For a liquor provider, the basic Texas dram shop liability act investigates several factors including whether the provider broke the law in selling or giving the alcohol to the DWI driver; whether such alcohol was the proximate cause of his intoxication (oftentimes, the drunk driver has received alcohol from a number of providers prior to a major accident); whether the provider knew or should have known that the defendant DUI / DWI driver was below the legal age of 21 or heavily intoxicated at the time the alcohol was furnished; whether it was objectively obvious the person was intoxicated or was underage at the time; and finally, whether the intoxication level was the primary driving factor behind a DWI / DUI death or serious injury.

The seminal case that has driven the enactment of dram shop liability laws was a NJ case called Rappaport v. Nichols , which held that a bar could be held legally liable for furnishing alcohol to an underage or visibly intoxicated individual who thereafter commits a DWI / DUI offense that kills or seriously injures pedestrians or other drivers.

The dram shop laws differ from state to state in terms of who is allowed to sue under the statute, who is a potential 3rd party, what type of behavior is considered dram shop liability, and the level of fault required. If you or a loved one have suffered injury at the hands of a drunk driver, you should contact a DWI attorney without delay. Depending on the state or jurisdiction where the DWI / DUI accident occurs, Baseluos Law Firm attorneys can bring a negligence action either under the common law , the specific state dram shop act, or a combination. Providing alcohol to a minor in of itself is considered “negligence per se”, a fancy way of saying it is an automatic violation of the dram shop law.

There are cases in which the injured party is the DWI driver himself, which presents an interesting albeit challenging case. The attorney would have to show the provider was negligent in providing the plaintiff with the alcohol, but a jury is likely to ascribe some percentage of negligence to the DWI driver himself. Percentages tend to run lower if the injured plaintiff was a pedestrian.

One of the most intriguing aspects of DWI accident law is the concept of social host liability, where the DWI injury is the result of a driver who receives his alcohol at an informal party or gathering like a wedding. Some jurisdictions especially in the Northeast, particularly NJ, have recognized social host liability to the extent the courts make no distinction between commercial and private providers of alcohol. Michael Baseluos examines all fact situations involving DWI accidents including situations where the negligent driver obtained his alcohol in an informal setting. Certain exceptions can be carved out for a social host’s liability for a drunk guest’s negligence that injures others even in jurisdictions which might not recognize social host liability.

Negligent entrustment is especially applicable in the case of a rental agency which rents vehicles to an unlicensed or drunk driver. However, if the person renting the vehicle did not exhibit any tell tale signs of recklessness or incompetence or some disability that would impair them, it is more difficult to impute liability to a car rental agency. It should also be noted that if the owner is an employer or has already admitted liability for the driver, then a theory of negligent entrustment is not necessary.

At times, if there is adequate insurance coverage on the driver, then it may not be necessary to involve the driver. However, in many cases, there is no insurance coverage or level of injuries far exceed the level of coverage and therefore the attorney must try to bring in the owner on a negligent entrustment theory. As a matter of trial tactics, a sympathetic negligent driver can also hurt a case for damages, and it is necessary to bring the owner or employer into the case, especially if there is a case for liability.

While not common, there are situations where a passenger can be held liable for the negligent acts of a driver. Some specific examples include direct acts that interfere with the driver, or providing intoxicants and permitting that person to drive. To hold a passenger jointly liable for injuries, Baseluos Law Firm will examine whether the passenger committed such acts as pressing on the brake or accelerator, preventing the driver from applying the brake or accelerator, grabbing the steering wheel; hindering the driver’s view; pushing or aggressively fighting with the driver, and other various acts.

Another scenario involving passenger joint liability is if the passenger and driver were involved in a joint venture. Some common tell-tale marks of a joint venture include going to a common destination ; an agreement to share expenses; a joint venture in renting the vehicle; joint ownership of the vehicle; and other forms of proof that reflect an equal opportunity to control the direction of the vehicle.

Trying to fix liability on a passenger who provides alcohol or drugs to the driver generally requires proof of some additional act besides giving alcohol. The theory of negligent entrustment in such cases becomes stronger when the passenger is also the owner.

Negligent entrustment theory also can apply in certain situations where the passenger has some sort of authority over the driver’s actions. A common scenario is the limousine driver and the owner-passenger or the passenger that hires the driver. Other scenarios include a driving school instructor passenger and the student driver.

The objective of negligent entrustment is to provide another tool to hold persons outside the driver negligent under the law in the various greater San Antonio auto accidents that occur daily.

If an owner expressly or impliedly gives his consent to a member of the family, that owner can be held liable, especially if the vehicle was purchased by the owner and used for family activities. To invoke the family purpose doctrine, Baseluos Law Firm works to demonstrate that the owner defendant 1) maintained control and ownership of the vehicle; 2) utilized the vehicle for family activities; 3) the negligent driver was a member of the owner’s family; 4) the driver was using the vehicle at the time for a family purpose; and 5) the owner gave his consent for the use.

The family purpose doctrine is not just applicable to a head of household but also parents and their children. To hold another family member liable, that individual must have been an owner of the vehicle . The registered owner is not necessarily indicative of family car liability. When examining whether a vehicle fits the role of a family car, courts look at factors such as who assumed the financial responsibility for the car; who had the right to control use of the car; and the intent of the family members.

