Distracted Drivers Hurt People

Texas has taken a stand against Texting while Driving

Car and Trucking accidents caused by distracted drivers are in the media every day.  Those accidents that make the news are often the ones where people have died.  Texas’ new law will no doubt save lives.  If you have questions about the law, have discussed it in this post.

Following this one law it not enough.  There will still be many accidents caused by distracted driving.  NHTSA has a entire page dedicated to distracted driving.

Many of our clients, even before cell phones were victims of distracted drivers.  For whatever reasons, driving is the last thing on the mind of many drivers.  They are thinking about work, what they will eat when they get home, the fact that they are running late, etc.  In our fast paced world, it has become necessary for us to multitask.  That’s great, except when you are driving.

When things go bad while you are driving, those bad things happen fast. Failure to focus on your driving can cause the bad thing – ” I didn’t see the stop sign” or  “I didn’t realize the cars in front of my were stopped for construction” and can affect your ability to react to someone or something else.

Think about the steps that must take from the time of the bad thing to hopefully avoiding it.

  1. The brain has to perceive the bad thing,
  2. The brain has to decide how to respond to the bad thing,
  3. Your brain has to tell you muscles what to do,
  4. The muscles have to respond,
  5. The mechanical device  (brakes, steering wheel) has to respond to the input from the muscles.

The point is a lot of things have to happen when things go bad while driving, and whether someone is hurt depends on a lot of things, but the one thing you can control is how focused you are on your driving.  If you are interested in the details, take a look at this article.

So, when you are driving, drive.  It seems like a simple and mundane task, but it is one that can kill or seriously injure you or someone else.

And in the unfortunate event you are in a car wreck or truck wreck caused by a distracted driver, please give us a call at 903)236-4990.

Board Certified Personal Injury Attorney

I am Chris Jones, and I am a Texas lawyer,  Board Certified Personal Injury Trial Law.

Texas Texting While Driving Ban Becomes Law

No more Texting and Driving in Texas!       

Governor Abbott signed the Texas ban on texting while driving into law today.  Here is an except from the law:

(b)  An operator commits an offense if the operator uses a portable wireless communication device to read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped. To be prosecuted, the behavior must be committed in the presence of or within the view of a peace officer or established by other evidence.

(c)  It is an affirmative defense to prosecution of an offense under this section that the operator used a portable wireless communication device:

(1)  in conjunction with a hands-free device, as defined by Section 545.425;

(2)  to navigate using a global positioning system or navigation system;

(3)  to report illegal activity, summon emergency help, or enter information into a software application that provides information relating to traffic and road conditions to users of the application;

(4)  to read an electronic message that the person reasonably believed concerned an emergency;

(5)  that was permanently or temporarily affixed to the vehicle to relay information in the course of the operator’s occupational duties between the operator and:

(A)  a dispatcher; or

(B)  a digital network or software application service; or

(6)  to activate a function that plays music.

You can read the complete bill on the Texas Legislature Online.

The criminal penalties under the law are not insignificant:

(e)  An offense under this section is a misdemeanor punishable by a fine of at least $25 and not more than $99 unless it is shown on the trial of the offense that the defendant has been previously convicted at least one time of an offense under this section, in which event the offense is punishable by a fine of at least $100 and not more than $200.

(f)  Notwithstanding Subsection (e), an offense under this section is a Class A misdemeanor punishable by a fine not to exceed $4,000 and confinement in jail for a term not to exceed one year if it is shown on the trial of the offense that the defendant caused the death or serious bodily injury of another person.

(g)  If conduct constituting an offense under this section also constitutes an offense under any other law, the person may be prosecuted under this section, the other law, or both.

Violation of the law should also constitute negligence per se in a negligence case involving a car or trucking accident.  This means the judge will instruct the jury that the failure to comply with this law is negligence in itself.

Please also see our post, Distracted Drivers Hurt People.

East Texas Personal Injury Attorney

We have experience with car and truck accidents and if you need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris Jones, Board Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Five Rules in Texas Defining Relationship Between Texas Insurance Contract Claims and Insurance Code Claims

Relationship Between Texas Insurance Contract Claims and Insurance Code Claims

The relationship between insurance contract claims and Insurance Code claims in USAA Texas Lloyds Co. v.  Menchaca.  The case arose from jury findings that,  although USAA did not fail to comply with the terms of the insurance policy with regard to a claim, USAA did engage in various unfair or deceptive practices, including refusal “to pay a claim without conducting a reasonable investigation with respect to” that claim.  The jury then awarded damages  in the amount of the difference between the amount USAA should have paid  and the amount that was actually paid.

Thus, the question arose as to whether an insured can recover damages against their insurance company even though the insurance company did not fail to comply with its contractual obligations.  In answering the question the Texas Supreme Court “announced” five rules that address the relationship between contract claims under an insurance policy and tort claims under the Insurance Code:

  1. The general rule is that an insured cannot recover policy benefits as damages for an insurer’s statutory violation if the policy does not provide the insured a right to receive those benefits;
  2. an insured who establishes a right to receive benefits under the insurance policy can recover those benefits as actual damages under the Insurance Code if the insurer’s statutory violation causes the loss of the benefits;
  3.  Even if the insured cannot establish a present contractual right to policy benefits, the insured can recover benefits as actual damages under the Insurance Code if the insurer’s statutory violation caused the insured to lose that contractual right;
  4.  If an insurer’s statutory violation causes an injury independent of the loss of policy benefits, the insured may recover damages for that injury even if the policy does not grant the insured a right to benefits;and
  5. An insured cannot recover any damages based on an insurer’s statutory violation if the insured had no right to receive benefits under the policy and sustained no injury independent of a right to benefits.

East Texas Personal Injury Attorney

We have experience with cases involving insurance claims and if you need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris Jones, Board Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

 

Airbag Recall

Takata air bag recall

Does the Takata airbag recall apply to your vehicle?  You can use NHTSA’s Recalls Lookup by VIN using your Vehicle Identification Number (VIN) to find out.  NHTSA has a  Recalls Spotlight concerning the Takata airbag recall that has additional important information concerning the recalls, including a list of affected vehicles.

If your vehicle is subject to a recall, you should  contact your dealer as soon as possible to make an appointment to get it fixed.  All recalls are serious.

Hopefully, you and your family have not been hurt because of the recalled airbags.  If you have been injured, please see our personal injury blog posts on Defective Products, Products Liability.  You should immediately obtain control of your vehicle. The defective product (in this case the vehicle and its airbags) is important evidence in a products liability case.  Do not dispose, alter, or in any way spoil the defective product as evidence if you are considering legal action.

The history of the Takata airbag defects and recalls is troubling. According to Transportation Secretary Anthony Foxx, “for years, Takata has built and sold defective products, refused to acknowledge the defect, and failed to provide full information to NHTSA, its customers, or the public.”  He also said “the result of that delay and denial has harmed scores of consumers and caused the largest, most complex safety recall in history…”  Please refer to the Timeline of NHTSA Actions if you are interested in the history of the recalls.

East Texas Products Liability Lawyer

Chris Jones,is Board Certified Personal Injury Trial Law and has vast experience in product liability and vehicle crashworthiness cases. If you or a loved one are a victim of the defective airbags, please do not delay in giving us call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

 

Burn Injury Lawyer

burn injuriesBURN INJURIES

Burns are a major cause of suffering and death in the United States.

According to the American Burn Association there are over 486,000 burn injuries each year requiring medical treatment. American Burn Association Burn Incidence Fact Sheet 2016. 43%  of the burns are caused by Fire/Flame, 34% by Scalds, 9% by Contact, 4% by Electrical, 3% by Chemical and 7%by other causes.  73% of the injuries occur at home, 8% in the workplace, 5% on streets and highways,  5% in recreational and sport activities and  9% Other at other locations. Approximately 30,000 of these burn injuries require treatment in hospital burn centers.

Many burn injuries are caused by unreasonably dangerous and defective products.  If you or a loved one has suffered burns as a result of a product, please see our post regarding products liability. Motor vehicle and trucking accidents can involve fires. Part of a vehicle being “crashworthy” includes avoiding post collision fuel fed fires.

Electrical accidents  often result in very serious burns.  Many of these accidents involve working around power lines or work in the oilfield. improper packaging and transport of flammable gases and liquids can cause other wise avoidable fires and burn injuries. The improper use of flammable material in clothing has caused a number of burn injuries.  This list can go on and on…

The pain and suffering, disfigurement and physical impairment caused by burns and other personal injury damages are often horrendous.  These damages should be documented from the beginning.

If you or one of your family members has been the victim of these horrible injuries, please do not delay in giving us call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Chris Jones of Longview, Texas is Board Certified in Personal Injury Trial Law  is an experienced burn injury lawyer and passionate in the representation of those suffering from burn injuries as a result of someone’s negligence or dangerous and defective products.  Mr. Jones is rated as a preeminent Lawyer by his peers.

Overtime Regulations,Texas Employment Lawyer

Texas Employment Lawyertime clock

Overtime Regulations

The Department of Labor’s final rule updating the overtime regulations was announced on May 18, 2016.  It will automatically extend overtime pay protections to millions of  workers within the first year of implementation.  The effective date of the final rule was December 1, 2016.

