Articles on Personal Injury Claims, Premises Liability & Texas Law Finding the Right Houston Automobile Accident Lawyer Automobile accidents are a serious event that can change the lives of those involved forever. On average, there are over 6 million car accidents in the United States each year. About 3 million individuals sustain injuries from auto accidents each year. Many of these injuries are permanent, and alter the course of an individual’s life. Innocent people can be injured and even killed as the result of someone else’s poor judgment on the road. For this reason, it’s important to know how to find the best Houston automobile accident lawyer to help victims receive the compensation owed to them. Use these guidelines when selecting an attorney to handle your car accident case. Find a Specialist - Lawyers are not one-size- fits- all commodities. Each attorney has their own area of expertise. For example, some lawyers have experience handling maritime cases while others focus on representing those seeking medical malpractice claims. Therefore, it’s necessary to find an attorney whose work is concentrated around auto accident cases. A car accident lawyer will understand the factors surrounding your case, and will know how to best approach your trial. Schedule a Consultation - An important part of selecting a lawyer is finding somebody who is on the same page as you. If you are the victim of an auto accident, you will have your own special set of needs that must be met. In order to ensure your needs are met, you want to schedule a consultation with an attorney to determine if they understand your requirements. The best fit for you is someone who understands your special set of circumstances and who will fight endlessly to meet your needs. Experience is Key - Court cases are often complex affairs with an array of factors surrounding them. For an inexperienced lawyer, this can be an overwhelming occurrence. Hence, you must find an experienced Houston automobile accident lawyer to expertly handle your case. Experienced attorneys are better suited to win in the courtroom because they have dealt with a variety of opponents with different defenses. In other words, an experienced lawyer has the knowledge to combat any opposing argument that comes their way. Goldapp-Rodriguez, P.C. If you are the victim of an automobile accident, you are entitled to damages from the responsible party. Goldapp-Rodriguez, P.C is a Houston based law firm specializing in car accident cases. They have the courtroom experience you need from a Houston automobile accident lawyer. The legal experts at Goldapp-Rodriguez will work diligently to ensure your rights are upheld, and they will make sure you receive the compensation you deserve. For more information on their legal services, contact Goldapp-Rodriguez or call today at 1-800-865-0653. Workplace Injuries Work place injuries happen on a daily basis, ranging from a minor muscle strain to
catastrophic injuries and death. They can happen due to the victim’s own fault, the fault of a co-worker, a defect in a machine, or the failure of an entire system. Headlines remind us of the spectacular failures, such as the collapse of a tunnel, an explosion at a refinery, or a fire at a factory. If you have been injured on the job, you need to know your rights and benefits. In many cases, the victim or the victim’s loved ones can look to more than one source for financial relief or compensation. The following is a summary of remedies that might apply in various work place situations. I. WORKERS COMPENSATION CASES - MOST PEOPLE GO IT ALONE On January 1,1991, Workers Compensation law in Texas changed drastically. The intent behind the new law was to force the lawyers out of the system. They accomplished this in two ways: First, they made the rules of procedure so tight that there was little room to argue. (The idea being that if there is no room for argument, there is no need for either side to hire a lawyer). Secondly, they took away lump sum settlements, thereby taking the contingent fee away from the attorney. Whereas in the past the attorney could collect 25% of the lump sum settlement, under today’s law, the attorney can only collect an hourly fee and that fee is paid out of the injured worker’s weekly benefits, not by the insurance company. Not too many injured workers are willing to sacrifice their benefit check in order to retain a lawyer. On the other hand, the hourly fees a lawyer can collect are too small to make workers compensation representation profitable. As a result, most injured workers do not retain an attorney to help them with their workers compensation claim. Workers Compensation Benefits: TIBS, IIBS, and SIBS The injured worker can collect Temporary Income Benefits (TIBS) until his doctor certifies that he has reached Maximum Medical Improvement (MMI), or for two years, whichever is less. After this, the worker is eligible for Impairment Income Benefits, (IIBS) which is equal to three times the percentage of impairment assigned to him by his doctor. For example, if the doctor reports that the worker has a whole body impairment of 10%, he will receive 30 weeks (3 x 10%) of benefits. If the worker receives an impairment rating of 15% or greater, he is eligible for Supplemental Income Benefits (SIBS). II. THIRD PARTY CLAIMS - YOU MAY NEED A LAWYER If the worker is injured through his own negligence, or the negligence of a co-worker who works for the same company, the claim is strictly a workers compensation claim and must proceed under the tight rules of workers compensation law as outlined above. However, if the worker is injured through the negligence of a third party, then he really has two claims: a workers compensation claim and a general negligence claim. A typical scenario is when a person is driving a vehicle while in the course and scope of his employment and gets injured when another driver runs a stop sign. Another scenario is when a person gets injured while working alongside an employee of another company.
