Bruce Kaye Criminal Defense Attorney Dallas, TX, Personal Injury, Entertainment Law

PERSONAL INJURY ATTORNEY IN DALLAS, TX

The point of hiring a good personal injury attorney is to try to get the most compensation possible for serious injuries. The goal is to seek the most amount of compensation possible so you can return to the life you lived prior to the accident. Injury victims have been through something traumatic, and I will give their case my full time and attention.

When you’re injured, the first goal is healing. Unfortunately, receiving proper healthcare can be quite costly. Many injuries require hospitalization, as well as physical therapy, chiropractic treatment, and counseling services for months or years to come. Furthermore, you may lose wages during your time off from work, and there’s always the possibility that you’ll never again be able to return to your previous position, putting you in a bind economically. Combat these issues and more by taking legal action.

If you’ve been the victim of someone else’s negligence and have suffered serious injuries, you have the right to seek justice, and I’m here to help you do so. Schedule a complimentary consultation with me today to learn what your next step should be.

BRUCE KAYE, ATTORNEY AT LAW

How Do I Know if I Have a Case?

Personal injury cases are evaluated based on negligence, which is otherwise defined as carelessness. Therefore, even if the other party had no ill intent, if you can prove they failed to act responsibly, they can be held liable for your injuries. This means they may be held accountable for your medical bills, attorney fees, and compensation for your pain and suffering alone. The best way to find out if you have a case is to contact my office right away so we can discuss your facts. Remember, in Texas, you only have 2 years from the date of the accident to file your lawsuits. If you miss it, you will be barred from filing your lawsuit.

What are Some Examples of Negligence?

Negligence is more common than you may realize. We simply often fail to acknowledge it until it has led to an unfortunate situation. Here are a few instances you’ve likely witnessed first-hand: 

  • Speeding
  • Distracted driving
  • Operating a vehicle under the influence of drugs or alcohol
  • Work sites that fail to abide by proper safety precautions

What if I Can't Afford an Attorney?

Because you are already facing a difficult time physically, emotionally, and financially, you will not be asked to pay anything up front. In fact, you will only be charged if I recover payment on your behalf. This practice is commonly known as “contingency,” and I have found it to be of great benefit to my personal injury clients.

Therefore, if you at all believe you may have a case against someone, I encourage you to reach out to my firm. With no financial obligation, you have nothing to lose, and you might as well explore your options while you can. There are time limits on how long you have to file a personal injury lawsuit, and if you don’t investigate now, you may regret not doing so in the future.

Personal Injury Claims

Personal injury laws are designed to protect you if you or your property is injured or harmed because of someone else's act or failure to act. In a successful personal injury claim, the one who caused the injury or harm compensates the one who suffered the losses.

Every personal injury claim, regardless of its basis, whether intentional, negligence, or strict liability, has two basic issues—liability and damages. Was the defendant liable for the damages you sustained, and, if so, what is the nature and extent of your damages? If you can prove liability and damages, our system of justice will award you compensation for your loss.

Negligence is the basis for liability in most personal injury lawsuits involving car accidents, trucking accidents, and motorcycle accidents.

You have a negligence claim in a "fault" state if you are injured by a driver who failed to exercise reasonable care, because drivers have a duty to exercise reasonable care anytime they are on the road. If a driver fails to use reasonable care and as a result of that failure injures you, then the driver is responsible (liable) to you for those injuries.

Strict liability is an important and growing area of personal injury law. It holds designers and manufacturers strictly liable for injuries from defective products.

In these cases, the injured person does not have to establish negligence of the manufacturer. Rather, you need to show that the product was designed or manufactured in a manner that made it unreasonably dangerous when used as intended.

Intentional wrongs can also be the basis of personal injury claims.

  • If someone hits you, for example, even as a practical joke, you may be able to win a suit for battery.
  • Or if a store detective wrongly detains you for shoplifting, you may be able to win a suit for false imprisonment.

While perpetrators of some of the intentional personal injuries, such as assault and battery, can be held criminally liable for their actions, a personal injury case is a civil proceeding in court brought by an individual or entity and remains totally separate from any criminal charges brought by the government.

When you file a personal injury lawsuit, you become the plaintiff in the case and the person who injured you becomes the defendant.

Lawyers for each side (and for the insurer) typically begin gathering facts through exchange of documents, written questions (interrogatories) or depositions (questions that are asked in person and answered under oath). This process is called discovery. After discovery, many cases get settled before trial. Only a small percentage of personal injury lawsuits ever go to trial.

If you win a personal injury lawsuit, a judge or jury awards you money, known as damages, for your injuries.

  • The amount you are awarded can include compensation for such expenses as medical bills and lost wages, as well as compensation for future wage losses.
  • It also can compensate you for physical pain and suffering.
  • In addition, you may receive damages for any physical disfigurement or disability that resulted from your injury.

Settling a personal injury lawsuit means that you agree to accept money in return for dropping your personal injury lawsuit against the person who injured you. You'll actually sign a release absolving the other side of any further liability.

To help you decide whether to accept the settlement offer, your lawyer will be able to provide a realistic assessment of whether a personal injury lawsuit based on your claim will be successful. Settlement can take place at any point in a lawsuit once it is filed, including before trial or even after a case has been tried but before a jury reaches a verdict. The decision to accept a settlement offer is yours, not the lawyer's.