However, on Nov. 22 U.S. Judge Amos Mazzant in the Eastern District of Texas issued a preliminary-injunction blocking the rule. A notice of appeal has been filed with the Fifth U.S. Circuit Court of Appeals by Secretary of Labor Thomas Peretz and representatives of the U.S. Department of Labor aiming to lift the temporary injunction against overtime changes.

Key Provisions of the Final Rule

The Final Rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt. Specifically, the Final Rule:

  1. Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually for a full-year worker);
  2. Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally ($134,004); and
  3. Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

Additionally, the Final Rule amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.

The Wage and Hour Division of the Department of Labor has published a list of Questions and Answers from the General Information Overtime Webinars to help in understanding the new regulations.

You may also find useful information on these posts; Wage and Hour Law, Employment Discrimination, Sexual Abuse, Texas Employment and Non Compete Agreements, and EEOC Charge of Discrimination, Defending and Resolving.

Board Certified Labor and Employment Lawyer

East Texas Attorney, Michelle Jones is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and has over 27 years experience helping employers.  If you are an employer in need of a Labor and Employment Lawyer, please do not hesitate to call Michelle at 903-236-4990 or toll-free at 888-236-4878.

Head and Brain Injury Lawyer

Model of Human Brain

Experienced head and brain injury lawyer, Chris Jones of Longview, Texas is Board Certified in Personal Injury Trial Law and passionate in the representation of those suffering from head or brain injuries as a result of someone’s negligence or dangerous and defective products.  Mr. Jones is rated as a preeminent Lawyer by his peers.

Head Injury or Brain Injury

Head injuries are injuries to the head indicating damage to the skull, face, jaw or the contents of the jaw.  “Head injury” is a term which includes a “brain injury”.  “Brain injury” is a more specific term indicating damage to brain cells. Brain injuries are often referred to as an “acquired brain injury” (ABI) and ‘traumatic brain injury” (TBI). Medical records will also often refer brain injuries as a “closed head injury” (CHI) or “traumatic head injury” (THI).

One of the most difficult issues with Brain Injuries in legal claims is the often invisible nature of these injuries.  They are often undiagnosed after an accident and can be difficult to prove.  This is unfortunate, because these injuries are often the most disabling.

Signs and Symptoms

In Facts for Physicians published by the Centers for Disease Control and Prevention (“CDC”), the signs and symptoms of TBI are broken generally into four categories:

  • PHYSICAL
    • Headache
    • Nausea
    • Vomiting
    • Balance problems
    • Dizziness
    • Visual problems
    • Fatigue
    • Sensitivity to light
    • Sensitivity to noise
    • Numbness/Tingling
    • Dazed or stunned
  • COGNITIVE
    • Feeling mentally “foggy”
    • Feeling slowed down
    • Difficulty concentrating
    • Difficulty remembering
    • Forgetful of recent information or conversations
    • Confused about recent events
    • Answers questions slowly
    • Repeats questions
  • EMOTIONAL
    • Irritability
    • Sadness
    • More emotional
    • Nervousness
  • SLEEP
    •  Drowsiness
    • Sleeping less than usual
    • Sleeping more than usual
    • Trouble falling asleep

ONLINE RESOURCES FOR TRAUMATIC BRAIN INJURIES

A few of the great online resources for those with brain injuries include:

The Centers for Disease Control and Prevention offers updates on the latest research and
statistics on traumatic brain injury, along with information on educational and outreach
campaigns.

The Mayo Clinic offers basic and in-depth information into the causes and symptoms of
traumatic brain injury. Mayo Clinic

The Center of Excellence for Medical Multimedia – created by the federal Office of the
Surgeon General – offers information for soldiers suffering from traumatic brain injuries,
and helps link them to medical treatment facilities, health and wellness centers, and
civilian medical facilities.

The National Institute of Neurological Disorders and Stroke, part of the National Institutes
of Health, supports research into traumatic brain injury and other neurological disorders.

Experienced Brain Injury Lawyer

We have experience with traumatic brain injury cases, and if you or a loved one has suffered a traumatic brain injury cases in an accident and need a lawyer, please do not hesitate to give East Texas Attorney, Chris Jones, Board Certified Personal Injury Trial Law, Longview, Texas a call at 903-236-4990, 888-236-4878 (toll-free) for a free initial consultation or send us a message at Contact Us.

Fatal Car Accidents, Texas Lawyer

Traffic  Fatalities

fatal crashOne cannot turn on the news without learning of another fatal car accident.  Thankfully, we are usually comforted to know that none of our family members or people we know were involved in the fatal accident.  Although it is little relief for those that have learned of a traffic fatality involving someone they know, it appears the number of fatal accidents is on the decline.

According to the National High Traffic Administration,  traffic fatalities for the first half of 2013 are projected to show a  4.2 percent decrease with 15,470 people killed in early 2013 compared to the 16,150 fatalities that were projected to have occurred in the first half of 2012.  National Center for Statistics and Analysis. (2013, October). Early Estimate of Motor Vehicle Traffic Fatalities for the First Half of 2013.(Crash•Stats Brief Statistical Summary. Report No.DOT HS 811 845). Washington, DC: National Highway Traffic Safety Administration. If you look back over the years from 1994, there has continued to be a drop in fatal accidents year by year – with 40,716 deaths in 1994 down to 32,367 in 2011.  These number are obviously still significant numbers, especially if one of the victims is your loved one.  FARS Encyclopedia: Trends.

As a personal injury liability lawyer I can not help but to attribute the reduction in deaths to the many years of trial lawyers fighting for crashworthy vehicles, airbags, safer seat belts, better warnings and instructions on vehicles, tires and child seats.

If you are one of one of those whose life has been turned upside down by a fatal accident, please feel free to review our personal injury blog and our posts Automobile Insurance Made Easy, East Texas Auto Accident Lawyer, Truck Accident LawyerMotorcycle Accident Lawyer, Documenting Personal Injury Damages and Motor Vehicle Crash, Now What?

If the accident was caused by a distracted driver, please see our posts; Distracted Drivers Hurt People and Texas Texting While Driving Ban Becomes Law. 

In cases in which governmental vehicles are involved, you may find helpful information in Governmental Tort Liability.

East Texas Personal Injury Attorney

We have experience with cases involving car and trucking accidents caused by negligent driving, and if you or one of your family members has been seriously injured or killed as a result of  a negligent driver and need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris Jones, Board Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Car and Trucking Accidents – Making an Insurance Claim

East Texas Car and Trucking Accidents

Experienced Car and Truck Accident Lawyer, Chris Jones of Longview, Texas is Board Certified in Personal Injury Trial Law and passionate in the representation of the victims of Driver Negligence.  Mr. Jones is rated as a preeminent Lawyer by his peers.Interstate 20 Auto Accident

It is very important to seek health care for your potential injuries caused by the accident.  Often, injuries are not noticed immediately after an accident because of the excitement surrounding the accident.  If you have any doubt as to whether you have been injured in a truck or car accident, you should immediately see  a health care provider.  It is also important to make sure the scene of the truck or car accident are documented.

We encourage you to seek the advice of a personal injury lawyer before attempting to handle your trucking or automobile accident claim on your own.  In Texas, the Texas Board of Legal Specialization certifies Personal Injury Trial Lawyers. Lawyers with experience handling trucking and automobile accidents should understand how to deal with the insurance company and help you avoid the potential pitfalls of handling your claim on your own.  Please remember, the insurance adjuster has been trained to handle accident claims, works for the insurance company and has experience dealing with  claims involving automobile accidents and trucking accidents on a day-to-day basis.  The less the insurance company pays out in claims, the higher the potential bottom line for the company.

Please feel free to review our personal injury blog and our posts Automobile Insurance Made Easy, East Texas Auto Accident Lawyer, Truck Accident LawyerMotorcycle Accident Lawyer, Documenting Personal Injury Damages and Motor Vehicle Crash, Now What?

In cases in which governmental vehicles are involved, you may find helpful information in Governmental Tort Liability.

East Texas Personal Injury Attorney

We have experience with cases involving car and trucking accidents caused by negligent driving, and if you or one of your family members has been seriously injured or killed as a result of  a negligent driver and need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris Jones, Board Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Safety Tips from over 27 years of Practicing Personal Injury Law

Personal Injury LawyersBuyer Beware see a lot of death, pain, suffering and horrible injuries.  The immediate goal is to obtain redress for our clients.  The ultimate goal, however, for every lawyer, should be to reduce the number of accidents, injuries and deaths so that others may avoid what our clients have suffered.