This can happen at a construction site where, for example, a person working for a plumbing company is injured through the negligence of a person working for an electrical company. In these situations the worker has a claim under the workers compensation insurance and a claim for negligence against the at-fault person (the driver who ran the stop sign, or the employee of the electrical company). In a third party claim, the workers compensation insurance company will pay for the medical treatment and for lost income. However, it can and does recover these expenses out of the third party settlement. This is because workers compensation law gives the workers compensation insurance company a lien against the third party claim. An injured worker involved in a third party claim should consult with an attorney about handling the negligence claim and the workers compensation lien. At Goldapp-Rodriguez, a fair percentage of our cases involve workers compensation liens. We are usually able to settle the negligence claim, pay the workers compensation lien at a 1/3 reduction, and retain a bigger portion of the third party settlement money for our client. III. NON-SUBSCRIBER CASES - YOU SHOULD DEFINITELY CONSULT WITH A LAWYER What is a non-subscriber case: A non-subscriber case occurs when a worker is injured while working for a company that does not provide workers compensation insurance. In Texas, employers are not required to buy workers compensation insurance. In order to encourage employers to carry workers compensation insurance, the law provides certain incentives. The biggest incentive is that an employer who buys compensation insurance is immune from a negligence claim. A worker who is injured through the negligence of a co-worker, or even from the negligence of the boss himself, cannot sue the employer for negligence. His only remedy is to file a workers compensation claim. On the other hand, there are certain risks to the employer who chooses not to buy compensation insurance - he can be sued for negligence. Most importantly, the law in this situation makes it extremely easy for the injured worker to prove negligence. In ordinary negligence cases, the Plaintiff must prove that the at-fault person was at least a fraction over 50% negligent in order to win. Even at that, the Plaintiff’s award is reduced by the amount of negligence attributed to him. This is known as contributory negligence. For example, if the jury awards the plaintiff $100,000.00 but finds that he was 25% at fault, he recovers only $75,000.00. In a non-subscriber case, all the Plaintiff has to do to win is prove that the other person was only 1% at fault. This is a very small burden of proof to meet and makes the Plaintiff’s case very winnable. Even better, the Plaintiff’s negligence is not counted against him. Therefore, even if the jury finds that the Plaintiff was 99% at fault in causing his injury, he gets 100% of the award as long as the employee or a coemployee is found to be 1% at fault. ARBITRATION: Many companies have chosen to buy private plans instead of becoming worker’s
compensation subscribers. These plans provide a schedule of benefits and rules of procedure to follow in the event of an injury. Most of these plans take away the employees’ right to a trial by jury and require that any disputes be resolved through arbitration. The important thing to remember is that the negligence rules remain the same - you still only have to show 1% fault on the employer or co-employee. The attorneys here at Goldapp-Rodriguez have had good success with these cases even when the plan forces us to use an arbitrator instead of a judge and jury.