No. Punishment comes from criminal cases, not civil cases.

Defendants in civil actions for personal injury do not receive jail terms or stiff fines as punishment. Those are criminal sentences and personal injury cases are civil disputes. But juries and courts can award what the law calls punitive damages when the defendant's intentional acts have injured you.

The "statutes of limitations," govern the period during which you must file a personal injury lawsuit. Personal injury lawsuits must be filed within the timeframe of the statute of limitations. In Texas, you have 2 years from the date of the accident to file a lawsuit. If you miss the statutory deadline for filing a case, your case is thrown out of court.

Negligence is the basis for most personal injury lawsuits, from auto collisions to slips and falls.

A person is liable if he or she was negligent in causing the accident. Persons who act negligently never set out (intend) to cause a result like an injury to another person. Rather, their liability stems from careless or thoughtless conduct or a failure to act when a reasonable person would have acted. Conduct becomes "negligent" when it falls below a legally recognized standard of taking reasonable care under the circumstances to protect others from harm.

If a personal injury lawsuit on the basis of negligence goes to court, the lawyers for both the plaintiff and the defendant will present their evidence. After being presented evidence by the lawyers, a judge or jury will decide what an "ordinary" or "reasonable person" would have done in similar circumstances.

In the example of an automobile accident, a judge or jury is likely to find a driver negligent if his or her conduct departed from what an ordinary reasonable person would have done in similar circumstances. An example would be failing to stop at a stoplight or stop sign.

Texas uses a modified form of comparative negligence, also known as "proportionate responsibility." This means that if a jury finds that you are partially at fault for the injury, then your damages can be reduced.

For example, if a jury finds that you were negligent and that your negligence, proportionally, contributed 25 percent to cause the injury and that the defendant was 75 percent at fault, the defendant would only be responsible for 75 percent of your damages, or $75,000 if your damages totaled $100,000. 

If you were injured in a car accident involving a commercial truck or vehicle, you may be able to recover damages from both the driver and their employer. 

Under the law, employers may be held liable to third persons for acts committed by employees within the scope of their job. Although the employer was not negligent, they become indirectly liable for the negligence of their employee.

For example, if the car accident involved the driver of a commercial delivery truck, was the driver making a delivery when the accident occurred? If so, the employer is liable, since deliveries clearly are part of the driver's job. But if the employee first stopped at a restaurant for drinks and dinner with friends, the employer may be able to escape liability.

Personal Injury Law information provided courtesy of americanbar.org

Personal Injury Accident & Injury Laws

Texas may bring to mind ranches and cowboy hats, but these days the state is becoming most well-known for hosting the SXSW festival every year in Austin, Texas. While it might seem more complicated to identify the driver responsible for your injuries if you get into an accident with a self-driving car demonstrating its features, in most cases, Texas car accident compensation laws will likely allow you to recover damages for your injuries.

Texas “Fault” and “50% Modified Comparative Negligence” Laws

To recover damages for your injuries, you will need to prove that another driver was at fault for your injuries. If you took a turn a little too quickly right before another driver rammed your passenger door, you may still be able to recover because the State of Texas is a 'modified comparative negligence' jurisdiction. This means that the judge or jury will determine the levels of fault for all of the drivers involved in a car accident, and then as long as you were no more at fault than the driver you are suing, you will be able to recover damages. The Texas court will merely reduce your damages in proportion to your level of fault.

Statute of Limitations:

2 years (§16.003(a))

Limits on Damages:

• $100,000 if the accident occurred during the scope of a public's servant's job (§108.002)

• Liability limited for claims arising from community service (§65.106)

• Exemplary damages limited to greater of three sums (§41.008):

  • $200,000,
  • 2x the amount of economic damages + $750,000, or
  • 2x the amount of economic damages + the amount of non-economic damages

Other Limits:

50% Modified Comparative Negligence (§33.001)

Types of damages

Typically, when people think of car accident damages, they think of 'economic damages'. Economic damages are out-of-pocket expenses you might incur as a result of a car accident.

Some typical economic damages available:

  • Vehicle repairs
  • Lost earning capacity
  • Household services
  • Lost wages
  • Future medical expenses

Generally, non-economic damages are also available to injured parties. Non-economic damages encompass the hedonic damages, such as pain and suffering, disability, or loss of companionship that you or a loved one might suffer.

In rare cases, you may be able to recover exemplary damages if your injuries were caused by the willful act or omission or gross negligence of another driver.

Limits on Damages

Even if exemplary, also known as punitive, damages are available in your case, the State of Texas has a complicated method of limiting those damages. The maximum you will be able to recover in exemplary damages is the greater of three sums: $200,000, two times the amount of economic damages plus $750,000, or two times the amount of economic damages plus the amount of non-economic damages you were awarded.

If the party responsible for your claim was engaged in a city or county community service program at the time of the accident, Texas limits any damages you might receive from that city or county to $100,000 per person, $300,000 total per accident in the case of personal injury or death, and $10,000 total per accident in the case of property damage.