Often, in San Antonio car accidents, owners try to escape liability by claiming the family member exceeded the scope of permission for use of the car. For example, owners will claim that the vehicle was only to be driven to a certain location or within certain hours. Even if the car was used in a manner not approved by the owner, if the use was generally within the scope of the permission, owners will not escape liability.

Moreover, even if the vehicle was originally bought for business purposes, but ultimately is used to for family activities, the family purpose doctrine still applies.

Sometimes a family member will lend a vehicle to another person to drive without the permission of the owner. In such a case, the owner may still be held liable if that owner allowed the original family to use the vehicle and the vehicle was being used for a family activity at the time of collision. The family purpose doctrine can even apply when the owner explicitly told the family member not to allow third parties to drive the vehicle.

Sometimes application of the family purpose doctrine is rendered obsolete, because the insurance coverage of the owner automatically extends to household members or individuals given permission to drive by the owner. Because insurance policies are often the primary means of obtaining compensation, invocation of the family purpose doctrine is often not necessary.

In a twist, an owners suing a family member for damage to his car may find himself limited on damages if it can be shown he has comparative negligence for allowing the family member to drive the car in the first place.

To illustrate res ipsa loquitur, there are some common types of accidents that come to mind. In cases where the vehicle leaves the roadway without apparent cause, there is an inference of negligence. Another example is a recent trucking case where Baseluos Law Firm was able to show that a tractor trailer veered into the shoulder where another tractor trailer was legally stationed causing great injuries and property damage. In accidents where injury resulted from a wheel or auto part coming of a vehicle, courts have inferred negligence.

In San Antonio and greater Bexar County, we often see injuries occur where a car comes to a stop on a highway without a collision or where the motor vehicle turns over on a highway without a preceding event. Oftentimes, we see objects such as cargo, equipment, or furniture fall from a vehicle causing injury. If you can believe it, there have even been cases of parked cars accidentally starting and causing collisions. Many of these cases fall under res ipsa loquitur.

There are some cases where negligence is not automatically presumed. Courts have frequently rejected the presumption in cases where an injured party tried to hold the owner liable from a tire blowout accident.

Another major topic is under what circumstances we can hold an owner liable for the negligent operation of a motor vehicle that is driven by someone else. In general, an owner who gives his express or implied permission to another person is ultimately also responsible if that person negligently hurts another person. Baseluos Law Firm sees this scenario often. The operator of the vehicle will carry some minimal amount of liability insurance while the owner of the vehicle possesses a much larger liability policy with umbrella limits that can greatly help the seriously injured. A Texas car accident attorney will do preliminary investigation into the liability limits of both the owner and operator to effectively gauge proper monetary compensation for their client. Investigative efforts should also be made to identify ALL owners of a vehicle since the vehicle at issue may have multiple owners with insurance coverage.

Another key concept involving the owner versus operator relationship is the concept of agency. An owner is liable for the negligent operation of a vehicle by an agent or employee which occurs in the course of agency or employment. For example, a vehicle driven by the employee of a dealership gets into an auto accident while using the vehicle to transport some passengers. The dealership business in addition to the actual driver is responsible. Often times, these businesses carry commercial vehicle injury coverage. There are exceptions. For example, taxis are often operated by independent contractors and their owners are less likely to be liable. On the positive note, taxi or livery drivers carry insurance with the higher commercial limits.

The concept of agency stretches to family cars in which owners can be held responsible for the careless driving of a family member, an extremely common scenario in San Antonio.

Another common situation occurs when the vehicle operator is a mechanic employed by the owner to repair the vehicle. For example, we hear of mechanics picking up vehicles to be serviced; driving the vehicles back to the service shop after picking the vehicle up from the owners; test-driving the vehicles both when they are requested specifically by the owner to do such tests and when they are not specifically requested; driving the vehicles back to the owners after repair; or in some bizarre cases, using vehicles for their own personal use. In every one of the aforementioned scenarios, the mechanic can get into an accident with the owner’s vehicle. Can the owner be held liable for the mechanic’s negligence ?

In most cases, the law says no. The mechanic is considered an independent contractor, free from any control of the owner. In some cases, however, the owner may still be held liable if the owner is deemed to have consented to the mechanic’s operation or in some cases if the owner knew or should have known the mechanic was an unsafe driver.

These types of scenarios are quite uncommon. The most common scenario is where an employee negligently commits an accident with a car owned by his employer. The only remaining question is whether the employee was within the scope of his employment when he operated the vehicle. Baseluos Law Firm is well versed in these types of cases and often can get high rewards for client due to the likelihood of a commercial auto policy.

The first step in successfully prosecuting commercial vehicle accidents is to establish an employment relationship as opposed to an independent contractor relationship. Even if the trucker is an independent contractor, liability can still be bestowed on the company that owns the truck. In strictly looking at an employer-employee relationship, we can bestow liability on the employer if it can be shown that employee was acting within the scope of their employment. More often than not, this is not that heavy a burden to overcome.