In this regard, I am sharing my list of things I’ve learned over the years to help keep me and my family  safer:

  • Keep your eyes on the road;
  • Driving while intoxicated is just plain stupid and can ruin your life and the lives of others;
  • Driving while using a smart phone to text, surf the internet, or use social media may be as bad as driving while intoxicated;
  • Do not drive or fly if you are fatigued;
  • Slow down;
  • Maintain sufficient space between your vehicle and others;
  • Before purchasing a vehicle, look at the safety data; (see Crashworthiness – Protect Yourself)
  • Wear your seatbelt;
  • Nothing good happens after midnight;
  • Use nose plugs when submerging you head in warm fresh water;
  • Use distilled water in products that force water up your nose;
  • If you drop a tire off the road, slow down before you try to correct back onto the road;
  • Vehicles are not designed for aggressive turns;
  • Read and follow the instructions, especially the warning labels;
  • Never fly into weather;
  • Always do a preflight check;
  • Never remove safety guards from equipment;
  • Read your safety manual, and follow it;
  • If you are concerned that someone doesn’t understand, they probably don’t;
  • Keep the car doors locked while driving;
  • If it can happen, assume it will;
  • Never point a gun in a direction where it is not safe to fire;
  • Never drive a vehicle in a direction in you cannot see;
  • Never rely on backup alarms alone;
  • Use lockout tagout;
  • Wear your safety equipment – hard hat, steel toe shoes, safety glasses, etc…
  • Use fall protection;
  • Better done safely than done quickly;
  • Any risk of serious injury or death that can be reduced or eliminated using means that are technologically and economically available is an unreasonable risk.

NFPA offers free safety tip sheets on a variety of fire and life safety topics.  OSHA has a number of publications that are specific to a variety of situations.

Please feel free to comment with your suggested additions to this list.

We have experience with many types of accidents, and if you have been seriously injured or have lost a loved one and need a Texas accident attorney, please do not hesitate to give East Texas Attorney, Chris Jones, Board Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Fatal Workplace Accidents and Injuries, Texas Lawyer

Workplace Accidents and Injury Statistics

Fatal work injuries in the United States dropped by approximately  7%  to 4,383 deaths in 2012 according to results from the Census of Fatal Occupational Injuries (CFOI) conducted by the U.S. Bureau of Labor Statistics.  Significantly, there were 138  deaths in the oil and gas extraction industries, a 23 percent rise in fatal injuries to workers in  2012.Fatal Occupational Injuries

Even though the number of fatalities dropped in the U.S.,work related deaths increased by over 20% to 531 deaths in Texas.  Oklahoma also saw a rise in work related deaths.  During the last 20 years, 1994 saw the highest number of work related fatalities in the US at 6,632, or approximately 35% higher than 2012.According the Texas Department of Insurance the deadliest occupation in Texas was driving heavy and tractor-trailer trucks. Texas also saw an increase in construction deaths. 2012 Texas Census of Fatal Occupational Injuries. In Texas, there was a 57 percent increase in fatal injuries for heavy and tractor-trailer,truck drivers with 121 deaths, up from 77 in 2011. There were 82 construction trade worker deaths in Texas, up from  59 incidents in 2011.

These statistics should be analyzed by all safety personnel to help them understand what is occurring in the workplace and how to avoid future accidents and injuries.

Please also refer to our personal injury blog and our posts,  Accidents in the Workplace – Fall Protection,Premises Liability, Defective Products, Products Liability,Lockout Tagout, Texas Truck Accidents,Oilfield Accidents, Injuries and Deaths,and Workplace Injury – Texas Workers Compensation – The Exclusive Remedy?

Experienced Wrongful Death Attorney

We have experience with workplace accidents and  injuries, and if you have been seriously injured or have lost a loved one in a workplace accident, please do not hesitate to give East Texas Attorney, Chris JonesBoard Certified Personal Injury Trial Law, a call at 903-236-4990, 888-236-4878 (toll-free) for a free initial consultation or send us a message at Contact Us.

Accidents in the Workplace – Fall Protection

OSHA Poster

WORKPLACE FALLS

Falls account for over 1/3 of all construction accident deaths, and 1/3 of those are falls from roofs. Fall protection is part of an employer’s duty to provide employees a safe place to work. Fall protection is required by OSHA. 29 CFR 1926.501 specifically sets forth the  fall protection requirements. According to OSHA, Employers must set up the work place to prevent employees from falling off of overhead platforms, elevated work stations or into holes in the floor and walls. OSHA requires that fall protection be provided at elevations of four feet in general industry workplaces, five feet in shipyards, six feet in the construction industry and eight feet in longshoreman operations. In addition, OSHA requires that fall protection be provided when working over dangerous equipment and machinery, regardless of the fall distance.

Forms of protection from falling required by OSHA include, but may not be limited to:

  • guardrail systems,
  • stair railings and hand rails
  • safety net systems,
  • covers,
  • toe-boards,
  • fences,
  • barricades,
  • personal fall arrest systems.

The best form of protection depends on the situation. OSHA’s Fall Prevention Campaign and OSHA’s Fall Protection are good places for employers with questions about fall protection to start their research.  To  assist  in identifying , reducing, and eliminating construction-related hazards, OSHA has also published a number of Prevention Videos.

If you are a worker that believes your employer is not following OSHA standards or that there are serious hazards,  employees can file a complaint online with OSHA or by calling 1-800-321-OSHA (6742).

We have experience with accidents involving falls and lack of fall protection, and if you have been seriously injured or have lost a loved one and need a Texas accident attorney, please do not hesitate to give East Texas Attorney, Chris Jones, Board Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Community Service

image depicting volunteersCommunity Service is Important

I know this is a legal blog or “blawg” as some like to say, but there are things as important to us as practicing law. One of those is performing community service.  Early in our careers we were members of the Downtown Dallas Kiwanis Club. We met a lot of great people and raised many for some great causes.

Michelle served as President of the Junior League of Longview. Again, that is a great organization and helps a lot of people.

Recently, however, we became involved in our children’s schools. First, Michelle as a PTA member and officer. I became involved when I agreed to serve as a member of a school board appointed committee to study the needs of the school district and make recommendations for a potential bond. While serving on this committee, I came to realize the importance of being involved in my community.  I have since become involved booster clubs,  a PAC dedicated to excellence in the schools, and the school’s Education Foundation.  Some of my best friends have been made while working together to serve others.

Others have recognized the importance of being involved as a volunteer as follows:

No matter how big and powerful government gets, and the many services it provides, it can never take the place of volunteers.
Ronald Reagan

We make a living by what we do, but we make a life by what we give.
Winston Churchill

Everybody can be great because anybody can serve. You don’t have to have a college degree to serve. You don’t have to make your subject and your verb agree to serve. You only need a heart full of grace, a soul generated by love.
Martin Luther King Jr.

Living is the art of loving. Loving is the art of caring. Caring is the art of sharing. Sharing is the art of living.
If you want to lift yourself up, lift up someone else.
Booker T. Washington

This is not an advertisement for any particular service organization or need. There are many opportunities to serve, from church to service organizations, school foundations and booster clubs. The important thing is to find your niche and get involved. The personal rewards from helping others are endless.

East Texas Attorneys Chris Jones is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and Michelle Jones is Board Certified in Labor and Employment Law .  Please contact us, Jones & Jones, Attorneys at Law, at 888-236-4878 or contact us by email.

Governmental Tort Liability, Governmental Immunity, Texas

View from under the Texas State Capitol DomeGovernmental entities are generally shielded from liability by “sovereign immunity”.  In order to hold a protected governmental entity accountable, a waiver of this immunity is necessary.  This post deals with governmental tort liability.  A separate analysis must be done for governmental contractual liability.

Texas Tort Claims Act

In Texas, Sec. 101.02 of the The Texas Tort Claims Act provides a waiver and permission to sue Texas Governmental units –  the State of Texas and all the several agencies of government that collectively constitute the government of Texas as well as the political subdivisions of Texas.  However, the waiver is not unlimited:

Sec. 101.021.  GOVERNMENTAL LIABILITY. A governmental unit in the state is liable for:

(1)  property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A)  the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B)  the employee would be personally liable to the claimant according to Texas law; and

(2)  personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

As you can see, the waiver is generally limited to the operation or use of a motor-driven vehicle or motor-driven equipment and a condition or use of tangible personal or real property.

Furthermore, Section 101.056 DISCRETIONARY POWERS preserves the governmental unit’s immunity for the performance or non-performance of an act left to the discretion of the governmental unit.

The Supreme Court of Texas has determined that “[a]n act is discretionary if it requires exercising judgment and the law does not mandate performing the act with such precision that nothing is left to discretion or judgment.” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)). Thus, “[a] distinction is drawn between the negligent formulation of policy, for which sovereign immunity is preserved, and the negligent implementation of policy, for which immunity is waived.”Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007).

If the Texas Tort Claims Act applies and provides a waiver of immunity,  Sec. 101.023 of the Act limits the amount of recovery in those situations that fall within the waiver.

The Act must be studied with an eye toward the type of governmental entity that caused the harm.  For example,  Sec. 101.051 limits the waiver with regard to school districts or junior college districts to motor vehicles.

Notice Requirements

It is very important to pay attention to the Notice requirements in Sec. 101.101 of the Act:

NOTICE. (a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:

(1)  the damage or injury claimed;

(2)  the time and place of the incident; and

(3)  the incident.

(b)  A city’s charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved.

(c)  The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged.

One cannot assume that the Notice must be sent within six months.  There may be a city charter and ordinance requiring notice in a shorter time.  

In summary, the are limited situations where the Texas Tort Claims Act waives immunity, the Act must be examined closely for a particular fact scenario and special care must be taken to satisfy the Notice requirements.