In all cases, Texas has a state-imposed limit for how long you can wait to file a lawsuit to recover damages for injuries suffered in an accident, also known as a statute of limitations. You can wait no longer than two years to file a claim for injuries to you and/or your personal property (such as your car).

Whether you're driving a pick-up truck or sedan, the possibility of getting into an automobile accident is always present, and there are certain circumstances where you must report the accident under Texas law. Specifically, you're required to report an accident to the Texas Department of Transportation (DOT) if your accident is not investigated by a law enforcement officer and results in either injury or death, or damage to property or vehicles exceeding $1000. You're also required to file a car crash report with the Texas DOT within 10 days of the accident if a police report has not been filed for it already.

State Statutes:

Texas Transportation Code § 601.004

When to Report:

If you're involved in a motor vehicle accident in Texas, you must report it to the Texas DOT if the accident is not investigated by a law enforcement officer and at least one person, including the operator, sustains:

  • Injury or death; or
  • Property damage more than $1000

How to File a Car Crash Report in Texas:

To file a car crash report with the DOT in Texas (which must be done 10 days after the accident), you, your insurance agent, the owner of the vehicle or your legal representative must complete the Crash Report (Form CR-2 also known as "The Blue Form") and submit it to the DOT. To fill out the Crash Report form or Form CR-2, you will need to supply or gather the following information:

  • Place and time of accident
  • The name, address, and date of birth of all motor vehicle operators involved in the accident
  • The driver license information (State of license, license number) of all motor vehicle operators involved in the accident
  • The driver's license plate number and state of all motor vehicle operators involved in the accident
  • The name and address of all policy holders and the name of their insurance
  • The name and address of all registered vehicle owners of motor vehicles involved in the accident
  • A summary of what happened during the motor vehicle accident
  • Weather and road conditions at the time of the accident

Exceptions to Texas Car Accident Reporting Requirements

If a Texas police officer already filed a report on the motor vehicle accident, then there is no requirement to file a car crash report in the state. Under Texas law, officers also have to report accidents that result in (1) injury or death or (2) damage in the amount of $1000 or more within 10 days of the accident.

Penalties for Not Reporting

Also under Texas law, you can have your driver's license suspended if you fail to make a report if another person in the accident sustained bodily injury, death, or property damage amounting to more than $1000.

 

Texas is a "fault" car insurance state, which means you may file an insurance claim or lawsuit against the at-fault driver. So every driver can be held liable for any damages and injuries he or she causes in a car accident (Sec. 601.051). Most people cover this by purchasing liability insurance with at least the following minimum limits (though a driver can be sued for expenses beyond these minimums covered by insurance) (Sec. 1952.0515Sec. 601.072):

  • $30,000 for each injured person;
  • $60,000 total for injuries per incident;
  • $25,000 for property damage

Additionally, although insurance companies must offer it, drivers may decline to purchase uninsured or underinsured motorist coverage as a part of their insurance policy (Sec. 1952.101).

Once you're home safe after an accident, you should file a claim with your insurance company as soon as possible, but you can check your policy to see what the exact deadline is. Additionally, don't wait to see a doctor, but do hold off on car repairs if possible -- your insurance company may want to inspect the damage or have you go to an approved repair shop.

The insurance company must accept or reject your claim within 15 days of receiving from you the necessary items for making a determination (Sec. 542.056). If they reject the claim, they must explain why; and if they accept any part of the claim, they must pay you within five business days (Sec. 542.056542.057).

Like most types of settlements , the willingness to settle and the amount offered after a car accident will depend heavily on the evidence supporting your case. For this reason, witness statements, police reports, and other documentation are extremely important. Settlement talks can continue even if a lawsuit is underway.

By law, insurance companies may not engage in unfair claim settlement practice, such as knowingly misrepresenting relevant facts or policy provisions, or negotiating in bad faith (Sec. 542.003).

To settle a claim, the insurance company may want you to sign a release which states that you won't file more claims related to the same accident. However, you should not do so until you're satisfied that the total settlement amount covers your damages, including future medical treatment as estimated by your doctor. Texas law prohibits insurance companies from postponing payment of a claim in order to pressure you into signing a release (Sec. 541.060).

What Is the Average Car Accident Settlement in Texas?

There is no exact formula for arriving at a car accident settlement amount since each accident is unique, but there are relevant factors to consider, such as the following:

  • The severity of your injuries: minor whiplash will be less than a permanent spinal injury
  • Costs of reasonable and necessary medical expenses
  • Loss of past and future wages
  • Whether you helped cause the accident: Texas follows the "modified comparative negligence" doctrine where damages are barred or reduced according to your degree of fault (Sec. 33.001 et seq.)
  • The types of insurance coverage both parties have
  • The amount of evidence and documentation you provide
  • Your or your attorney's ability to argue your case

How Long Do I Have to File a Car Accident Lawsuit in Texas?

If you and the insurance company cannot agree on the claim, you may have to file a lawsuit to pursue damages. The deadline (a.k.a. the statute of limitations) for filing a personal injury or property damage complaint is two years from the date of the car accident (Sec. 16.003).