Filling up an employer’s vehicle with gas or water is considered within the course of employment. We often see employees mix their personal business with their employment duties and in that case, such behavior is still within the realm of employment and the employer can be held liable for the employee’s negligence. Occasionally, Baseluos Law Firm will run into situations where the employee takes a ‘detour’ from official business. If the employee was acting for his own personal affairs, then he may be outside the scope of employment. However, if the employee is still somewhat acting on behalf of his employer or starts back on his normal course, then an argument can be made against the employer. Some courts look at the degree of deviation from normal course of employment, and sometimes an argument can be made that such deviations are minor and foreseeable and should not absolve the employer from negligence.

A trucking accident attorney must show the employee had the employer’s express or implied permission to use the vehicle at issue. A lot of Texas jurisdictions take the approach that it is presumed that a vehicle owned by an employer and driven by en employee was done in the furtherance of the employer’s business and the debate stops.

Baseluos Law Firm will often investigate whether the route taken by the employee is related to the business destination. This is a sure fire mark of employer liability even if the employee did not take the same exact route demanded by the employer. If an employee is negligent and causes injury by using a motor vehicle for personal use before or after business hours, it becomes tougher to hold the employer negligent. However, if the employee is furthering the business of his boss, liability can still be established even if the accident occurred outside work hours. Going to and from employment is normally not considered within the scope of employment. However, exceptions to this rule can occur if the employer is paying the worker’s mileage or transportation expenses. The same concept applies to the employee’s transit to and from restaurants .

Employers are generally not responsible for the intentional actions of employees such as an assault on another driver. If the employee driver is intoxicated, there may be a basis for imposing liability on the employer.

Baseluos Law Firm employs a variety of investigative techniques when prosecuting San Antonio commercial vehicle accidents including:

• Determining ownership of the vehicle and the purpose of use;
• Determining the ultimate destination of the employee, where the auto originated from, and the most direct route of travel;
• Determining any and all stops and purpose of each stop;
• Preparing a timeline of when the trip began and the various length of each section of the trip and its stops;
• Investigating the exact instructions given to the driver;
• Probing the employment history of the driver at fault including the length of time of their employment and all their supervisors;
• Obtaining key information on the accident itself including all retails related to the collision and all actions done on the date of accident;
• Investigating the exact duties of the driver at fault, their hours of employment, the employer’s awareness of the driver’s actions and use of the vehicle, and any financial reimbursement related to the vehicleAs you can see, much goes into successful prosecution of commercial vehicle accidents.

Establishing employer liability for an employee’s negligent driving and thereby invoking the higher coverage of a commercial policy is critical especially in the face of devastating injuries from trucking accidents.

In our prior post on driver liability in San Antonio auto accidents, we discussed the theory of negligence and how it applied in some of the common auto accidents we see in San Antonio and Texas. Today, we would like to discuss how violations of traffic laws tie into proving negligence on the part of another driver and pedestrian injuries at the hands of negligent drivers.

There are times when a driver’s violation of traffic laws rises to liability. These are quite frankly the best cases especially if the driver is cited by local or county police on the scene. If the driver pleads guilty and pays a fine, such evidence can be used to demonstrate negligence. Baseluos Law Firm will often contact the local district attorney and county clerk to determine the status of a ticket. If necessary, certified records of the driver’s plea in criminal traffic court can be used at a civil trial to prove negligence.

In many jurisdictions in Texas, the ‘rules of the road’ represent commonly accepted standards of driving, which when violated, can provide the basis for establishing liability in court. The other driver, passenger, or pedestrian who is injured is most often a member of the group of people the traffic laws are designed to protect. To prove liability, it must be shown at trial that the violation of the traffic regulation caused the injury. Juries will receive what is known as a ‘statutory charge’ outlining the presumption of the violation of the law and automatic liability.

In San Antonio and Texas, there is a concept in law known as ‘negligence per se’ in which violation of a traffic statute automatically constitutes negligence. A classic example is the rear end accident which assumes driver inattention. The defendant in these cases must then show there was some factor beyond their control which caused the violation. Classic examples include unforeseen equipment failure or some unpredictable driving action that caused loss of control (example – evasive action to avoid a vehicle that crosses into oncoming traffic). Baseluos Law Firm is very familiar with these types of defenses and will fight these defenses especially if a driver reacted to conditions that were foreseeable. The key term of foreseeability stops a lot of vehicle impact defenses in their tracks because juries have little sympathy for drivers whose lack of planning or anticipation severely hurts people.

More often than not, we see many pedestrian injuries from careless drivers. A motor vehicle driver owes a duty to pedestrians moving along a highway or street to exercise reasonable care to avoid injury and ensure safety. This requires drivers to anticipate the presences of people along a highway or street. At the same time, pedestrians must be on the lookout for vehicles, but unless the pedestrian is in the middle of the road, drivers have a greater duty.

The driver generally has right of way over pedestrians crossing outside a marked crosswalk or intersection, but even having the right of way does not absolve the driver from using reasonable care. In contrast, even though pedestrians have a right of way at intersections and marked crosswalks, they still have a duty to exercise reasonable care. Children especially present a special case – drivers are expected to assume children will act well like children. A motorist driving in San Antonio especially in school zones has to anticipate that a child may suddenly run out in front of an oncoming vehicle.