The Texas Automobile Insurance Policy, An Overview Texas law requires that anyone driving on a public street be able to demonstrate financial responsibility. This can be done either by posting a bond with the state or by purchasing an automobile insurance policy. Most people purchase a policy. The Texas Safety Responsibility Act dictates that we carry liability coverage of at least $20,000.00 for bodily injury per person, $40,000.00 per accident, and $15,000.00 in property damage. This is typically stated as 20/40/15 and is referred to as the policy’s limits. Most people carry other coverages and many people carry higher limits. Some of the different coverages that are contained in the standard auto policy are: 1. Liability - covers bodily injuries to third parties and property damage to other’s property caused by the negligence of the insured driver 2 . Collision - covers damage done to the insured’s vehicle, regardless of fault 3 . Personal Injury Protection (PIP) - covers injuries to the occupants of the insured vehicle 4 . Uninsured Motorist (UM) - covers the insured for injuries and property damage caused by an uninsured driver 5 . Under-insured Motorist (UIM) - covers the insured and his occupants for injuries and property damage that are in excess of the limits of the at-fault driver’s liability coverage 6 . Medical Payments (Med pay) - Similar to PIP except for one big difference- medpay benefits must be paid back to the insurance company if a recovery is made from the third party. 7 . Coverage other than collision - this used to be called Comprehensive coverage covers property damage to your vehicle caused by incidental causes such as when an object on the road is thrown and causes damage to your vehicle 8. Rental Reimbursement - covers the insured in the event a short-term replacement vehicle is required
SPECIFIC COVERAGES OF THE TEXAS AUTOMOBILE INSURANCE POLICY A Detailed Look LIABILITY If you are involved in an accident that is the other driver’s fault, it is the other driver’s liability coverage, and only his liability coverage that covers your injuries and property damage. (NOTE: If you are the passenger of the at-fault driver, then you can recover from his liability coverage as well as his PIP). Tort law allows you to make a claim for compensation to recover your medical expenses and the cost of any medical equipment made necessary by your injuries. In addition, you can be compensated for lost wages, loss of wage-earning capacity, impairment, disfigurement, future medical needs, pain, suffering and mental anguish. You cannot be compensated, however, for your attorney fees. This is available only in contract cases and other special actions, but not in tort law. This is why attorneys that handle personal injury cases do not charge an hourly fee nor a retainer. They handle these cases on what is called a “contingency”. In other words, whether or not the attorney gets paid for his work is contingent upon any recovery from the third party. This means that the attorney gets paid a percentage of any amount recovered. If there is no recovery, you owe the attorney nothing for his time and expenses. Most attorneys receive 33 and 1/3 percent of the gross recovery. In some cases, the fee is 40%. Some attorneys’ contracts even call for a fee of 50% if the case must be appealed to a higher court. At Goldapp-Rodriguez, P.C., our contract for an auto case is always a flat 33 and 1/3%. Why hire an attorney if you cannot recover attorney fees? The short answer is because you net more money, even after allowing for the attorney’s fee. It is important to remember that the insurance company is represented by a trained professional to handle their end of the claim. The adjuster’s loyalty is to his insurance company not to you. While he does owe his insured (the guy who ran into you and caused your injuries) a duty to fairly and reasonably resolve the claim, it is a duty owed to his insured, not to you. Remember that his insured’s interests are adverse to yours. In most cases the at fault party tries to minimize his fault and minimize your injuries when talking to his adjuster. He will usually say things such as: “I just bumped into her”, and: “she was walking around at the scene of the accident and did not look hurt to me.” I’ve seen this happen even when the property damage was severe and my client was taken from the scene by ambulance. I’ve seen cases where my client’s bumper and trunk were completely destroyed and the at fault party still claimed he was only going five miles an hour when he hit her. Lastly, the insurance adjuster’s job is to save his company as much money as possible on each claim. He is not your agent and he does not owe you any duty of good faith and fair dealing. Protecting your rights and getting full value for your claim is a job best left up to the experts. At Goldapp-Rodriguez, we have handled thousands of automobile accident cases over the years. Our staff is highly trained so that we can handle our cases efficiently and
professionally while still giving personal attention to every one of our clients. I have two goals with every one of my clients: 1. Make sure my client recovers as fully as possible from his/her injuries; and, 2. Make sure I put my client in a position to recover as much money as possible.