The term "defamation" is an all-encompassing term that covers any statement that hurts someone's reputation, also called defamation of character. If the statement is made in writing and published, the defamation is called "libel." If the hurtful statement is spoken, the statement is "slander." Defamation is considered to be a civil wrong or a tort. A person that has suffered a defamatory statement may sue the person that made the statement under defamation law, which would be called a defamation case.

Defamation law walks a fine line between the right to freedom of speech and the right of a person to avoid defamation. On one hand, a reasonable person should have free speech to talk about their experiences in a truthful manner without fear of a lawsuit if they say something mean, but true, about someone else. On the other hand, people have a right to not have false statements made that will damage their reputation. Determining what is a statement of fact and what is a lie is called "absolute defense" and will end the case once it is proven. Then, the winning side may sue for punitive damages depending on the types of defamation.  

Elements of a Defamation Lawsuit

Defamation changes per state laws, but there are some accepted standards that make laws similar no matter where you are or who you are suing. Generally, in order to win your lawsuit, you must show that:

  1. Someone made a statement;
  2. The statement was published;
  3. The statement caused you injury;
  4. The statement was false; and
  5. The statement did not fall into a privileged category.

These terms and details are further defined below:

The Statement - A "statement" needs to be spoken (slander), written (libel), or otherwise expressed in some manner. Because the spoken word often fades more quickly from memory, slander is often considered less harmful than libel. These statements are especially damaging if they involve a public or private individual and sexual misconduct or the abuse of minors.

Publication - For a statement to be published, a third party (someone other than the person making the statement or the subject of the statement) must have seen, heard or read the defamatory statement. Unlike the traditional meaning of the word "published," a defamatory statement does not need to be printed. Rather, a statement heard over the television or seen scrawled on someone's door is considered to be published.

Injury - To succeed in a defamation lawsuit, the statement must be shown to have caused injury to the subject of the statement. This means that the statement must have hurt the reputation of the subject of the statement. For example, a statement has caused injury if the subject of the statement lost work as a result of the statement.

Falsity - Defamation law will only consider statements defamatory if they are, in fact, false. A true statement is not considered defamation. Additionally, because of their nature, statements of opinion are not considered false because they are subjective to the speaker.

Unprivileged - Lastly, in order for a statement to be defamatory, it must be unprivileged. You cannot sue for defamation in certain instances when a statement is considered privileged. For example, when a witness testifies at trial and makes a statement that is both false and injurious, the witness will be immune to a lawsuit for defamation because the act of testifying at trial is privileged.

Social Media and Defamation Law

Due to social media, it's now easier than ever to make a defamatory statement. That's because social media services like Twitter and Facebook allow you to instantly "publish" a statement that can reach millions of people. Whether it's a disparaging blog post, Facebook status update, or YouTube video, online defamation is treated the same way as more traditional forms, meaning that you can be sued for any defamatory statements you post online.

Higher Burdens for Defamation: Public Officials and Figures

Our government places a high priority on the public being allowed to speak their minds about elected officials as well as other public figures. People in the public eye get less protection from defamatory statements and face a higher burden when attempting to win a defamation lawsuit.

When an official is criticized in a false and injurious way for something that relates to their behavior in office, the official must prove all of the above elements associated with normal defamation, and must also show that the statement was made with "actual malice."

"Actual malice" was defined in a U.S. Supreme Court case decided in 1988, Hustler v. Falwell. In that case, the court held that certain statements that would otherwise be defamatory were protected by the First Amendment of the United States Constitution.

This meant that public officials could only win a defamation suit when the statement that was made wasn't an honest mistake and was in fact published with the actual intent to harm the public figure. Actual malice only occurs when the person making the statement knew the statement was not true at the time the statement was made or had a reckless disregard for whether it was true or not.

For other people that are in the public eye, such as celebrities, they too must prove that the defamatory statements were made with actual malice.

One of the more difficult issues in a defamation case focuses on whether the defendant is at fault for publishing defamatory comments. Common law rules created strict liability on the part of the defendant, meaning that a defendant could be liable for defamation merely for publishing a false statement, even if the defendant was not aware that the statement was false. Cases involving an interpretation of the First Amendment later modified the common law rules, especially in cases involving public officials, public figures, or matters of public concern.

Common Law Rules

At common law, once a plaintiff proved that a statement was defamatory, the court presumed that the statement was false. The rules did not require that the defendant know that the statement was false or defamatory in nature. The only requirement was that the defendant must have intentionally or negligently published the information.

Public Officials and Public Figures

In New York Times v. Sullivan, the Supreme Court recognized that the strict liability rules in defamation cases would lead to undesirable results when members of the press report on the activities of public officials. Under the strict liability rules of common law, a public official would not have to prove that a reporter was aware that a particular statement about the official was false in order to recover from the reporter. This could have the effect of deterring members of the press from commenting on the activities of a public official.

Under the rules set forth in Sullivan, a public official cannot recover from a person who publishes a communication about a public official's conduct or fitness unless the defendant knew that the statement was false or acted in reckless disregard of the statement's truth or falsity. This standard is referred to as "actual malice," although malice in this sense does not mean ill-will. Instead, the actual malice standard refers to the defendant's knowledge of the truth or falsity of the statement. Public officials generally include employees of the government who have responsibility over affairs of the government. In order for the First Amendment rule to apply to the public official, the communication must concern a matter related directly to the office.