Baseluos Law Firm can assist child victims of driver negligence especially when the accident occurs near a school or playground, near a school bus, or on a street where kids frequently play. Injured children in San Antonio car accidents are especially heartbreaking and require aggressive litigation.

A word should be mentioned about Texas guest statutes. A ‘guest’ is a person who accepts transportation services of an owner or operator of a vehicle without giving any benefit such as money in return for the service. In Texas, there is a prohibition against obtaining compensation against the the driver of a vehicle if the passenger of a vehicle is closely related to the driver. For example, a child generally cannot sue a parent or grandparent who negligence causes injury to the child. There is an exception however if the accident was intentional or done with reckless disregard for the safety of others. Guest statutes were originally enacted to prevent fraud between guests and operators of vehicles to defraud liability insurers.

When investigating a negligence in an auto accident, it is imperative to show that the person failed to exercise ordinary care. The degree of care we expect from the operation of a motor vehicle accident can vary. In Texas, particularly in San Antonio, the degree of care we expect varies with the condition of the road, weather conditions such as rain, and the presence of children.

Negligence in the operation of a car can also be measured by a driver’s violation of traffic laws. A ticket given at a scene by the San Antonio police is a tell tale sign that there is negligence, and makes for a strong case. Sometimes drivers can be considered negligent even if they operate within the law. For example, during a torrential rain on a slick road, San Antonio drivers may still be held negligent even if they drive within the speed limit. The question is whether the driver drove at a speed that was reasonable and proper under the existing traffic conditions. A driver can be driving within the speed limit and still be held liable for driving too fast under the conditions.

Moreover, there is a legal principle that a driver or pedestrian does not have to anticipate the negligence of another driver. Unless a person knows that a motorist will not be exercising due care or following traffic regulations, there is a presumption that other drivers will follow the laws and exercise reasonable care. Keep in mind that this principle does not apply to a minor child near a roadway. You should not expect such a person to know the traffic laws.

So what does exercising reasonable care mean ? Often for local and greater San Antonio drivers, it means keeping your vehicle under control at all times so as to avoid dangerous contact with vehicles and pedestrians. There have stories of drivers in Bexar County losing consciousness, and causing an accident. It may be due to an unforeseen heart attack, stroke, epileptic seizure, diabetic attack, or fainting episode. The sudden loss of consciousness can be a viable defense but the critical question is whether such a medical condition was foreseeable. The concept of foreseeability is critical when a San Antonio auto injury lawyer is faced with such a defense. For example, was the driver aware of the medical condition that caused the incapacity ? Did he take any medications for the condition ? Had there been prior incidents of loss of capacity ? Did any physician warn the person not to drive ? Were there any advance warnings the person would have experienced prior to becoming incapacitated? These are just some of the major areas a good auto injury attorney will explore when faced with such a defense.

Baseluos Law Firm is very experienced in the handling of auto claims, particularly in the initial investigative stages. Reviewing police reports combined with interviews of the investigative officer and witnesses are critical tasks. An attorney should never assume that there is no question of liability. In practicality, in a motor vehicle collision, there has been some violation of traffic laws, but one should never assume negligence is automatically the result.

Baseluos Law Firm is especially adept at handling common motor vehicle accident cases, such as the all too common rear end collision. In Bexar County and Texas, whenever a vehicle rear ends a vehicle in front of it, the driver of the vehicle is automatically presumed at fault. Drivers in these situations will try to deflect responsibility by claiming they had the vehicle under control, had clear view of the vehicle ahead, and followed at a safe distance. We often see defendant drivers claim that the vehicle in front came to an unexplained sudden stop, which precipitated the accident. That is when the firm must work to show additional evidence of negligence, such as a driver talking on their cell phone immediately prior to the accident. The law firm will pull phone records and do exhaustive investigation as most defendants will not readily admit this.

Other types of accidents besides a rear end collision, involve clear liability.. Those include collisions where the defendant crosses into the plaintiff’s lane; a left-turning driver who impacts an oncoming vehicle; and driving through a red light. Some accidents do not easily translate into driver liability. For example, we cannot assume negligence in San Antonio from a driver skidding on a wet road unless there is some other negligence involved such as driving too fast for road conditions.

Other types of accidents are not as clear cut and a law firm must do extra digging to establish liability. Intersection collisions are especially difficult and more often than not both drivers are negligent to some degree.

Finally, we tend to believe that negligence in San Antonio car accidents belongs to the driver operating the vehicle. Yet one has to think outside of the box – for example, the owner may have negligently entrusted the vehicle to an intoxicated or incapacitated driver or perhaps the owner failed maintain the vehicle’s safety features like brakes. The mechanic who repaired the vehicle may be liable for example if the brakes failed.

The third category of valuation damages is the actual or intrinsic value to the owner, which is a type of damages that is only applicable where market or replacement value cannot be calculated. For example, property that provided for the comfort and well-being of the owner does not have market value, but may have intrinsic value. Common examples of items with actual or intrinsic value are clothing, furniture, and photo albums.