It should also be noted that there are also other limited waivers of sovereign immunity.  For example, Sec. 180.006.  SOVEREIGN OR GOVERNMENTAL IMMUNITY WAIVED FOR CERTAIN CLAIMS provides a waiver for the back pay of firefighters and police officers.

Municipalities

Municipalities fall within the Texas Tort Claims Act, but have their own considerations.  I published an entire law review article on this subject while in law school, and it is a difficult subject to limit to a post.  However, the article can be found at Comment,  “Texas Municipal Liability: An Examination of the State and Federal Causes of Action,” 40 Baylor Law Review 595, 1988.

Sec. 101.0215 of the The Texas Tort Claims Act deals specifically with the liability of municipalities. Sec. 101.0215.  LIABILITY OF A MUNICIPALITY separates the functions of a municipality into its governmental functions and its proprietary functions.  The governmental functions are those “enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty…” and are covered by the Act.  On the other hand, proprietary functions,  those functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality, are not covered by the Act; and a municipality is not immune from suit for torts committed in the performance of its proprietary functions. See Sec. 101.0215(b) .

Federal Cause of Action

42 U.S.Code §1983

Municipalities are also potentially liable for the deprivation of any rights, privileges, or immunities secured by the Constitution – constitutional torts.  42 U.S.Code §1983  provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory … subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…

In Monell v. New York City Dept. of Social Servs., 436 U. S. 658 (1978), the United States Supreme Court held that a municipal entity is a “person” under §1983  and is liable under §1983 if a municipal “policy or custom” causes a plaintiff to be deprived of a federal right.  In so holding,  the Supreme Court held that a municipality can not be held liable under §1983 solely because it employs a tortfeasor.

As you can see, the analysis of whether a governmental entity has tort liability under a particular set of facts can be very involved and sometimes difficult.  An attorney with experience in governmental liability should be contacted as soon a practical to begin the analysis.

Injury Lawyer

We have experience with governmental liability cases, and if you or your family member has been seriously injured or killed by a governmental entity and need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris JonesBoard Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Employment Discrimination, Texas Lawyer

Texas Employment Discrimination Law

Texas is an employment at will state.  As recognized by the Texas Workforce Commissionabsent a statute or an express agreement (such as an employment contract) to the contrary, either party in an employment relationship may modify any of the terms or conditions of employment, or terminate the relationship altogether, for any reason, or no particular reason at all, with or without advance notice.

However, there are limitations to the “employment at will” doctrine.  One exception is the “public policy” exception which protects employees from termination or adverse job action in retaliation for the employee having refused to commit a criminal act on the employer’s behalf.

In addition, an employer cannot discriminate against an employee. The Texas Workforce Commission Civil Rights Division (TWCCRD) enforces the Texas Commission on Human Rights Act, (TCHRA). Chapter 21 of the Texas Labor Code codifies the Texas Discrimination laws:

Sec. 21.051.  DISCRIMINATION BY EMPLOYER.  An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:

(1)  fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or

(2)  limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.

Sec. 21.055 also makes it an unlawful employment practice to retaliate or discriminate against a person who (1)  opposes a discriminatory practice; (2)  makes or files a charge; (3)  files a complaint; or (4)  testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.

If you have suffered an employment harm, because of your racecolorreligionnational originsex (including sexual harassment and pregnancy), agedisability, or retaliation, the TWCCRD may have jurisdiction to investigate your claim.

Texas is also a right to work state.  Under the Texas right to work laws, employment may not be conditioned or denied on the basis of membership or non-membership in a union.  See the Texas Labor Code  §§101.052-.053.

Federal Employment Discrimination Law

There are also Federal laws prohibiting job discrimination which are enforced by the EEOC:

The federal laws prohibit employers from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, if the polices or practices at issue are not job-related and necessary to the operation of the business.

After timely filing with the EEOC and/or TWCCRD and allowing the agencies to investigate, employees may receive a Notice of Right to Sue.  Please see our post EEOC Charge of Discrimination.

You may also find useful information on these posts; Overtime Regulations, Wage and Hour Law, Texas Employment and Non Compete Agreements, and EEOC Charge of Discrimination, Defending and Resolving.

If you are a Texas employer in need of an Employment Lawyer with experience in defending Employment Discrimination case, please do not hesitate to give us a call.

Board Certified Labor and Employment Lawyer

East Texas Attorney, Michelle Jones is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and has over 27 years experience helping employers.  If you are an employer in need of a Labor and Employment Lawyer, please do not hesitate to call Michelle at 903-236-4990 or toll-free at 888-236-4878.

Sexual Abuse, Texas Lawyer

Sexual Abuse

Sexual abuse is unwanted sexual activity, with perpetrators using force, making threats or taking advantage of victims not able to give consent.

Child sexual abuse is particularly egregious.  In Texas, child sexual abuse is defined in the Family Code in CHAPTER 261. INVESTIGATION OF REPORT OF CHILD ABUSE OR NEGLECT.   Examples of child sexual abuse are fondling a child’s genitals, masturbation, oral-genital contact, digital penetration, and vaginal and anal intercourse.  Child sexual abuse also includes exposure, voyeurism, and child pornography.  Notably, “abuse” in the Texas Family Code  includes the failure to make a reasonable effort to prevent sexual conduct harmful to a child.

Sexual abuse often emotionally scars its victims for life.

If you or your child have been sexually abused, you should report it to the appropriate authorities and obtain professional help as soon as possible.

There are a number of resources for those that have been abused or are aware of abuse.  For example, see the American Academy of Child and Adolescent Psychiatry, the Texas Attorney General and other online resources.

Those with pedophilia – a sexual perversion in which children are the preferred sexual object – are referred to as pedophiles.  Unfortunately, pedophiles are often clever at infiltrating organizations that give them exposure to their victims.  Parents should take steps to protect their children.  Child Safety for Parents has some interesting suggestions.

Examples of sexual abuse are not hard to find.  A popular camp in Missouri, Kanakuk Kamp, has been struck by pedophiles;  the first time by a Christian camp director that worked at the camp for 10 years, only to have another counselor charged with sexually abusing several campers less than 2 years later.   For as much good as they do, the Boy Scouts of America and Catholic Church have had to deal with pedophiles.  Colleges and schools have had pedophiles.  Businesses and governmental entities must protect their employees and customers from sexual abuse and sexual harassment.  Any organization that cares for children must concern itself with protecting those children from sexual abuse.

The schools, churches and various activities in which your children participate should have policies, procedures and background checks to help prevent sexual abuse.

Business and governmental entities should have policies, procedures and background checks to help prevent sexual abuse and sexual harassment.

An organization that identifies a pedophile or suspects child sexual abuse should report it to the proper authorities immediately.  The abuse should never be ignored.  A pedophile that goes unreported is likely to strike again.

We have experience with civil (as opposed to criminal) sexual abuse cases, and if you need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris JonesBoard Certified Personal Injury Trial Law, or Michelle JonesBoard Certified in Labor and Employment Law a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Aviation Accidents, Texas Lawyer

Aviation Accidents

Aviation Accidents are relatively rare, but are usually catastrophic. Personal Injury Lawyer Chris Jones is a Private Pilot. Chris owned and operated his own airplane, and spends time around local airports and pilots giving him insight into the potential causes of an airplane crashes. Chris also practiced law with John Howie (deceased) in Dallas. John was one of the preeminent aviation lawyers of his time. The causes of most aviation accidents primarily fall with 4 general categories : 1. pilot error; 2. controller errors; 3. maintenance problems; and 4 product defects. The Federal Aviation Administration has an online Accident/Incident Data System (AIDS) database containing incident data records for all categories of civil aviation.

The National Transportation Safety Board (NTSB) is an independent federal agency that investigates and determines the probable cause of transportation accidents, including aviation accidents. The NTSB is now publishing the Aircraft Investigation Reports online.

Pilot Error

Title 14: Aeronautics and Space, PART 91 — GENERAL OPERATING AND FLIGHT RULES of the Code of Federal Regulations prescribes rules governing the operation of aircraft within the United States, including the waters within 3 nautical miles of the U.S. coast. The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.

Pilots receive extensive training and there are a number of certifications and ratings ranging from Private Pilot to Airline Transport Pilots. PART 61—CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND INSTRUCTORS sets forth the requirements for issuing pilot, flight instructor, and ground instructor certificates and ratings; the conditions under which those certificates and ratings are necessary; and the privileges and limitations of those certificates and ratings.  Furthermore, PART 67—MEDICAL STANDARDS AND CERTIFICATION prescribes the medical standards and certification procedures for issuing medical certificates for airmen and for remaining eligible for a medical certificate, which pilots must keep current.

Like drivers, there are a number of errors pilots can make that result in accidents. It would be impossible to list them all. However, there are some errors that show up time and time in accident reports – flying into bad weather, improperly loading the aircraft and fuel starvation.

Checking the weather before the flight leaves the ground is one of the most important pilot responsibilities. In private aircraft, bad weather is a killer and should be avoided if possible. Icing and thunderstorms have no mercy when it comes to bringing down an airplane. Overloading and improperly loading an airplane can make the airplane uncontrollable. Considering the fact that there are no shoulders on the highways in the sky, checking the fuel and managing it during flight is extremely important.