Later cases expanded the rule to apply to public figures. A public figure is someone who has gained a significant degree of fame or notoriety in general or in the context of a particular issue or controversy. Even though these figures have no official role in government affairs, they often hold considerable influence over decisions made by the government or by the public. Examples of public figures are numerous and could include, for instance, celebrities, prominent athletes, or advocates who involve themselves in a public debate.

Private Persons

Where speech is directed at a person who is neither a public official nor a public figure, the case of Gertz v. Robert Welsh, Inc. (1974) and subsequent decisions have set forth different standards. The Court in Gertz determined that the actual malice standard established in New York Times v. Sullivan should not apply where speech concerns a private person. However, the Court also determined that the common law strict liability rules impermissibly burden publishers and broadcasters.

Under the Restatement (Second) of Torts, a defendant who publishes a false and defamatory communication about a private individual is liable to the individual only if the defendant acts with actual malice (applying the standard under New York Times v. Sullivan) or acts negligently in failing to ascertain whether a statement was false or defamatory.

In today's content-rich, digitally networked world, public figures or people involved in newsworthy events aren't the only ones at risk of reputational harm. It has become a relatively simple matter to comment, share, and distribute personal information and media. Unfortunately, people may -- either intentionally or unintentionally -- share information about you that's false or misleading.

If you suspect that false or misleading information about you has been shared or otherwise publicized, then you may have a claim under the law for either defamation or false light.

It's important that you understand the differences between the two 'reputational harm' causes of action, defamation vs. false light, so that you can better assess the strength and scope of your claim moving forward.

Defamation and False Light: Comparing the Elements

Defamation and false light are similar causes of action that hinge on the disclosure of false or misleading information. When determining the strength and scope of your claim, you should first determine the applicable state law and whether you have access to a false light cause of action.

To start with, let's take a look at the basic causes of action for both defamation and false light.

The Elements of Defamation

For defamation, the plaintiff must prove the following elements:

  1. The defendant made a statement about the plaintiff to another.
  2. The statement was injurious to the plaintiff's reputation.
  3. The statement was false.
  4. If the plaintiff is a public figure, or was involved in some newsworthy event or some other event that engaged the public interest, then the defendant must have made the false statement intentionally or with reckless disregard of the plaintiff's rights.
  5. There are no applicable privileges.

Defendants are generally placed at significant advantage as compared to plaintiffs in defamation actions.

Truth is a complete defense, no matter how injurious the statement may have been. Essentially, a defendant can publically make any statement about the plaintiff, no matter how reputationally damaging or embarrassing, so long as that statement is truthful. If a plaintiff cheated on his wife, for example, then the plaintiff can't effectively sue a defendant for having published that fact in a magazine or newspaper.

Defendants may also claim that their public statement was a matter of pure opinion, which will exempt them from the action. If that fails, they may seek to have the court recognize the plaintiff as a limited public figure so that the higher reckless disregard standard kicks in. 

The Elements of False Light

In a false light claim, the plaintiff must prove the following elements:

  1. The defendant published some information about the plaintiff.
  2. The information must portray the plaintiff in a false or misleading light.
  3. The information is highly offensive or embarrassing to a reasonable person of ordinary sensibilities.
  4. The defendant must have published the information with reckless disregard as to its offensiveness.

A false light claim is usually easier to bring than a defamation claim.

Take, for example, a newspaper article about the issue of child molestation in certain churches. If the editor includes a photograph of an innocent priest who has not been accused of or otherwise associated with child molestation, the newspaper may be liable for false light, since the inclusion of the photograph implies that the priest is involved in child molestation. In a defamation action, the newspaper-defendant would simply assert that no statement was actually made about the photographed priest and child molestation.

As you can you probably tell, false light is a powerful cause of action for a plaintiff because it allows for a holistic assessment of published information and the context in which such information is placed. A great deal of potentially injurious commentary merely implicates or speculates, but doesn't go so far as to make a direct, false statement.

The Differences Between Defamation and False Light

Where defamation is meant to protect a person from injury to their reputation, false light is meant to protect a person from the offense or embarrassment that arises from a misleading or untrue implication. This core difference leads to practical differences that affect how the parties approach an issue of reputational harm.

  • A defamatory statement need only be made to one other person, but a false light disclosure must be made to a large enough group of people to be considered a 'public' disclosure.
  • Defamation is meant to protect reputation. A non-offensive statement about a person can harm their reputation. As such, defamation does not require that the statement be offensive or embarrassing. False light, on the other hand, demands that the supposed implication be offensive or embarrassing.
  • False light demands that the defendant has made the implication or misleading statement/disclosure with reckless disregard. This is a high standard. Defamation, on the other hand, only demands the reckless disregard standard if the plaintiff is a public figure or limited public figure.
  • Truth is a complete defense to defamation. False light is affected by the truth defense differently. A defendant's true statement about a plaintiff may not be used to save the defendant if the implication is false. However, if the defendant's implication about the plaintiff is true, then it will serve as a defense to a false light claim.

Texas doesn't have a civil liability law specifically for dog bites, but that doesn't mean you won't be liable if your dog bites someone. The Texas Supreme Court articulated the law and standards that Texas follows for animal attacks in a case called Marshall v. Ranne.