As you can probably conclude, actual or intrinsic value is generally not used to measure damages in auto accident cases, unless there are some very unique circumstances. Intrinsic value is the value of the property to the owner, excluding sentimental value (another category of damages we will cover later on). The actual value of an item is not restricted to the item’s market value at the time of loss. Basically, it’s incredibly difficult to put a market or replacement valuation on household goods, clothing, and personal effects. For example, in one case a Texas court ruled that damages to the contents of a mobile home do not need to be based on market value.

To prove actual / intrinsic value, the injured party will testify about the value of the damaged property as the owner. Generally, various forms of evidence can be introduced to clarify the property’s value including its condition before the damaging event, the original cost, age, level of use , cost of replacement, and possibly experts.

A San Antonio negligence attorney will actually state in the petition for damages that market and replacement value measures of value will not adequately compensate an injured plaintiff. Generally, courts do not require an injured party to prove household goods, clothing, and personal effects have no market value.

What is interesting is the ever rising use of online auction sites like Ebay . The idea that somehow household goods, clothing, and personal effects may not have market value or a replacement value may be going the way of the dinosaur. An experienced Texas injury lawyer will confer with his clients about the prices certain household goods may be fetching on these online auction sites.

The final category of valuation damages is sentimental value, the fallback where market value, replacement value , and actual value do not apply. Keep in mind that sentimental value takes into account the owner’s special feelings about the items. Examples of damaged property for which Texas courts have allowed the recovery of sentimental value include family heirlooms, items belonging to grandparents or earlier generations, pictures, birth records, trophies, and wedding pictures. Baseluos Law Firm will confer about the client’s sentimental feelings and put the opposing party on notice that the plaintiff will be seeking sentimental damages.

more Proving sentimental value rests in demonstrating the property had special value as an heirloom. Sentimental value is not an appropriate measure of damages for household goods or clothing. To prove sentimental value, the owner would testify about the item as an heirloom and give a jury a proposed dollar figure. The plaintiff does not have to prove that heirlooms have no market value.

In the last three blog entries, we have discussed the various subcategories of valuation damages including market value, replacement value, actual / intrinsic value, and sentimental value. In our next blog, we will focus on a separate category of personal property damages – repair damages which encompasses cost of repair and loss of use.

Keep in mind that valuation damages can be awarded only if the property is entirely destroyer or partially damaged – these damages work in auto accidents. Repair damages are only applicable if the property is partially damaged and capable of being repaired.

To prove market value (defined as the difference in the value of the item immediately before and immediately after the collision), an injured party can offer either his/her own personal testimony or that of an expert provided the testimony deals with market value as opposed to sentimental value. The witness must be familiar with the market value of the property and the value must be measured at the time of the auto accident, not the value at time of trial.

A market value witness can introduce common appraisal guides like Kelley Blue Book which publishes automobile vehicle valuations as well as before and after photographs of the damaged vehicle.

Another critical component to proving market value is to introduce the repair bills to prove the difference in market value before and after the collision. The argument here is that the vehicle repair would ultimately make the vehicle like new or restore the car back to full working mode. Therefore, the cost of repairs becomes the primary evidence of loss in market value. The collision repair estimates then represent the difference in value before and after the car accident.

There are certain proposed measures of damages which the Texas courts have ruled are inadmissible as a means of proving market value including the purchase price of the vehicle (cars depreciate) and any amount remitted by the insurance company for losses. If market value is not a viable option, the next category of valuation damages is replacement value, meaning the cost of replacing the car or reproducing the damaged goods. The cost of replacement is reduced by any enhancements or upgrades to the vehicle which were not present before the accident. In addition, the damages must be reduced by the depreciation of the original vehicle and the salvage value. So a vehicle that is 10 years old which is totaled in a San Antonio car accident could theoretically be replaced by a newer vehicle. However, replacement value would be reduced by the decrease in value due to depreciation and any salvage value of the original property.

more To prove replacement value, the injured party can offer their own personal testimony or that of an expert concerning the cost of replacing damaged property. Testimony would consist of discussion of the condition and value of the property at the time of the accident, the initial cost of the vehicle, the cost of buying an equivalent replacement vehicle (using an appraisal guide like Kelley Blue Book), and the condition and value of the replacement vehicle.

In our next blog entry, we will discuss some alternative methods of valuating damages when market value or replacement value are not viable options. A San Antonio car accident lawyer can assist you with your property damage and auto accident injury claims in San Antonio and Austin.

So what exactly is market value ? Texas cases define market value as the price the vehicle would fetch if it were offered for sale. In the event of a car accident, the market value is the difference in value of the vehicle immediately before and after the collision. In cases where the vehicle is completely destroyed, then the damages are measured as the value of the vehicle just before the accident minus the salvage value. This is why that more often than not, in the case of older vehicles, after an accident , the most you will receive from the insurance company is the salvage value of the vehicle where the repair costs far outweigh the market value.

The county where the auto accident occurred is the marker for determining market value. As such, an Austin car collision might be valuated differently than a San Antonio auto damage case. I have referred to some different ways for determining valuation damages. There are certain types of property that will be subject to this market valuation method i.e. the difference in the value of the item immediately before and after the damage. For example, Texas courts have stated automobiles, machines and equipment, and even animals are subject to market valuation methods for loss valuation. Interestingly, an owner can recover for the death or injury of a beloved animal in a San Antonio auto collision.