HELP WITH MEDICAL CARE: How can I help my clients recover as fully as possible from their injuries? After all, I am not a doctor. To begin with, I review medical records on a daily basis. Part of my job is to summarize medical records, understand my client’s injuries and treatments, and discuss them knowledgeably with the insurance adjuster. I have probably read more operative reports and diagnostic reports dealing with injuries than your average family doctor. I have also seen more types of injuries from trauma than most family doctors. These range from broken bones to closed head injuries, to torn tendons. This insight enables me to guide my clients through the maze of diagnostic and treatment procedures and help them get the best medical care possible. For example, one of my clients had suffered some cuts to her face and had some pieces of glass embedded in her forehead. She had the glass removed at the emergency room on the day of the accident. However, a year after the accident, she told me that her forehead still hurt in the area where the glass pieces had been removed and she could feel a bump there. I advised her to go back to her PCP and tell him what she had told me. She did in fact go back to her PCP but after examining her, he told her that there was nothing wrong with her and that this sort of pain was normal and would resolve with time. When she relayed this to me, I told her that it was not normal to still have pain there a year after the accident and that I suspected she still had glass under the skin of her forehead. I recommended her to a plastic surgeon who immediately determined that she had pieced of glass under her skin and removed them. I can also help in my client’s medical care because of my familiarity with different medical specialists and diagnostic companies. Many times my clients do not have health insurance and are not able to pay for medical care. I am usually able to find a doctor who will agree to treat without my client having to pay at the time of service. Instead, the doctor will agree to receive payment after the case is settled. Sometimes, it is necessary for me to pay for my client’s surgery or other necessary medical treatment.
HELP IN MAXIMIZING MONETARY RECOVERY: Making sure that my client receives the full value for his or her claim requires a full understanding of both sides of the equation - the income side and the outgo side. In other words, I rely on my knowledge and experience to not only get the highest offer from the adjuster, but also to make sure my client gets to keep as much of that money as
possible. Over the years, I have learned to document my client’s damages so that an adjuster or a jury can easily understand and appreciate the full extent of these damages. The client’s damages must follow a logical trail of a quest for relief from pain, not a quest for a jury recovery. I have also learned how to reduce expenses by knowing how to handle liens and subrogation claims. Here at Goldapp-Rodriguez, we deal on a daily basis with subrogation claims, ERISA claims, worker’s compensation liens, hospital liens, as well as medicare and medicaid liens. Because we know that every dollar a subrogation claim or lien gets reduced is another dollar directly into our client’s pocket, we put much time and effort into this part of our cases. We have been very successful in reducing these claims and paying only what is fair, reasonable, and clearly related to the injuries received in the particular accident.
OTHER TIDBITS WITH REGARD TO LIABILITY COVERAGE: If you have to file a suit in a car wreck case, you cannot name the at-fault driver’s insurance company. You can only sue the at-fault driver. In trial, the rules of evidence require that the jury cannot be informed that the at-fault driver had insurance. The logic behind this rule is that a jury would be more inclined to award money to the plaintiff if they knew that the money was not coming out of an individual’s pocket, but out of a big insurance company. Therefore, the thinking goes, it would not be fair to the Defendant if the jury knew he had insurance that is responsible for paying any damages they award. Meanwhile, the defendant’s attorney will be an attorney hand-picked by his insurance company and paid for by the insurance company. In fact most insurance companies have what is referred to as “captive counsel”. These are law firms that work exclusively for the insurance company. The firm’s salaries, staff, supplies, equipment, expenses, and rents are paid by the insurance company. Unless the defendant that you sued can prove a conflict of interest, he is stuck with the attorney provided by his insurance company and cannot have any say in changing lawyers. In all of my career, I have never seen an insurance company allow an insured to have any say in picking a lawyer nor in preparing his defense. It should be noted that liability coverage includes not only the policy limits, but also the cost of defense. There is no set limit for the amount of money an insurance company will pay to defend a case. It is possible that an insurance company will refuse to settle a claim for $10,000.00 but spend $20,000.00 in attorney fees defending the claim. As a matter of fact I am seeing this happen more and more all the time. It is quite common for the Plaintiff’s lawyer to offer to settle for $5,000.00 only to have the insurance refuse the offer and spend more than that to defend it, and then pay even more in damages if the jury awards more than $5,000.00.
WHEN MORE THAN ONE LIABILITY POLICY IS AVAILABLE Can you recover damages from more than one insurance policy? Yes, if the driver of the car that caused the accident was not in his own vehicle at the time of the accident. Let’s
say you borrow your friend Joe’s car to go pick him up at the airport. If you run a stop sign and cause injuries, the injured person must first look to Joe’s policy and collect on the liability coverage. If his injuries are greater than Joe’s limits, he can then collect from the policy that covers your own vehicle. The insurance policy on the vehicle is always primary and the driver’s policy is always secondary, but both policies are available to cover the damages.