In the Marshall case, Paul Marshall sued John Ranne for damages suffered when Ranne's boar severely injured his hand. The court reviewed previous court cases involving animals and decided that Texas would hold the owner of a vicious animal strictly liable for damages.

With this ruling Texas became a "one bite rule" state. This means the owner can be held strictly liable for any damages caused by an animal known to be dangerous (or which could be dangerous). However, if the animal has never bitten anyone before, then the injured person must prove that it was vicious before they could recover for the injuries.

While Texas lacks statutes for civil liability for dog attacks (or attacks by other animals), it does have criminal statutes. A dog owner may be criminally liable if they acted with criminal negligence or if they had reason to know their dog was dangerous. A person can be said to act with criminal negligence if they should have been aware of the substantial and unjustifiable risk that resulted in the dog attack. For the criminal statutes, a person can be said to know that their dog is dangerous if there was a previous, unprovoked attack or the owner has been informed by appropriate authorities that the dog is dangerous.

Statutes:

Texas Health and Safety Code:

Texas Penal Code:

Texas Civil Code:

Dog Bite Liability:

If the dog has never bitten anyone before and the owner had no reason to believe that the dog was dangerous, then it will be up to the victim to prove negligence in order to recover.

If the owner had reason to know that the dog was dangerous, then the owner is strictly liable for the injury caused.

 

Possible Penalties and Sentencing:

Civil Liabilities:

If the owner didn't know the dog was dangerous, they may be liable for the percentage they are deemed at fault. If the victim is deemed to be more than 50% at fault, there is no liability. (Texas Civ 33.001)

If the owner had reason to know the dog was vicious, then the owner is liable for all damages caused.

Criminal Penalties:

Criminal negligence or previously determined dangerous dog (Texas H&S 822.05):

  • Felony in the third degree
  • Imprisonment 2 to 10 years
  • Fine not to exceed $10,000

Attack by a dog determined to be dangerous (Texas H&S 822.044):

  • Class C misdemeanor
  • Fine not to exceed $500

 

Possible Defenses:

  • Defense to prosecution if person is a veterinarian, peace officer, or is employed to deal with animals.
  • Person is a dog trainer or an employee of a guard dog company
  • Attack occurred on owner's property
  • Attack was provoked
  • Attack occurred in dog's enclosure

We all have physical and emotional scars. Some of them heal quickly, some remain with us forever, and we mostly accept that getting hurt is part of life. But what if you end up scarred or disfigured due to the negligence of another?

 

Then, it's a little harder to accept. You want to sue the person and make them pay. Can you? The answer will depend on the extent of your scarring and the context in which it arose.

Suing for Scarring

People certainly do sue for scarring, even when the scar is the result of a surgery and the doctor claims to have warned the patient of the potential mark remaining. But every state has different statutes and case law that judges look to when making a decision.

For example, in a New Jersey automobile accident injury case, Soto v. Scaringelli, the state's high court had to determine what is significant scarring for the purposes of a statute limiting non-economic damages. The court made this determination by looking at state law precedent and determined that the plaintiff was not significantly disfigured as defined by New Jersey law.

The court wrote that the significant scarring or disfigurement threshold was met "only if an objectively reasonable person would regard the scar or disfigurement as substantially detracting from the automobile accident victim's appearance, or so impairing or injuring the beauty, symmetry, or appearance of a person as to render him or her unsightly, misshapen, or imperfect."

As you can see, that is a very high standard, and calls upon a court to determine that a plaintiff is indeed unsightly, misshapen, or imperfect, which is a little awkward. In any case, that's only one statute, one state, and one type of injury. There are many others and people do recover for scarring and disfigurement that is caused by the negligence of another.

Not Warned?

A scarring suit is likely to arise after a surgery, say, and if you were not warned that the procedure would leave you permanently marked, you might sue for your scar. The likelihood of recovery depends on a number of factors. Was the procedure medically necessary? Were you warned of risks and potential permanent marks? Is the scar somehow unusual for this particular procedure?

Some patients have even sued for scars that they deemed malicious. One blind Native American man sued a surgeon for scarring on his stomach that he said was racially motivated and racist. The patient said he was told by others that his scars looked like they said "KKK," short for the Ku Klux Klan.

Not all torts result in bodily harm. Some cause harm to a person's reputation instead. Defamation is the general tort that encompasses statements that damage one's reputation. There are different forms of defamation, including libel and slander. The difference between libel and slander is simply whether the statements are written (libel) or spoken (slander). If a person suffers injury to his or her reputation as a result of another person's statements, he or she can sue under the theory of defamation.

Defamation laws protect the reputations of individuals and other entities (such as businesses) from untrue and damaging statements. At the same time, the courts must protect freedom of speech for United States citizens. Libelous statements refer to words that can be seen (typically written and published), while slander occurs when a defamatory statement is spoken or otherwise audible (such as a radio broadcast). These cases often involve public figures or public officials and false statements made about them, but everyone's first amendment rights to free speech must still be protected.