Although many owners who lose an animal in a car accident would vehemently argue for the sentimental value of their treasured animals, the recovery for an animal’s death is limited to the market value. Sometimes, in the cases of animals that have high monetary value for their special characteristics or usefulness, the owner can bypass market value and obtain a greater recovery. For example, seeing-eye dogs or dogs with unique breeding potential have been assessed actual values based on their monetary value. Unfortunately, owners cannot obtain a monetary recovery for the pain and suffering related to an animal’s injury or death.

The cost of repair is another component of market value. In certain cases, an injured plaintiff can recover repair damages in addition to market value. Texas courts have ruled that when market value is determined before repairs are made, an injured party can recover either the cost of the repair of the lower difference in market value. Both market value and cost of repairs however cannot be recovered when the market value is assessed before the repairs are done. Where the market value is determined after the repairs are made, then an injured party can obtain both the cost of repair and the difference in market value.

This may be a little confusing given the last paragraph. The best way to explain this concept is that the cost of repair is not the same as a loss of market value if the market value is based on a comparison of the property before damage and the value after repairs. If you believe an insurance company is not properly compensating you for the loss of damage to your vehicle, Baseluos Law Firm can assist you with both your auto injury and property damage claims. In our next blog entry, we will discuss methods of proving market value and other methods of valuating property loss in Texas collision and negligence cases.

There is a distinction between loss of earnings capacity damages and loss of earnings damages. In contrast to loss of earnings capacity, to obtain loss of earnings damages, the wrongful death plaintiff must demonstrate with reasonable certainty that actual amount of lost past earnings. It must also be shown that the plaintiff who was killed had capacity to work prior to the injury and the injury seriously hurt that capacity. Moreover, any past employment that can illuminate what the plaintiff’s future earnings could have been can be introduced. Evidence of the weaknesses and degenerative nature that resulted from personal injury and plaintiff’s work-life expectancy are additional factors. Medical and funeral expenses, pecuniary losses, loss of inheritance, loss of earning capacity, and loss of earnings are some of the economic damages a Texas wrongful death lawyer will pursue for you in a San Antonio serious personal injury accident or malpractice claim.

Since January 1, 2009, there have been several important developments affecting motor vehicle accident personal injury litigation in San Antonio and greater Texas . Specifically, the Texas legislature updated the minimum limits for auto insurance to $25,000 for injuries per person for policies written after April 1, 2008 and $50,000 per accident if more than 1 person is injured. There is a $25,000 minimum coverage for property damage for policies written after April 1, 2008 with allowances of a $250 deductible per person injured or for property damage and $500 per accident. See Tex. Transportation Code § 601.072. In a recent San Antonio accident San Antonio car accident involving a dump truck and eighteen-wheeler (18 wheeler), the Court of Appeals upheld a jury verdict against the dump truck driver and his employee. The court ruled that had the employer followed the law and contacted the driver’s former employee, he would have discovered the driver’s multiple speeding citations and positive drug test for cocaine. Moreover, the court upheld the award of $400,000 for pain and suffering, because it appeared the driver was at least conscious while his vehicle spun out of control and was aware he would soon die. In another auto accident case, drivers brought suit against the Texas Department of Transportation for deaths and injuries caused by loose gravel on the road. The Texas Supreme Court ruled that loose gravel was not a special defect under the Texas Tort Claims act, and the TxDOT did not owe a invitee standard of care to drivers.

If you have been in an auto accident, do not delay. Contact a San Antonio injury auto accident lawyer today.

In San Antonio and greater Texas, there have been several key personal injury cases in the area of premises liability in 2009. In one case, a guest at a condominium severed his finger while sitting in a pool-side chair. The court held there was no evidence that the condo association had actual or constructive knowledge of the broken weld in the chair. A San Antonio personal injury attorney can aggressively pursue evidence of constructive or actual knowledge in premises liability cases. In a case against the City of San Antonio alleging benzene exposure from a nearby closed municipal landfill, the Texas Supreme Court found there was no expert evidence as to the level of benzene in the plaintiff’s daughter. There were also questions concerning the association between the mother’s exposure to benzene and the daughter’s leukemia in utero. Oftentimes, benzene lawsuits in Texas hinge on the quality and strength of expert opinions on causation. In another case, a contractor sued for personal injuries against the San Antonio property owner when he fell through the roof while trying to repair an air conditioning unit. The court denied the property owner’s motion for summary judgment, because the plaintiff’s claim arose from the condition of the roof, not the air conditioner.

In another case out of Corpus Christi, the estate and family of a deceased inmate brought a Texas wrongful death action against a private correctional facility after the inmate was murdered by two inmates. Allegedly, the prison guards did nothing to stop the attack and the prison wardens laughed. $47.5 million was awarded in actual and punitive damages. The court held there was sufficient evidence to show negligence, and it supported the trial court’s spoliation instruction concerning the destruction of the prison’s surveillance tapes.

There have been several cases throughout the country that have given some clues as to how the courts interpret police behavior, especially when it is the suspect and not the police themselves who directly causes a collision. In a case in Sacramento CA, the court found that there was some evidence to suggest that the officers had created a dangerous situation in their pursuit of the suspect. For example, the police failed to turn their red lights on and the injured plaintiff indicated that he never heard any police sirens despite the fact that he had his windows rolled down and the radio was off.