Pilots should always have and use aircraft specific checklists. Above all, pilots should take their time, avoid get “homeitis”, and refuse to cut corners. As a passenger, always let the pilot take his or her time and decide whether to take off or not. It may save your life.

Controller Error

Air traffic controllers work in control towers, approach control facilities, and route centers coordinating the movement of air traffic. They ensure that planes stay safe distances apart. Their job requires total concentration 100% of the time, making it stressful and exhausting. They are an important part of a safe aviation system.

Please visit the National Air Traffic Controllers Association and the FAA Air Traffic 101 to learn more about controllers. Air Traffic Control Tapes is a very interesting FAA resource allowing you to listen to actual pilots and controllers during incidents and accidents.

Air Traffic Controllers are human and do make mistakes. Considering their responsibility to keep separation between aircraft, their mistakes can be catastrophic.

Maintenance Problems

Again, you cannot pull an airplane to the side of the road when there is a mechanical problem in flight. Preventive maintenance and discovering potential problems before they occur are some of the keys to airworthiness and avoiding crashes. The Federal Regulations require a number of inspections on an aircraft. In additional to the regulations and manufacturer recommendations, a team made up of manufacturers, owners, their representative organizations, and FAA engineers and inspectors wrote Best Practices Guide for Maintaining Aging General Aviation Airplanes to help owners of aging aircraft.

Only qualified mechanics should perform the inspections and do the maintenance. The regulations are very specific in requiring the inspection and maintenance records to be kept. The log books are critical when purchasing an aircraft or investigating a crash.

Products Liability

Aviation accidents can and do occur as a result of design defects, manufacturing defects and marketing defects. Please see our post concerning Texas Products Liability, with the understanding that the law of another state may apply to the accident.

To reduce crashes caused by product defects, the FAA issues Airworthiness Directives addressing the unsafe condition and product when the FAA finds that: (a) an unsafe condition exists in a product; and (b) the condition is likely to exist or develop in other products of the same type design. A look through the directives reveals some of the defects that can lead to problems.

Board Certified Personal Injury Lawyer

Chris Jones is a Lawyer and Private Pilot and if you or your family member has been seriously injured or killed in an aviation accident and you need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris Jones, Board Certified Personal Injury Trial Law, a call at 888-236-4878 for a free initial consultation or send us a message at Contact Us.

Premises Liability, East Texas Attorney

Premises liability claims arise from physical conditions or defects on property.  In a premises liability case, like any negligence case, the plaintiff must establish a duty owed to the plaintiff, breach of the duty, and damages proximately caused by the breach.

It should be noted that landowners may also be liable for negligent activities when a person has been injured by or as a contemporaneous result of the activity itself, rather than by a condition created by the activity.  Keetch v. Kroger Co., 845 S.W.2d 262 (Tex.1992).        

In premises liability cases, the scope of the duty turns on the plaintiff’s status.

Generally, store customers are invitees, and a property owner owes invitees a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known.

In Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983) the Texas Supreme Court set forth the elements of a premises liability in a slip and fall case:

(1) Actual or constructive knowledge of some condition on the premises by the owner/operator;

(2) That the condition posed an unreasonable risk of harm;

(3) That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and

(4) That the owner/operator’s failure to use such care proximately caused the plaintiff’s injuries.

As far as licensees, the landowner owes a duty to warn of or to make safe hidden dangers known to the landowner and a duty not to intentionally, willfully, or through gross negligence cause injury.

As to trespassers, a landowner owes only a duty not to intentionally, willfully, or through gross negligence cause injury.

It should also be noted that Texas has a recreational use statute which limits the liability of who open their land for recreational purposes. TEX. CIV. PRAC. & REM. CODE §§ 75.001 -.004. 

A general contractor in control of the premises may be liable for two types of negligence in failing to keep the premises safe: that arising from an activity on the premises, and that arising from a premises defect.” Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997).

Examples of potential premises liability and negligent activity cases against landowners would be, among others, a slip and fall on ice as a result of an ice dispenser, falling objects or merchandise, failure to remove rowdy customers, misapplication of wax on a floor, unstable platforms or stairs, rotten wood allowing a fall through a floor.

In cases in which governmental vehicles are involved, you may find helpful information in Governmental Tort Liability.

We have experience with premises liability cases, and if you or your family member has been seriously injured or died on a dangerous premises or as a result of a premises owner’s negligent activity and need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris JonesBoard Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Texas Employment and Non Compete Agreements

Employment agreements with a non compete that places limits on former employees’ professional mobility are restraints on trade and are governed by  Chapter 15 of the Texas Business and Commerce Code,  Subchapter E. COVENANTS NOT TO COMPETE  ( the “Act” ).  Employment agreements not to disclose trade secrets and confidential information are not governed by the Act.

The Act sets forth the criteria for the enforceability of Covenants Not to Compete in Texas:

[A] covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.

There are additional requirements for Physicians:

A covenant not to compete relating to the practice of medicine is enforceable against a person licensed as a physician by the Texas Medical Board if such covenant complies with the following requirements:

(1)  the covenant must:

(A)  not deny the physician access to a list of his patients whom he had seen or treated within one year of termination of the contract or employment;

(B)  provide access to medical records of the physician’s patients upon authorization of the patient and any copies of medical records for a reasonable fee as established by the Texas Medical Board under Section 159.008, Occupations Code; and

(C)  provide that any access to a list of patients or to patients’ medical records after termination of the contract or employment shall not require such list or records to be provided in a format different than that by which such records are maintained except by mutual consent of the parties to the contract;

(2)  the covenant must provide for a buy out of the covenant by the physician at a reasonable price or, at the option of either party, as determined by a mutually agreed upon arbitrator or, in the case of an inability to agree, an arbitrator of the court whose decision shall be binding on the parties; and

(3)  the covenant must provide that the physician will not be prohibited from providing continuing care and treatment to a specific patient or patients during the course of an acute illness even after the contract or employment has been terminated.

Non compete agreements were once held to be unenforceable in Texas on the basis that they were in restraint of trade and contrary to public policy.  Later, “people and the courts” came to recognize that “it was in the interest of trade that certain covenants in restraint of trade should be enforced.” Addyston Pipe & Steel Co., 85 F. 271, 280  (6th Cir. 1898), aff’d 175 U.S. 211 (1899).

Recently, the Texas Supreme Court examined Texas Non Compete Agreements subject to the Act in Marsh USA Inc. v. Cook and found that a non competition agreement is enforceable if it is reasonable in time, scope and geography and, as a threshold matter, “if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made.” TEX. BUS. & COM. CODE § 15.50(a).  The Supreme Court set forth a two-step inquiry to determine the threshold requirement for enforceability under the Act:

First, a determination is made as to whether there is an “otherwise enforceable agreement” between the parties.

Second, a determination is then made as to whether the covenant is “ancillary to or part of” that agreement.

If these two threshold requirements are met, then the Court looks to whether the non compete is reasonable in time, scope and geography.

When an employee subject to an employment agreement with a non compete leaves an employer, it often results in a contentious situation.  Even though the Texas Supreme Court set forth the guidelines for covenants not to compete, interpretation and application of the guidelines can be difficult. Reasonableness is often in the eye of the beholder and depends on whether you are the Employer or Employee.

If you are in need of a Board Certified Labor and Employment Lawyer in East Texas or local counsel in Gregg County or the Eastern District of Texas,  please contact Michelle JonesJones & Jones, Attorneys at Law, at 888-236-4878 or contact us by email.

Rules of Evidence in Jury Trials

If you have ever served on a jury or watched trials on television, you have seen lawyers object to evidence that the jury was not allowed to see. It raises the question in the jury’s mind of “why they are keeping information from us if the trial is about truth and justice”. The answer to this question lies in the rules of evidence. The Texas Rules of Evidence state that ” [t]hese rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” The Federal Rules of Evidence have a similar purpose.

LIABILITY INSURANCE

One issue that seems to come up in voir dire is insurance. The rules state that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.” Rule 11. There are circumstances where the existence of insurance coverages is allowed in evidence, but the general assumption by Defendants is that the jury is more likely to find liability if they know the Defendant is insured. Watch the lawyers in the courtroom freeze when insurance is mentioned by a witness, jury panel member or anyone. In fact, courts will go so far as to prevent the lawyers from asking if anyone works for an insurance company during voir dire – hence the question “is anyone involved in the claims handling process”.

CHARACTER EVIDENCE

Character Evidence is another area that can cause a fight “outside the presence of the jury”. Rule 404 provides ” [E]vidence of a person’s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion”. In other words, the jury should not find that a person or entity is guilty of a wrongful act on a particular occasion on the basis that they had done it before. Character evidence may be admissible if it is a habit or to prove defect in a product where there have been other similar instances.

SUBSEQUENT REMEDIAL MEASURES

After an accident, the defendant may take measures that, if taken before the accident, would have made the injury or harm less likely to occur. Although there are circumstances where such measures are admissible, Rule 407 provides that evidence of the subsequent remedial measures is not admissible to prove negligence, culpable conduct, a defect in product, a defect in product’s design, or a need for a warning or instruction. The rationale behind the rule is that you do not want to penalize or prevent a Defendant from doing what is necessary to prevent others from being injured.