UIM and PIP: YOUR DAMAGES ARE GREATER THAN THE COVERAGE Frequently, my client’s injuries are severe and the medical expenses are greater than the at-fault driver’s policy limits. A typical scenario occurs when my client’s medical expenses amount to $50,000.00 and the at-fault driver’s insurance policy limits are $20,000.00. Assuming that there is no other liability policy that will cover (see “More than one liability Policy” above) we then look to our client’s own auto policy. If he was carrying UIM (Under-Insured Motorist Coverage), we make a claim on that policy for additional compensation. There are certain rules that must be followed, however, in order to do this successfully. The client’s company will need to see proof of the at-fault driver’s limits, complete documentation of his damages (medical records, bills, etc.), and, most importantly, his company must give our client permission to settle for the at-fault driver’s limits before our client can accept money from and release the at-fault driver from liability. This permission requirement is found in every policy and is there so that the UIM company can make certain the at-fault driver has no other assets that can be used to pay the claim other than his insurance policy. The UIM company will do an assets search of the at-fault party before they will give permission to settle for his policy limits. Can you receive benefits from more than one UIM policy and more than one PIP policy? Yes, under the following circumstances: Let’s say you are in a friend’s car, either as a passenger or a driver. Let’s say another driver runs a stop sign and causes you severe injury. In that case, you can recover the at-fault driver’s policy limits, the UIM and PIP policy limits on your friend’s policy, and the UIM and PIP policy limits on your own vehicle. Remember, the accident does not have to occur while you are in your own vehicle in order for you to recover under your UIM and PIP coverages. This is true even if you are not even in a car when you are injured. If you are injured as a pedestrian or while riding your bicycle, you can still collect from your UM, UIM, and PIP coverages. What if your damages are greater than the at-fault party’s policy limits and you do not have UIM coverage? In that instance, you have two choices: 1. Accept the policy limits and close the case forever (the at-fault driver’s insurance company will not pay its limits, or any money for that matter, unless you first sign a release absolving the at-fault driver from any further liability). In other words, you cannot accept the at-fault driver’s insurance money and still sue him. OR, 2. You can sue the at-fault driver. However, if you opt to sue, be aware that no matter how much money the jury awards you for your damages, the defendant’s insurance
company will still only pay you his policy limits and you will have to look to the defendant himself for the rest of the money the jury awarded you. Because most defendants are judgment proof (they do not have any assets you can collect to enforce a judgment) you will likely never see a penny of the amount over his limits. PIP COVERAGE: Many of my clients are reluctant to file a claim on their own insurance company. A typical complaint that I hear is: “Why should I file a claim against my own insurance company when it was the other driver’s fault?” First of all, you have no business trying to protect your insurance company. They are huge corporations whose CEO’s get millions of dollars in compensation. They are not about to lose money and you do not need to feeling sorry for them. A PIP claim, because it is not a fault-based claim, should not result in higher premiums. I have filed tens of thousands of PIP claims and I have never had a client tell me that his rates went up because of it. Lastly, why have you paid premiums for PIP coverage all these years if you do not intend to use that coverage? Unless you are fabulously wealthy, or you think the insurance company needs $2,500.00 more than you do, file the claim! If you have been sold Med Pay instead of PIP, you have been duped. This is because you must pay back the Med Pay benefits as soon as you recover from the at-fault party. In essence, these benefits are nothing but a short-term loan and the premiums you paid for this coverage amount to a steep interest rate on the loan. The only time you get to keep the Med Pay benefits is when you do not recover from the at-fault party. I strongly recommend you spend your premium dollar on PIP and avoid Med Pay. Premises Liability: a Summary of Texas Law AN OVERVIEW Injuries in stores happen on a daily basis because stores can sometimes be dangerous places. Injuries also happen in parking garages, parking lots, restaurants, apartment buildings, elevators, escalators, grocery stores, and private residences. There are hundreds, if not thousands of ways people get injured in such places. The one constant, however, is that they all come under the umbrella of premises liability law. Imagine that you are trying on a pair of pants in a department store dressing room, and the door falls off its hinges and crashes on top of you, causing you severe injury. Or, imagine that you are taking a shower in the handicap room of your hotel and the shower bench suddenly collapses, throwing you to the floor and breaking your wrist. Or, that you are in a home improvement store and an employee is cutting a piece of lumber for another customer. As you walk by, a piece of lumber flies off the saw and strikes you in the head. Or, that you step in a hole in a parking lot and break your leg. Although every one of these cases is different, they all involve the duty owed to the public by a business operator or a property owner. Some other examples of premises liability cases include:
Injuries in retail stores - e.g., tripping over a pallet or slipping on water from a leaky display case; being hit by falling merchandise; injury through the negligent acts of a store employee
Injuries in apartment complexes - e.g., broken stairs; malfunctioning equipment; swimming pool accidents; falling gates; falling balconies; faulty railings
Injuries in office buildings - e.g., faulty flooring; holes in the parking lot
Injuries in hotels - e. g., unsafe shower stalls; faulty security measures leading to sexual assault or murder
Injuries in parking lots or public grounds - e. g., poorly designed car stops causing tripping incidents; uncovered drain holes; broken manhole covers; poorly designed walkways; unmarked drop-offs on a sidewalk
Injuries in a residence - e.g., falling through a rotten board on a porch; trampoline injuries; faulty steps or railings; swimming pool injuries. In my 29 years as an attorney, I have handled variations of all of the above and more. My clients have suffered injuries including broken bones, torn tendons (shoulders, knees), closed head injuries (subdural hematomas, hemangiomas), ruptured spleens, Reflex Sympathetic Dystrophy (also known as RSD or complex regional pain syndrome), herniated discs, and muscle sprains. Usually, when my client walks through my door for the initial interview, there is no question there has been an injury. The only question is whether the store can be held responsible. To that end, I have written this summary of Texas premises liability law. I hope you find the information useful as it applies to you.
EXPLANATION OF YOUR RIGHTS AND THE DUTIES OWED TO YOU You Must First Determine the Injured Person’s Legal Status on the Property In determining whether you have a valid case, you first need to determine your status on the property. Texas premises liability law recognizes three different classes of people who enter upon property: Trespasser - enters property with no legal authority and without permission nor invitation. The property owner’s duty of care with regard to a trespasser is only to avoid causing injury by intentional or willful conduct.
Licensee - enters property with the owner’s permission (either express or implied) but not by invitation. An example would be a gas company employee who enters the premises to read the gas meter. The owner’s duty of care with regard to a licensee is a duty not to cause injury by willful or wanton conduct or by gross negligence. He must warn the licensee of hidden dangers that are known to him but the owner must have actual knowledge of these dangers.
Invitee - This is the status of my typical client. An invitee is one who enters the property with the owner’s knowledge or consent and does so for the purpose for which the premises are held open to the public or for a purpose connected with the business of the owner that results in or may result in their mutual benefit. In other words, an invitee is typically a customer, tenant, or user of the facility. The owner of the premises in such a case must use ordinary care to make the premises reasonably safe for the use of the invitee. He need not have actual knowledge that a dangerous condition exists on his premises. It is sufficient for the plaintiff to show that a reasonable owner would have had knowledge of such a condition. As you can see, an invitee is owed the highest legal standard of care. *Please note that the term “owner” as used above can mean the owner, anyone in control of the property/business, or any employee.
GETTING STARTED - PROTECTING YOUR RIGHTS Unsafe premises can cause common injuries such as whiplash or back and neck strains, but they can also cause tragic injuries or death. Immediate medical attention is necessary not only for your safety, but also to document your complaints of pain. For example, if your knee hurts but you do not seek medical attention, you have no proof that your knee hurt as a result of stepping in the hole in the parking lot. If, after putting up with the pain for two months, you finally see a doctor and he determines you need surgery, the adjuster can question why you did not seek medical attention until sixty days after the incident. Could it be you injured yourself in some other accident that happened later? If, on the other hand, the injury is not obvious but you suspect you may be hurt, it is always a good idea to go to your physician for an examination. Internal injuries can be life-threatening, and in this case, it is better to be safe than sorry. It is important to take pictures of the scene as soon as possible to document the condition which caused the injury. Quite often the dangerous condition is quickly repaired or eliminated, and there will be no way to preserve it without photos. It is also important to talk to an attorney early in the case, and certainly before giving a taped statement to an adjuster. If your injuries are serious, an attorney can preserve evidence, guide you through the medical treatment process, hire the appropriate experts, and document your damages for settlement purposes, or for a jury to consider.
