts will cap pain and suffering damages in Texas is during medical malpractice cases, where the maximum award is $250,000.

The “Per Diem” Calculation

Less common is the “per diem” method of calculating pain and suffering. This process gets its name from the Latin phrase meaning “each day.” Rather than summarizing your general damages with one lump sum, the per diem approach works by demanding a certain dollar amount for every day you experience pain as a result of your accident.

Juries more commonly apply the per diem method to short-term injuries with clear recovery timelines versus long-term injuries. The per diem approach might not be appropriate for a long-term or permanent injury. If a jury does use the per diem approach, the jurors will come up with an appropriate dollar amount to assign per day of the plaintiff’s injury recovery. Typically, this dollar amount will match the plaintiff’s daily working wage. Then, the jury will multiply this amount by the number of days the victim will foreseeably experience pain and suffering from the injury or accident.

Say, for example, you were involved in a car accident and experienced a fractured arm as a result. You wore a cast for six weeks and took pain pills each day to alleviate your suffering. Even after your cast is off, you continue to experience pain for another month, for a total of 75 days of suffering. Say you make $35,000 a year—approximately $95 per day. Your per diem settlement would be around $7,2000.

What Is Your Case Worth?

 Catastrophic injuries are generally worth more than minor injuries in Texas. If you or a loved one has life-changing or permanent personal injuries, your pain and suffering damages may be higher than those of a victim of a minor accident. Wrongful death claims can also involve higher multipliers and compensatory awards. A jury may choose to use the multiplier method, per diem method or no method at all to calculate a pain and suffering award. Although it is possible to seek compensation solely for pain and suffering in Texas, most personal injury claims combine a pain and suffering demand with economic damages as well. This can lead to maximum compensation for the full extent of your damages after a preventable accident.

Have You Been Injured in an Accident?

If you’ve been injured as a result of someone else’s negligence, you may be wondering about the recourse for the parties responsible or wondering how to pay for your medical bills. The Attorneys at Aaron Herbert are skilled at negotiating settlements that are fair, given the extent of your pain and suffering. To start your personal injury claim today, contact our office for a free case evaluation. We offer our services on a contingency-fee basis, so there’s no risk to you.

Posted by admin at 10:44 pm

Texas Negligence Laws

Sunday, February 23, 2020

Personal injury law hinges on the legal concept of negligence, or a failure to meet a certain duty of care for a given situation. Every state has unique laws regarding negligence, and Texans should know their state’s negligence laws. Plaintiffs who attempt to file lawsuits without a firm understanding of their states’ negligence laws could end up paying legal fees for a lost case or even face countersuits from defendants.

Proving negligence remains the same regardless of a state’s negligence laws. A plaintiff must be able to prove duty, breach, causation, and actual harm to succeed in a personal injury claim, but varying negligence laws in different states will have a drastic impact on the results of their lawsuits. Different negligence statutes will play out differently in court, and Texas follows a modified comparative negligence law. Learn all of Texas’s negligence laws for a better understanding of your claim.

woman touching back neck in pain

What Are the 5 Elements of Negligence?

In the civil justice system, the burden of proving the case rests on the plaintiff, not the defendant. It is up to the injured party to prove that his or her version of events is more likely to be true than not true based on a preponderance of evidence. Only then will a judge or jury award compensation to the plaintiff. Five standard elements make up the required burden of proof in most personal injury cases in Texas and throughout the country.

  1. Duty of care owed. The defendant had a legal duty to behave or not behave in some way toward the plaintiff. For example, a driver that crashed into you will have had the duties to pay attention to the road and obey traffic laws.
  2. Duty of care breached. The defendant failed to exercise reasonable care, breaching his or her duties to the plaintiff. For example, an at-fault driver might breach his or her duties by driving drunk.
  3. Cause in fact. The defendant’s actions or misbehaviors must be the actual cause of the accident and injuries in question. In other words, you would not have your injuries or damages were it not for the defendant’s breach of duty of care.
  4. Proximate cause. A reasonable and prudent person in the same circumstances would have known the breach of duty could lead to injuries. For example, a reasonable person recognizes the dangers of drinking and driving.
  5. Damages suffered. The defendant’s actions caused specific and actual damages. The Texas civil justice system will only reimburse you for damages if you have compensable losses from the accident. These may include hospital bills, lost wages, and pain and suffering.