In an action against the city of Pasadena CA, the court ruled that under the circumstances, there was enough evidence to bring a cause of action for wrongful death against the city. In that case, the officers pursued a suspect solely for a traffic infraction on city streets in excess of 100 miles per hour.

In another case against the city in Compton CA, officers stopped a motorist without identifying themselves as law enforcement and began brandishing guns, causing the motorist to flee in panic and collide with the plaintiff’s vehicle.

In a Connecticut case, contrary to their pursuit policy, the police chased a suspect at high speeds the wrong way down a one-way street causing the pursued vehicle to strike the plaintiff’s vehicle.

In some cases, the question becomes whether the driver of the pursued car was driving in a reckless manner and endangering the public before the police began to chase him. In such a situation, the failure of the police to engage in a chase would have presented a substantial threat to public safety. The other question is whether the pursuit in itself was exceptionally hazardous under the circumstances. A chase in a rural area with no businesses or residences where the police are traveling only 5-15 miles per hour over the speed limit would not fit under the category of exceptionally hazardous. In a case against the City of New Orleans, the court ruled that driving over the speed limit in the pursuit of a suspect was not considered negligence per se (i.e. automatically negligence).

However, in a case against the city of West MS, the court ruled that officers chasing a suspect through residential neighborhoods at speeds in excess of 80 to 100 miles per hour and where a plaintiff’s residence was damaged by the suspect’s out of control vehicle was enough to state a cause of action against the city.

In an upstate NY case, the key question for the court was whether officers acted in reckless disregard for the safety of others. Some key questions are how far police officers were from the fleeing suspects; the conditions of traffic (heavy or light); whether police tried to overtake the suspect’s vehicle or force it from the roadway; and how close the police were from the collision and the speed of the officers at the time.

Another key question is whether the city / municipality had properly trained its police force as to high-speed police pursuit and the alternative use of warrant arrest procedure.

If you or a family member have suffered serious personal injury or Texas wrongful death from a San Antonio police chase , immediately contact a San Antonio personal injury lawyer .

The ultimate question in such a situation is as follows: Is the police officer or the Texas county municipality responsible for his conduct liable for a Texas wrongful death or personal injury caused by a vehicle being pursued by the police ?

The answer is … it depends. For example, in Draper vs. Los Angeles, the court ruled that while the police pursuit may have contributed to the reckless driving of a fleeing individual, the officers did not have a duty to allow him to escape. In addition, the court ruled that there was no requirement on the part of officers to warn other drivers to keep out of the way, and there was no evidence that the police were trying to force the fleeing individual to the curb.

In Pagels vs. San Francisco, the court ruled that the police had a duty to operate their vehicles with due care, and it made no difference whether the pursuit was close or near at the time of the collision with the other vehicle.

In contrast, in Myers vs. Town of Harrison, the widow of a taxi driver who was killed by a fleeing driver chased by the police, filed suit on behalf of her husband’s estate. The pursued vehicle driver had been in a minor accident just prior to the chase. The court ruled that evidence of wet weather and road conditions over the course of the route of pursuit and the incredibly high speeds involved backed up the claim that that the police acted negligently. It did not matter that the police later determined after the accident that the vehicle had been stolen.

There are certain elements that go into a determination of whether a police pursuit is negligent where the fleeing driver’s reckless driving causes a San Antonio auto or truck accident .

– How long was the length of the high-speed chase?
– What were the road conditions?
– What was the time of day of pursuit?
– Was the driver of the pursued car driving in a reckless manner and endangering the public before the police began to chase him, creating a situation where the police had to act to protect the public safety?
– What was the proximity of the nearest police vehicle in pursuit just prior to the collision?
– What were the speeds of the vehicles involved in the pursuit?
– Was the police officer negligent in his conduct of the stop and pursuit? (Example: the officer allows the suspect to leave the car ajar and engine running at the time of the stop and left him unrestrained, allowing him to escape.)
– Did the police flash and sound their sirens during the course of the pursuit so as to alert innocent drivers / pedestrians?
– Did the police violate their own department’s pursuit policy?

The ultimate question in which these factors play a role in answering is whether the police should have abandoned the chase out of consideration of safety to the public.

In our next blog, we will discuss some additional cases in which the police and the governing municipality were in fact found negligent for an accident caused by a fleeing driver during a police chase.

A negligent police chase in San Antonio and greater Texas can occur whether the police impacted your vehicle or acted negligently so as to indirectly cause another driver to injure you. Whether you have been affected in a personal injury car accident or a San Antonio wrongful death trucking accident, contact a San Antonio personal injury lawyer without delay.

Imagine you or a loved one is properly seat belted and your vehicle rolls over. Now you are facing complete disability as a quadriplegic. A Texas personal injury serving Texas and San Antonio is needed to effectively prosecute these types of manufacturing defects.

One of the most glaring defects is a defectively designed roof. A roof is considered excessively crushed when the crush measures more than 4 inches. The most amazing thing is that these roofs actually meet Federal Motor Vehicle Safety Standards, which represent the baseline. However, the fact that these roofs meet the federal standards does not pre-empt a suit for personal injury damages.