OPINIONS AND EXPERT TESTIMONY

Rule 702 seems like a simple rule: “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” In cases involving experts, huge amounts of time are spent dealing with whether an expert should be allowed to testify. Ultimately, it is up to the jury to decide whether to believe an expert, but case-law requires the Court to act as a gatekeeper and examine the qualifications of an expert and the opinions they are giving before allowing them to testify.

Obviously, there are many Rules of Evidence, but these are examples of areas that may come up during a trial that require the court to dismiss the jury to the jury room so that rulings can be made.

It may seem that the Court and lawyers are wasting the jury’s time or hiding evidence from the jury, but what they are doing is following the rules in an effort to see that “the truth may be ascertained and proceedings justly determined.”  In you are on a jury, simply follow the Court’s instructions, require the other jurors to do the same, and justice should be served.

If you are in need of an experienced  Personal Injury or Labor and Employment Lawyer in East Texas or local counsel in Gregg County or the Eastern District of Texas,  please contact Chris Jones or Michelle Jones, Jones & Jones, Attorneys at Law, at 888-236-4878 or contact us by email.

Defective Products, Products Liability, East Texas Attorney

Defective products can seriously injure and kill you.

We use “products” every day.  As consumers we count on manufacturers to manufacture and sellers to sell safe products.  In fact, most consumers probably assume the products they buy at local stores and dealerships are safe.  But that is not always the case. What is a defective product?  There are design defects, manufacturing defects, and marketing defects.  This post discusses Texas products liability law which is controlled by Chapter 82 of the Texas Civil Practice and Remedies Code.

This best way to understand what Texas law requires is to look at the  instructions the Judge will give the jury in a Texas products liability or defective product case.

Design Defect

In Texas, a “design defect” is a condition of the product that renders it unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use. For a design defect to exist there must have been a safer alternative design.

Safer alternative design” means a product design other than the one actually used that in reasonable probability—

(1) would have prevented or significantly reduced the risk of the occurrence or injury in question without substantially impairing the product’s utility and

(2) was economically and technologically feasible at the time the product left the control of DEFENDANT by the application of existing or reasonably achievable scientific knowledge.

Manufacturing Defect

A “manufacturing defect” in a defective product means that the product deviated in its construction or quality from its specifications or planned output in a manner that renders it unreasonably dangerous.   An “unreasonably dangerous” product is one that is dangerous to an extent beyond that which would be contemplated by the ordinary user of the product, with the ordinary knowledge common to the community as to the product’s characteristics.

Marketing Defect

A “marketing defect” with respect to a defective product means the failure to give adequate warnings of the product’s dangers that were known or by the application of reasonably developed human skill and foresight should have been known or failure to give adequate instructions to avoid such dangers, which failure rendered the product unreasonably dangerous as marketed.

“Adequate” warnings and instructions mean warnings and instructions given in a form that could reasonably be expected to catch the attention of a reasonably prudent person in the circumstances of the product’s use; and the content of the warnings and instructions must be comprehensible to the average user and must convey a fair indication of the nature and extent of the danger and how to avoid it to the mind of a reasonably prudent person.

An “unreasonably dangerous” product is one that is dangerous to an extent beyond that which would be contemplated by the ordinary user of the product with the ordinary knowledge common to the community as to the product’s characteristics.

Unfortunately, products liability and defective product cases are difficult and expensive allowing only cases with the most serious injuries and or deaths to proceed.  Even so, you can and should report potential defective products to the Consumer Product Safety Commission and the National Highway Traffic Safety Administration.

If your potential defective product claim involves an automobile defect, please see our personal injury blog post Crashworthiness.  We have handled a number of automotive defect claims involving roof crush,  fuel fed fires, seat belts, defective window glass, rollover, tires, doors opening during crashes.  Among other defective product cases we have handled are cases involving medications, boats, lawn mowers, steering systems,  child restraints, chain saws, backup alarms and firearms.  If your potential claim concerns an aviation product, please see our personal injury blog post Aviation Accidents.

The defective product is important evidence in a products liability case.  Do not dispose, alter, or in any way spoil the defective product as evidence if you are considering legal action.

We have experience with products liability cases, and if you or your family member has been seriously injured or died as a result of a defective product and need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris JonesBoard Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Car Accidents, Negligent Driving, East Texas Attorney

Texas Car Accidents

Car Accidents are caused by negligent driving. Yes, this is obvious, but what exactly does negligent driving mean?

If you have a car wreck and end up in court, the question for the jury will be:

Did the negligence, if any, of DEFENDANT DRIVER proximately cause the accident in question?  YES or NO

” Negligence,” when used with respect to the conduct of DEFENDANT DRIVER means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

The law requires ______________. A failure to comply with this law is negligence in itself.

It is safe to assume that “a person of ordinary prudence” will follow the Texas Drivers Handbook.  But when was the last time you looked through the Texas Drivers Handbook?  Take a look now.  You will find something you didn’t know about driving, or that you have forgotten.

Have you ever read the Texas Rules of the Road in Chapter 545 of the Texas Transportation Code?  There are specific requirements for drivers depending on the situation.  Do it wrong and you may not only receive a citation, but may also be found guilty of negligence per se if you cause an accident. Negligence per se is when a person’s expected standard of conduct is defined by a statute – instead of being judged by the ordinary prudent person test.  In other words, fill in the blank above with the law violated and the judge is now instructing the jury that the DEFENDANT DRIVER was negligent.

Did you know that there are also specific laws on what you must do if you are in an accident?  Please also review  CHAPTER 550. ACCIDENTS AND ACCIDENT REPORTS of the Texas Transportation Code.

NHTSA did a study in 2008 and found that motor vehicle traffic crashes were the leading cause of death for every age 3 through 6 and 8 through 34.  There many statistics,  but one death caused by negligent driving is one death too many.

Know the rules of the road,  keep your eyes on the road, put down the cell phone, do not drive if you are intoxicated or fatigued, and drive defensively.

To avoid car accidents the Texas Drivers Handbook recommends:

DEFENSIVE DRIVING
To avoid crashes, the defensive driver should:
1. Stay alert and keep his eyes moving so that he [or she] can keep track of what is happening at all times.
2. Look for trouble spots developing all around him [or her].
3. Have a plan of action if the other driver does the wrong thing.
4. Know that the law requires drivers to protect each other from their own mistakes.

You cannot drive defensively if you are DRIVING WHILE DISTRACTED.  According to NHTSA, you are 23 times more likely to be in a crash if you text while driving.  So “OMG” please put down the phone and watch the road while driving.

If the accident was caused by a distracted driver, please see our posts; Distracted Drivers Hurt People and Texas Texting While Driving Ban Becomes Law. 

This post was not meant to be the lecture it turned out to be.  Oh well, if it helps one person drive safer, then it was worth posting.

Please also refer to our personal injury blog and our posts, East Texas Auto Accident Lawyer, Truck Accident LawyerMotorcycle Accident Lawyer,  Documenting Personal Injury Damages and Motor Vehicle Crash, Now What?

East Texas Personal Injury Attorney

We have experience with cases involving car accidents caused by negligent driving, and if you or one of your family members has been seriously injured or killed as a result of negligent driving and need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris Jones, Board Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Nursing Home Neglect

Nursing Home Neglect is serious.  It is serious for those being abused, those abusing and those failing to report the abuse.  If you believe a person 65 years or older, or an adult with disabilities is being abused, neglected, or exploited, report it to the Texas Department of Family and Protective Services (DFPS).  Obviously, you need to call 911 or your local law enforcement agency if the situation is a life threatening or emergency situation.

When the time comes for a loved one to live in a nursing home, it is often difficult.  Concern about whether they will be cared for properly and treated with respect should not be part of the equation. Nursing homes are paid to provide quality care.  When they do not, something should be done.  Out of fear of retaliation, the nursing home resident may not report abuse or neglect.  They are dependent on the nursing home and its employees.  The last thing they want to do is lose what care they are receiving.   For this reason, it is incumbent on those who visit the home to keep a look out for problems and report them as soon as they have concerns.

You can use the Texas Abuse, Neglect, and Exploitation Reporting System website for reporting suspicions of abuse, neglect, and exploitation of children, adults with disabilities, or people who are elderly (65 years or older) or call the Report Abuse, Neglect, or Exploitation hotline at   1-800-252-5400 .

The Texas Department of Aging and Disability Services (DADS) Consumer Rights and Services also takes complaints about the treatment of people who receive services in long-term care facilities or in their homes. 

Complaints (reports of abuse):
1-800-458-9858
Nursing Home Information:
1-800-252-8016

Medicare has a tool to compare nursing homes you may also be helpful – Medicare Nursing Home Finder.

When nursing home negligence results in injuries and deaths, you should not hesitate to hire a lawyer.

We have experience with cases involving nursing home neglect, and if you or your family member has been seriously injured or died as a result of nursing home neglect and need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris Jones, Board Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Lockout Tagout

If lockout tagout is not properly implemented, approximately 3 million workers face risk of injury according to OSHA.  OSHA has a specific lockout tagout standard 29 CFR 1910.147.  OSHA estimates that compliance with the standard prevents an estimated 120 fatalities and 50,000 injuries each year.