To prove either type of a defamation lawsuit, plaintiffs must prove the following elements:

  1. The defendant made a false and defamatory statement concerning the plaintiff;
  2. The defendant made the defamatory statement to a third party knowing it was false (or they should have known it was false); and
  3. The publisher acted at least negligently in publishing the communication.

Note: In some cases, the plaintiff must prove special damages.

Depending on the jurisdiction, or if the defamation case goes to the U.S. supreme court, some actions that don't quite rise to the level of defamation may give rise to "false light" lawsuits. The main difference is that a false light claim doesn't require the information to be false but rather highly offensive or misleading, sometimes called actual malice. The following is an overview of the elements of libel and slander.

Defamatory Statements

One essential element in the types of defamation claims is that the defendant knowingly or negligently published something defamatory about the plaintiff. A communication may be considered defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him," according to the American Restatement of Torts (or "The Restatement"). 

Examples of defamatory statements are virtually limitless, including statements that:

  • Suggest the plaintiff was involved in a serious crime involving moral turpitude or a felony
  • Expose a plaintiff to ridicule
  • Reflect negatively on the plaintiff's character, morality, or integrity
  • Impair the plaintiff's financial well-being
  • Suggest that the plaintiff suffers from a physical or mental defect that would cause others to refrain from associating with the plaintiff

Courts have long struggled with the task of determining a standard for deciding whether a statement is defamatory or has reckless disregard. Many statements may be viewed as defamatory by some individuals, but the same statement may not be viewed as defamatory by others. But generally, courts require a plaintiff to prove that he or she has been defamed in the eyes of the community or within a defined group within the community. Juries usually decide this question for libel lawsuits in court.

Courts have struggled to some degree with the treatment of statements of opinions in a libel suit. In common law, statements of opinion could form the basis of a defamation action similar to a statement of pure fact. Generally, if a statement implies defamatory facts about a person's reputation as the basis of the opinion, then the statement may be considered a libelous or slanderous statement.

Once the statement is proven to be a statement of fact (or disproven), "absolute defense" is established and the court case will close the defamation suit. Punitive damages may be awarded to the injured party for emotional distress and harm to the plaintiff's reputation.

Publication Requirement

Another requirement in libel and slander cases is that the defendant must have published defamatory information about the plaintiff. "Publication" certainly includes traditional forms, such as books, newspapers, and magazines, but it also includes oral remarks. A streaming audio clip on the Internet or a post on social media may be considered a publication in this context just the same as an article in The New York Times would be. As long as the person to whom a statement has been communicated can understand the meaning of the statement, courts will generally find that the statement has been published.

Meaning of a Communication

In some instances, the context of a statement may determine whether the statement is defamatory. The Restatement provides as follows: "The meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express." Courts generally will take into account associated facts and circumstances in determining the meaning of the statement. So even where two statements are identical in their words, one may be defamatory while the other is not, depending on the context of the statements.

Reference to the Plaintiff

In a defamation action, the recipient of a defaming communication must understand that the defendant intended to refer to the plaintiff in the communication. Even where the recipient mistakenly believes that a communication refers to the plaintiff, this belief, so long as it is reasonable, is sufficient. It is not necessary that the communication refer to the plaintiff by name if it is a defamation of character. 

A defendant may publish defamatory material in the form of a story or novel that apparently refers only to fictitious characters, where a reasonable person would understand that a particular character actually refers to the plaintiff. This is true even if the author states that he or she intends for the work to be fictional. Freedom of the press only extends as far as there is no malicious intent to a private person or a public person, or else the laws of libel may apply.

In some circumstances, an author who publishes defamatory matter about a group or class of persons may be liable to an individual member of the group or class. This may occur when:

  1. The communication refers to a group or class so small that a reader or listener can reasonably understand that the matter refers to the plaintiff; and
  2. The reader or listener can reasonably conclude that the communication refers to the individual based on the circumstances of the publication.

A defendant in a defamation case may raise a variety of defenses, whether it is libel or slander. Generally, defamation occurs when one party publishes or broadcasts false information about someone else, causing an injury to one's reputation. To understand how a defendant might defend against such charges, it may help to first familiarize yourself with the elements of libel and slander.

These common defenses to libel and slander are summarized as follows:

Truth as a Defense to Libel and Slander

The common law traditionally presumed that a statement was false once a plaintiff proved that the statement was defamatory. Under modern law, a plaintiff who is a public official or public figure must prove falsity as a prerequisite for recovery. Some states have likewise now provided that falsity is an element of defamation that any plaintiff must prove in order to recover. Where this is not a requirement, truth serves as an affirmative defense to an action for libel or slander.

A statement does not need to be literally true in order for this defense to be effective. Courts require that the statement is substantially true in order for the defense to apply. This means that even if the defendant states some facts that are false, if the "gist" or "sting" of the communication is substantially true, then the defendant can rely on the defense.

Consent as a Defense to Libel and Slander

Where a plaintiff consents to the publication of defamatory matter about him or her, then this consent is a complete defense to a defamation action.

Defamation and Absolute Privileges

Some defendants are protected from liability in a defamation action based on the defendant's position or status. These privileges are referred to as absolute privileges and may also be considered immunities. In other words, the defense is not conditioned on the nature of the statement or upon the intent of the actor in making a false statement. In recognizing these privileges, the law recognizes that certain officials should be shielded from liability in some instances.