Proving up Your Case In order to prevail on the law, a plaintiff in a premises liability case has to prove (1) that the owner/operator of the premises had actual or constructive knowledge of a condition that posed an unreasonable risk of harm, (2) that the owner/operator did not exercise reasonable care to reduce or to eliminate the risk, (3) and that the owner/operator’s failure to use such care caused the plaintiff’s injuries. In our pleadings we describe the condition that posed an unreasonable risk of harm, allege that the person in control of the property knew of this dangerous condition or, in the exercise of reasonable care, should have known of the condition, and allege factors which will show that the owner/manager failed to warn of the condition, or failed to isolate the danger, such as by putting up rope, tape, or a barricade. Finally, we describe the plaintiff’s injuries. By far the toughest part of any case is proving that the owner/operator knew or should have known of the existence of the condition. This is especially true when the dangerous condition is a substance that has been spilled on the floor. It is almost impossible to prove that the manager of the store or his employees knew about this condition or that a reasonable person should have known about it. This is much easier to prove, on the other hand, when the dangerous condition involves a leaky refrigerated case that has spilled water on the floor for so long it has left permanent stains on the floor. Or, when the condition involves rusty, wobbly banisters, broken stairs, a broken cover on a floor drain, a broken gate or railing, or an unsafe design. Unsafe design cases involve such things as car stops in parking lots that are not painted a contrasting color, a side walk that drops off but has no red or yellow line to indicate the drop-off, or a dressing room door where the hinges were placed in such a way they were destined to fail. Many times it is necessary to hire an expert in a negligent design case in order to educate the jury on what a safe design should be in the given application and why the defendant’s design in this particular case was dangerous and unsafe. The expert can be a carpenter who will show the jury why, for example, screwing hinges of a door into the edge of a plywood wall instead of the face of the plywood, will eventually cause the screws to back out and the door to fall on a customer. Architects and engineers are also quite often used as experts to testify on what constitutes a safe design. Parking lots, for example, should have car stops painted a contrasting color and the aisles between the parked cars should be free from obstruction. Sometimes, a parking lot owner tries to save money by designing the lot in such a manner that two cars can use just one stop. This results in every other aisle having an obstruction, just waiting to trip an unsuspecting customer. Quite often, the customer will trip on one car stop and land on another. This can cause injuries such as torn tendons, broken ribs, a ruptured spleen, punctured lung, or other internal injuries.
CONTRIBUTORY NEGLIGENCE - PUTTING IT BACK ON YOU
Texas is a comparative negligence state, which means that the jury will be asked to assess whether each of the parties (Plaintiff and Defendant) was negligent. If they find that both parties were negligent, they then must apportion the negligence. In other words they must assign a percentage of negligence to each party and it must add up to 100%. The amount the jury awards is then reduced by the percentage of negligence the jury attributes to the Plaintiff. For example, if the jury finds the plaintiff was 10% at fault and it awards $100,000.00, the Plaintiff collects $90,000.00. If, however, the jury finds the Plaintiff more than 50% negligent, the Plaintiff gets nothing. With so much at stake, it is easy to understand why the defense always argues that the Plaintiff was largely responsible for her own injury. They will argue that the hole was open and obvious, and if the Plaintiff would have been watching her step, she would have noticed the hole and would have stepped around it. To the defense it is always a case of not watching where you are going.
SUMMARY Premises liability cases are some of the most difficult cases to make. Simply slipping on spilled water is usually not a sustainable case. Neither is tripping on an uneven sidewalk. (One does not expect outdoor walkways to be as smooth as indoor surfaces, and there is a bigger expectation on the Plaintiff to watch his step). A good rule of thumb as to what makes a good case for the Plaintiff: the more dangerous the condition and the more outrageous the conduct on the part of the Defendant, the better the case. Knowledge of the law, good facts, and hard work on the part of your attorney will usually result in a good outcome. I wish you the best of luck in your case and if you have any questions or wish to comment, please do not hesitate to contact me. Robert Rodriguez, Attorney Texas Bar Card Number: 17148475