In simple terms, lockout/tagout safeguards employees from the unexpected energization or startup of machinery and equipment, or the release of hazardous energy during service or maintenance activities. Lockout is preferred over tagout.  OSHA has a lockout/tagout fact sheet (available in Spanish) and a more detailed lockout/tagout publication available for download.  OSHA even has an interactive lockout tagout interactive training program.

Imagine a coworker starting a meat grinder, wood chipper, or large mixer while you or one of your body parts are in it.  Unfortunately, it happens.  Search the internet and the OSHA Fatality and Catastrophe Investigation Summaries and you will quickly learn why lockout/tagout is so incredibly important.

Exhibit A to 29 CFR 1910.147 describes typical minimal lockout procedures.

OSHA issues citations for failing to develop and implement lockout/tagout programs and failing to provide training for employees on the use of lockout/tagout devices, but many times it is too late.  Do not wait for OSHA to issue a citation.  Implement a lockout tagout program, train your employees and make sure they comply with the program.  The failure to do so can be catastrophic.

Whatever your application, there are several lockout devices, tags and padlocks available for purchase.

If you are a worker that believes your employer is not following OSHA standards or that there are serious hazards,  employees can file a complaint online with OSHA or by calling 1-800-321-OSHA (6742).

We have experience with industrial or construction accidents involving lockout tagout (or the failure to lockout tagout), and if you have been seriously injured or have lost a loved one and need a Texas accident attorney, please do not hesitate to give East Texas Attorney, Chris Jones, Board Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Texas Truck Accidents

18 Wheeler Truck Accidents

Truck accidents accounted for 3,380 fatalities and 74,000 people injured in the United States in 2009.  296,000 large trucks (gross vehicle weight rating greater than 10,000 pounds) were involved in traffic crashes according the U.S. Department of Transportation.

Texas has one of the best systems of interstates and highways.  A map of the United States Interstate System reveals why there are a large number of 18 wheeler trucks on the roads of Texas.  Unfortunately, trucks on the roads ultimately lead to truck accidents, injuries and deaths and the need for an experienced Texas truck accident Lawyer.

Truck drivers have a difficult job.  They are subject to a number of laws and regulations.  Even though there are regulations concerning hours of service, truck drivers drive for long hours – and must be completely attentive the entire time. If a truck driver daydreams, texts or simply fails to keep their eyes on the road, they can quickly cause an accident.  Many truck accidents are catastrophic.

Although most 18 wheeler truck drivers do not understand physics formulas and calculations, they must respect the laws of physics if they are to avoid accidents. You do not need to understand Albert Einstein’s mass-energy equivalence equation (E = mc2) to realize that an 80,000 pound mass traveling at a speed of 55 to 75 mph is a huge amount of potentially destructive energy that must be controlled by the driver.

Federal Motor Carrier Rules and Regulations

The Federal Motor Carrier Safety Regulations (FMCSRs) provide rules and regulations that Federal Motors Carriers must follow. The Texas Commercial Motor Vehicle Drivers Handbook provides driver license testing information for drivers who wish to have a Texas commercial driver license (CDL). Thankfully, the Federal Motor Carrier Safety Regulations (FMCSRs) and the Hazardous Materials Regulations (HMR) are being amended to restrict the use of hand-held mobile telephones by drivers of commercial motor vehicles. There are many rules and regulations which, if followed, will help avoid truck accidents.

Truck Accident Evidence

Every truck accident is different, but there is important evidence that should be collected after any trucking accident.  The regulations require the drivers to keep logs which can be examined.  The truck and its maintenance records are important evidence.  Some trucks may be equipped with GPS and other transmitters that allow the home base to locate the truck and monitor the speeds of the truck.  There should be fuel receipts that can be used to retrace the route taken, and may help determine the hours worked and speeds driven by the driver.  If documented soon after the accident, the scene will have clues as to what happened.  In more serious accidents, the highway patrol will often document the scene and perform an accident reconstruction. Eyewitnesses can be extremely important evidence.  There are many other types of evidence that may be important.  The trucking companies know this and start collecting evidence immediately.  For this reason, it is important to hire a lawyer with whom you are comfortable as soon as possible after an accident.

You may also refer to our posts, Truck Accident Lawyer, Documenting Personal Injury Damages and Motor Vehicle Crash, Now What?.

Experienced Texas Truck Accident Attorney

We have experience with truck accidents, and if you have been seriously injured or have lost a loved one in an accident and need a Texas truck accident attorney, please do not hesitate to give East Texas Attorney, Chris Jones, Board Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Oilfield Accidents, Injuries and Deaths

Oilfield accidents causing injuries and deaths are a risk that all oilfield workers must face.  A job in the oilfield can be lucrative and rewarding, but safety must be kept at the forefront.

East Texas has a strong oil and gas industry which is growing even stronger with recent discoveries in the Haynesville Shale and new drilling techniques.  East Texas County Clerks’ offices have been full of land men and land women searching title.  Mineral owners have been signing new leases.  Oil and gas companies know they must drill prior to the termination of the leases.  This means work in the oil field.

Drilling rigs are expensive.  Oil and gas operators want the job done fast.  When oil and gas prices rise,  the push to “get it done” gets even harder.  If not managed correctly, this can lead to oilfield accidents with injuries and deaths.

Unfortunately, when the push to get it done causes an accident in the oilfield, the results can be catastrophic considering the pressures that are involved, the size of the equipment used, the heights of a drilling rig, the harsh environment in which the equipment and workers must operate and the power and electricity required to operate the rig and equipment – not to mention the fact that the oil or gas being sought is flammable.

The Deepwater Horizon Accident is a good example of what can go wrong.  BP’s September report and the Bureau of Ocean Energy Management, Regulation and Enforcement report concerning the accident are interesting to read.  The Bureau of Ocean Energy Management, Regulation and Enforcement report

If you work in the oilfield, resist the push to “get it done quickly” and get it done safely.

We have experience with oilfield accidents, and if you have been seriously injured or have lost a loved one in an accident, please do not hesitate to give East Texas Attorney, Chris JonesBoard Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

 

Personal Injury and Wrongful Death Compensation

What is my personal injury or wrongful death claim worth?

This is the question asked by those with personal injuries or a wrongful death claim resulting from wrongful conduct, whether from negligence in a car accident or truck wreck, injury in the oilfield, or as a result of a defective product, etc..  It is the question that the Defendant, Insurance Adjuster and Defense Lawyer must consider in determining whether to settle a personal injury claim.

The answer to the question is that the claim is worth whatever the trier of fact (judge, jury or arbitrator) may ultimately decide after considering the elements of damages available in a particular claim – if their decision is allowed to stand after any available appeals are exhausted. Accordingly, documentation of personal injury damages is extremely important.

Every client is different.  Every claim is different.  Every judge and jury is different and every lawyer presenting the case is different.  Without a crystal ball, there is no certain answer.

Often, it is the uncertainty and the desire to control the outcome that leads to the settlement of cases.

Personal Injury Damages

You must understand what types of personal injury damages are available for your case (known by lawyers as the elements of damages).  Looking at the questions that will ultimately be decided by the trier of fact (judge or jury) is a great way to start understand what you may or may not be entitled to receive. In Texas, we have the Pattern Jury Charges, which are a good resource to see what the trier of fact will decide.

Generally, these are the elements to be considered in a Texas personal injury case:

Damages to Injured Person

  • Physical pain and mental anguish sustained in the past.
  • Physical pain and mental anguish that, in reasonable probability,
    will be sustained in the future.
  • Loss of earning capacity sustained in the past.
  • Loss of earning capacity that, in reasonable probability, will be
    sustained in the future.
  • Disfigurement sustained in the past.
  • Disfigurement that, in reasonable probability, will be sustained in
    the future.
  • Physical impairment sustained in the past.
  • Physical impairment that, in reasonable probability, will be sustained
    in the future.
  • Medical care expenses incurred in the past.
  • Medical care expenses that, in reasonable probability, will be incurred
    in the future.

Damages to the Spouse of an Injured Person

  • Loss of household services sustained in the past.
  • Loss of household services that, in reasonable probability, [Spouse of Injured Person] will sustain in the future.
  • Loss of consortium in the past.
  • Loss of consortium that, in reasonable probability, [Spouse of Injured Person] will sustain in the future.

Survival and Wrongful Death Damages

In Texas, the estate of a deceased or heirs may be able to recover compensation for the deceased under the Survival Statute.

Survival Damages

  • Pain and mental anguish.
  • Medical expenses.
  • Funeral and burial expenses.

In addition, there is a Wrongful Death Statute that allows the spouse, children and parents of someone killed by a wrongful act to recover compensation for the loss of a loved one.

Wrongful Death Damages

  • Pecuniary loss sustained in the past.
  • Pecuniary loss that, in reasonable probability, will be sustained in the
    future.
  • Loss of companionship and society sustained in the past.
  • Loss of companionship and society that, in reasonable probability, will be sustained in the future.
  • Mental anguish sustained in the past.
  • Mental anguish that, in reasonable probability, will be sustained in the future
  • Loss of inheritance.