If you need assistance proving your claim, a personal injury attorney can help you find and present evidence to support all five necessary elements in Texas. Note: not every personal injury case requires all five elements. Only cases based on negligence will require all five. Some cases, such as strict product liability claims or strict dog bite claims, do not require proof of negligence or a breach of duty of care to obtain compensation. Discuss your type of case and the burden of proof with a lawyer for specific information about your situation.

How Can I Prove Negligence in a Case?

In Texas, the civil courts require a plaintiff’s side of the case to prove in a clear and convincing way that the defendant’s negligence, recklessness, intent to harm or breach of duty caused the damages in question. You will need proof of a breach of duty that goes beyond hearsay or just he-said, she-said. Admissible evidence during a personal injury claim in Texas can take many different forms.

  • Image-based evidence. Photographs and videos of the accident can serve as indisputable proof during a claim. Take photos of your accident, request copies of official police photographs and obtain any available surveillance camera footage.
  • Official reports. Copies of accident reports from police officers, employers, store managers, business owners, property owners and others could help fill in the blanks and create a clear picture of what happened.
  • Testimonies or statements. Sworn statements by eyewitnesses and subject-matter experts can help explain things to a jury, such as the defendant’s reasonable duties of care for the situation.

The main evidence categories are real, demonstrative, documentary and testimonial. Physical, photographic, illustrative and verbal evidence could all help prove your injury claim. Work with an attorney to preserve key evidence from the start. A lawyer can make phone calls to preserve evidence such as closed-circuit television footage or maintenance logs. A lawyer can also strengthen your case with actions such as hiring experts to act as key witnesses, hiring investigators, working with accident reconstructionists and collecting eyewitness statements.

Understanding Modified Comparative Negligence

In a typical personal injury case, the plaintiff must prove the defendant was negligent, and then prove the defendant’s negligence directly resulted in measurable, tangible losses to the plaintiff. Plaintiffs can still recover damages even if they are partly to blame for their damages, under a comparative negligence law. For example, a plaintiff could sue a distracted driver who caused an accident while texting behind the wheel, but the plaintiff will likely absorb a percentage of fault for the accident if the plaintiff was speeding or otherwise negligent at the time.

Under a pure contributory negligence system, the plaintiff in the previous example would not be eligible for collecting damages, even if he or she is only 1% at fault. Under a pure comparative negligence system, the plaintiff can still collect damages even if he or she was 99% at fault. The plaintiff simply loses a percentage of the case award or settlement equal to his or her percentage of fault. The Texas modified comparative negligence system only allows plaintiffs to recover damages if they are 51% or less at fault for their damages. Once a plaintiff reaches 52%, he or she may not recover damages.

The Texas system provides a healthy balance because it protects the rights of plaintiffs who unjustly suffer damages from negligence while simultaneously discouraging frivolous or risky lawsuits. A plaintiff is far less likely to file a lawsuit if the plaintiff knows he or she is more than partially responsible for the damages. Taking such a risk would also open the plaintiff up to a countersuit from the defendant. A defendant will have justification to file a counter suit if a jury decides a Texas plaintiff is 52% or more at fault.

How Does This Law Affect Compensation?

A plaintiff found partially at fault for claimed damages in a personal injury case will lose a portion of the settlement or case award equal to his or her level of fault. For example, a plaintiff filing a lawsuit claiming $100,000 in damages absorbs 10% of the fault for the incident. He or she would then lose 10% of the case award for a total of $90,000. However, if the plaintiff absorbs 52% or more fault for the accident, he or she would not receive anything. The plaintiff would then have to pay legal fees to his or her attorney for the lost case and face possible retaliatory legal action from the original defendant.

If you are considering a personal injury lawsuit in Texas, it’s important to meet with an experienced personal injury attorney to vet your case before attempting to file your complaint. A good attorney will investigate your claim to make sure there is no room for you to absorb fault for your damages and ensure the best chances of success in trial.

Posted by admin at 4:41 pm