The history of standards on vehicle roof crush standards is very ironic. When the roof crush is designed in such a way that it does not exceed four (4) inches, a seat belted individual (or even a non-seat belted individual) would not likely suffer rollover injury even when the vehicle exceeds ninety (90) miles per hour.

In fact, the now bankrupt General Motors (GM) at one time possessed the goal of manufacturing vehicles that would not roll over up to 65 mph. Yet the Federal Motor Vehicle Safety Standards were modified so that the Federal standard on the crush limit for roofs was greater than 4 inches. Thus, auto manufacturers like GM had little incentive to build SUVs with roofs that did not exceed roof crush limit of 4 inches.

With the rise in gas prices, the decrease in SUV sales, and the increasing emphasis on safety, one hopes the National Highway Traffic Safety Administration will lower the roof crush limit to a safe level. Recently the United States Department of Transportation (USDOT) has imposed much stricter roof standards, doubling the requirement for light vehicles weighing up to 6,000 pounds. Now, the roof protecting both the driver and passenger sides must be able to withstand a force equal to 3x the weight of the vehicle. For vehicles between 6,000 to 10,000 pounds, the roof has to be able to withstand a force equal to 1.5x the weight of the vehicle. See the USDOT news release.

These types of vehicle rollovers and roof crush are absolutely unacceptable, and a Rollover Personal Injury attorney can assist you with prosecuting this case with the right mix of investigators and experts.

Why does this happen? First, the side roll down windows are made of glass that will disintegrate into thousands of small pieces facilitating ejection. Yet the fact of the matter is that the glass should possess an interlayer of plastic to guard against ejection i.e. a form of laminated glass. When auto makers do not employ this laminated glass, they place occupants at great risk of ejection – all in the name of saving less than $20. It is a design defect for which they should be held accountable.

In the last 30 years, auto makers have done crash tests on vehicle with unseatbelted dummies. When laminated side glass windows are used, the dummies are not ejected. Laminated glass side windows are just as safe as the older, more dangerous design.

A San Antonio and greater Texas personal injury attorney will be able to guide you through the tragic consequences of ejection as a result of the failure to use laminated glass.

Why do we hear about passenger and drivers being ejected out of a vehicle during an accident? What happened – how are they ejected through the car doors?

The answer is simple : the door latches unlatch due to particular inertia forces caused by the accident or a compression of the rod in the door latch as a result of the twisting of the vehicle. Yet a San Antonio and greater Texas personal injury attorney will tell you that door latches are simply not supposed to come unlatched during a car crash. If the door came open when a vehicle went through a rollover or an accident in general, then there is most certainly a design defect in the latch.

Can you believe that the auto industry has known for decades about a solution to keep door latches from unlatching ? The solution is called a Bowden cable – it costs less than $10 and is a suitable substitute for the customary rod in the door latch setup. Manufacturers have also developed door latches that will not be affected by inertia forces.

It is imperative to preserve evidence and consult with the necessary greater San Antonio and Texas legal experts when you or a loved one have suffered devastating injury as a result of being ejected from a vehicle.

Throughout San Antonio and greater Texas, stories abound of deadly vehicle fires, that burn, maim, and ultimately kill drivers and passengers. There are many potential explanations behind vehicle fires. Some of the most common defects include electrical problems, leakage of gasoline from the fuel lines, and the ignition of transmission fluid. A strong Texas auto accident personal injury attorney will be able to pinpoint automotive defects including defective electrical devices, transmissions, and/or ignition switches.

It is a well known fact that the automotive manufacturers do not adequately protect the gas tank, which can inevitably cause the gas tank to be punctured and lead to fuel ignition. An automobile must be designed with effective inertia shutoff devices which stop the flow of fuel druing a crash. Ultimately, vehicle fires are a preventable occurrence if the car is adequately designed.

If you or a loved one have been seriously injured by a vehicle fire, consult a Texas personal injury attorney to guide you through the process of preserving evidence and retaining the right experts to defend your claims.

Unfortunately, the crash impact can actually cause the seat belt to detach without any evidence of damage. After the accident, the seat belt functions without a problem, and there are no stress signs on the webbing of the belt, plate where the belt latches, and the metal D-ring.

Do not fret – even if a traffic investigation report reflects that the seat belt was not worn, you may in fact have a good seatbelt defect case .

The phenomenon behind seat belt defects lies in the application of G forces created by the crash. The G forces create enough energy to move the buckle with vibration. The vibration can effect the spring that latches the buckle, in effect forcing the button to release the seat belt to move downward. A passenger’s hip can also create enough force to unlatch the belt.

The unlatching of the seat belt is known as ‘inertia unlatch’. Seatbelts can be designed in such a way that inertia unlatch does not occur – yet, ironically auto manufacturers will not implement these latch designs. During a crash, an occupant can be subject to severe abdominal injuries when their body moves under the lap belt. In addition, some seatbelts do not lock during crashes because of defects in the seat belt retractors.

Even in rollover accidents, investigators will find the retractors on the seat belts will lock and unlock multiple times. The slack in the seat belt caused by defective retractors can be extremely dangerous.