Exemplary Damages

In certain cases exemplary damages may be awarded as a penalty or by way of punishment but not for compensatory purposes. Exemplary damages include punitive damages.

There is much law on what and when personal injury and wrongful death compensation is available. This post is simply to give you are general idea of what types of damages may be available.  For further information on this topic, please  refer to the article by Stephen M. Horner. Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The State of Texas. Journal of Forensic Economics 20 (1), 2007, pp. 49-71.

If you have been seriously injured or have lost a loved one in an accident, please do not hesitate to give Chris JonesBoard Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Documenting Personal Injury Damages

Documenting your personal injury damages after an accident causing personal injuries or death is extremely important.  Juries come into the courtroom conditioned by cries for tort reform and claims of jackpot justice.  For jurors to understand your damages, especially your personal injuries such as pain and suffering and mental anguish, they must see them to appreciate them.

Even though most cases settle, a fair settlement is based upon what the jury may find as the dollar amount of damages.  It is easy to calculate past medical expenses, future medical expenses, past lost earnings, future loss of earning capacity and property damages.  Pain and suffering, mental anguish and physical impairment are more difficult to prove and often depend on how well these damages are documented.

Photographs and video are excellent ways to document personal injury damages.  With cell phones that take photos and videos, there are many opportunities to make a record of the accident scene, property damage, bruises, lacerations, stitches,  hospital stays, trips to the doctor, difficulty in doing simple things such as getting dressed or grooming.  Bruises fade, stitches and casts are removed and thankfully, people get better.

Photographs or videos?  It depends on the situation, but both are usually the best answer.  Digital photos and videos  are easy to share, and the videos can be edited to make the trial presentation flow.

Obviously, seeking medical care is the first priority!  When possible you should always photograph and video your injuries and damage to the vehicles.  If you are documenting the accident scene, do it safely.  Do not get in the roadway and cause another accident!

Consider having someone video you doing the simple activities that are difficult because of your injuries.

If the accident involves a death, consider documenting the funeral.  You should also gather photographs of your lost loved one doing the things they enjoyed and spending time with the family.

Finally, as creepy as it seems, be aware that the Defendant may attempt to video or photograph you doing things that you say you cannot do.  If there is a vehicle with dark windows sitting across the street, you may be being watched!

If you have been seriously injured or have lost a loved one in an accident, please do not hesitate to give Chris JonesBoard Certified Personal Injury Trial Law, a call for a free initial consultation or send us a message at Contact Us.

Electrocution Attorney

Experienced Electrocution Attorney

Chris Jones has handled electrocution and electrical contact cases on both the Plaintiff and Defense sides of the docket. Using the experience learned defending the utility, we now represent the victims of electrocutions and electrical burns against Electric Utilities.

We recently successfully represented the family of a young man who was electrocuted on an oil rig, and another family of a man who was electrocuted while trimming trees.  We also recently represented a young  man who lost his arm when he contacted a distribution line that was hanging too low.

Early in hisdanger electricity career, Chris defended an electric utility against a case involving a young man who was electrocuted in his front yard while checking on his dog. The dog was whining in the rain. As it turned out, the dog was chained to a metal spike driven into the ground. Unfortunately, the spike was contacting live electrical wiring that once fed an electric light, and when the gentleman grabbed the chain, making all of the links come together, he and the dog were electrocuted. The case went to trial and resulted in a defense verdict, probably because the wiring was on the customer side of the meter, and the gentleman likely knew there was wiring in his front yard before he drove the stake into the ground. Chris also defended the utility in a trial where a utility distribution line fell on a residential service drop causing high voltage to blast through a home.

We know how to handle electrocution cases.  They are not easy cases and you need an attorney experienced in these cases.

One thing is for sure, and everyone asked in depositions agrees, electricity is dangerous! Not all electrical contracts are deadly, but electrical burns are painful and devastating injuries.  It needs to be treated with respect and the electric codes and electrical safety standards must be followed. The IEEE publishes the National Electrical Safety Code (NESC). The NESC sets forth standards for the practical safeguarding of persons during the installation, operation, or maintenance of electric supply and communication lines and associated equipment. The National Fire Protection Association (NFPA) publishes the National Electrical Code (NEC). The purpose of the NEC is ” the practical safeguarding of persons and property from hazards arising from the use of electricity.” The NESC basically applies to electric supply (power) and communications utilities and is used primarily by utility engineers and utility lineman. The NEC covers wiring in buildings and is primarily used by engineers and electricians. At times, the NEC and NESC overlap. Safe work practices and compliance with OSHA regulations and use of safe equipment according to the manufacturer’s instructions can reduce the risks of electricity. There are also electrical devices that may help reduce risks. The use of ground fault circuit interrupters (GFCI) in the home and workplace should always be considered. Use a qualified electrician for electrical work. The discovery of electricity completely changed civilization. We use it every day. Even so, we need to respect it and do everything we can to make sure its only effects are beneficial, and not harmful or deadly.

East Texas Personal Injury Attorney

We have experience with cases involving electrocution and electrical contact accidents, and if you or one of your family members has been seriously injured or killed as a result of an electrical contact and need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris Jones, Board Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Workplace Injury – Texas Workers Compensation – The Exclusive Remedy?

Workplace Injury? If you have been injured on the job, you need to know whether your employer is covered by Texas Workers Compensation Insurance. Texas does not require employers to carry workers compensation insurance to cover workplace injuries.  You may search to determine whether your employer has workers’ compensation coverage by going to the Online Employer Workers’ Compensation Insurance Verification Search.  If the employer is covered, the Texas Department of Insurance (TDI) has a list of Employee Frequently Asked Questions you may find helpful.  If you are an employer, you may find the TDI page Information for Employers helpful.  The TDI website has a number of useful resources and is worth visiting before and after a workplace injury.

If your employer is not covered by workers compensation insurance, some employers buy accident and health policies, employer indemnification agreements, and disability policies as cheaper alternatives to workers’ compensation. Even though these policies may provide benefits to an injured employee, Texas law does not recognize them as substitutes for workers’ compensation insurance and your employer will likely be considered a nonsubscriber.

The difference between a subscribing employer and a non-subscribing employer is significant. Nonsubscribing employers are subject to a lawsuit claiming negligence for a workplace injury or death. Subscribing employers are not. The Texas Workers Compensation Act provides:

Sec. 408.001. EXCLUSIVE REMEDY; EXEMPLARY DAMAGES.

(a) Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.

(b) This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer’s gross negligence.

In short, if the employer is a subscriber, workers’ compensation benefits is the exclusive remedy against the employer, unless the employee dies as a result of an intentional act or omission of the employer or by the employer’s gross negligence.

For nonsubscribers it is completely different. The employee can file suit against the employer claiming negligence and the employer loses some of its defenses:

Sec. 406.033. COMMON-LAW DEFENSES; BURDEN OF PROOF.

(a) In an action against an employer who does not have workers’ compensation insurance coverage to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:

(1) the employee was guilty of contributory negligence;

(2) the employee assumed the risk of injury or death; or

(3) the injury or death was caused by the negligence of a fellow employee.

(b) This section does not reinstate or otherwise affect the availability of defenses at common law, including the defenses described by Subsection (a).

(c) The employer may defend the action on the ground that the injury was caused:

(1) by an act of the employee intended to bring about the injury; or

(2) while the employee was in a state of intoxication.

(d) In an action described by Subsection (a) against an employer who does not have workers’ compensation insurance coverage, the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment.

The Texas workers’ compensation statutes are located in Texas Labor Code, Title 5. Workers’ Compensation.

The statutes above deals with claims against the employer. The on the job injury or death may be the result of the wrongful conduct of someone other than the employer or as a result of a defectively designed products or warnings. Whether the employer is a subscriber or not, a lawsuit can be filed against a negligent third-party or based upon a defective products.  For example, many workplace injuries involve machine guarding, or lack thereof, lock out tag out, OSHA violations, NEC and NESC violations, etc…

The Workers Compensation Statute provides:

Sec. 417.001. THIRD-PARTY LIABILITY.

(a) An employee or legal beneficiary may seek damages from a third-party who is or becomes liable to pay damages for an injury or death that is compensable under this subtitle and may also pursue a claim for workers’ compensation benefits under this subtitle.

(b) If a benefit is claimed by an injured employee or a legal beneficiary of the employee, the insurance carrier is subrogated to the rights of the injured employee and may enforce the liability of the third-party in the name of the injured employee or the legal beneficiary.

Section (b) deals with subrogation which may allow the insurance carrier to recover all or some of the benefits it has paid out of any third-party settlement or judgment.

The above are excerpts from a detailed Act and the issues that arise in on the job accidents and injuries can be complicated. The point of this post is that there may be remedies available in addition to workers compensation benefits or a claim against an employer.

If you are a worker that believes your employer is not following OSHA standards or that there are serious hazards,  employees can file a complaint online with OSHA or by calling 1-800-321-OSHA (6742).

Please also see our posts concerning workplace injuries – Accidents in the Workplace – Fall Protection, Defective Products, Products Liability and Lockout Tagout.

If you have been seriously injured or have lost a loved one in a workplace accident, and need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris JonesBoard Certified Personal Injury Trial Law, a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

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