Absolute privileges apply to the following proceedings and circumstances:

  • Judicial proceedings
  • Legislative proceedings
  • Some executive statements and publications
  • Publications between spouses
  • Publications required by law

Defamation and Conditional Privileges

Other privileges do not arise as a result of the person making the communication, but rather arise from the particular occasion during which the statement was made. These privileges are known as conditional, or qualified, privileges. A defendant is not entitled to a conditional privilege without proving that the defendant meets the conditions established for the privilege. Generally, in order for a privilege to apply, the defendant must believe that a statement is true and, depending on the jurisdiction, either have reasonable grounds for believing that the statement was true or not have acted recklessly in ascertaining the truth or falsity of the statement.

Conditional privileges apply to the following types of communications:

  • A statement that is made for the protection of the publisher's interest
  • A statement that is made for the protection of the interests of a third person
  • A statement that is made for the protection of common interest
  • A statement that is made to ensure the well-being of a family member
  • A statement that is made where the person making the communication believes that the public interest requires communication of the statement to a public officer or other official
  • A statement that is made by an inferior state officer who is not entitled to an absolute privilege

Loss of consortium is a personal injury claim that can lead to damages for loss of affection and normal marital relations. In some cases, loss of consortium can also apply to a relationship between parents and children.

So when can a loss of consortium claim be made, and what will you have to prove in order to prevail in court?

Here are some general guidelines:

Who Can Sue?

Loss of consortium is usually limited to the loss of love, sexual relations, and services of a spouse. The loss of these services can result from another person's negligence, medical malpractice, assault, battery, wrongful death, or other forms of actionable personal injury claims. Loss of consortium claims are usually initiated by the uninjured spouse, who may be able to join the injured spouse's lawsuit. However, the injured spouse may also be able to sue for loss of consortium.

For example, a man whose genitals were burned while using a urinal at a fast-food restaurant sued the chain for failing to make sure the premises were safe. His wife joined the lawsuit claiming loss of consortium because her husband's burned genitals prevented them from having sex.

In some cases, parents can sue for loss of consortium with their child. This damage is usually limited to circumstances in which minor children are severely injured. Generally speaking, the injuries must be serious enough to interfere with the normal relationship between parents and their kids.

Proving Loss of Consortium

To prove loss of consortium for married couples, the court will consider the "value" of the loss by considering several factors including:

  • How stable the marriage is,
  • The couple's individual life expectancy, and
  • The extent to which the benefits of married life were actually lost. For example, a spouse who's in a coma after an accident will likely be seen as losing a greater amount of marital benefits than a spouse who suffered a broken leg.

Depending on the type personal injury case, the damages awarded for loss of consortium may differ. Loss of consortium is a form of non-economic damage. Unlike calculable costs like hospital bills, non-economic damages are more abstract and usually account for one's pain and suffering.

In personal injury lawsuits, lawyers talk about compensatory and punitive damages while economists may talk about hedonic damages. So what are hedonic damages?

"Compensatory" and "punitive" are legal terms about what money a victim an be awarded. Compensatory damages pay for the harm, both physical and emotional, done to the victim or victims. Punitive damages are additional amounts meant to further deter the defendants from repeating their actions.

Hedonic damages are technically an economic term, but they still have a place in the law. The term "hedonic damages" refers to what lawyers call the loss of enjoyment of life. It's the intangible impact an injury has on your life. It's easy for courts to measure many of the effects an injury has on a victim's life. Lost earning capacity, medical bills, and other expenses can all be measured by objective standards. But other damages, like pain and suffering, are based on subjective testimony. Hedonic damages fall into that category as well.

Historically, judges have shied away from granting much when it comes to hedonic damages. It's not that they dismiss pain and suffering, but it's hard to quantify correctly. The law generally demands clear proof and without it, it's difficult to win your case. That doesn't mean victims get nothing when it comes to the emotional loss of the ability to enjoy their lives; it's just that courts often give them much less than they ask for.

In order to prove something like "hedonic damages," a victim typically has to support the claim with evidence of what they can no longer do as a result of their injuries. The younger the victim is, the more damages they're likely to get, since the loss will be felt over a longer period of time. For victims who can prove their case when it comes to loss of enjoyment of life, the law will generally award compensation.

Personal injury may involve more than just physical harm. One possible claim arising from a personal injury situation is an emotional distress claim. Often, the plaintiff must show some physical manifestation of the emotional distress. In other circumstances, a plaintiff may have a viable emotional distress claim, if she can show that she was subjected to extreme or outrageous conduct.

 

Emotional distress can be difficult to understand from a legal standpoint, and assigning a dollar value to this distress can be even trickier. But make no mistake, emotional distress is a legitimate injury with serious consequences.

Failing to exercise the degree of care expected of someone in order to minimize the risk of harm to another is considered "negligence," the legal basis for many personal injury cases. For example, you may be sued for negligence if a delivery person slips and falls on a patch of ice, sustaining an injury, on the way to your front door. In that case, the homeowner has a duty to maintain a relatively safe walkway.

For the most part, plaintiffs will have to demonstrate to the court that the five following elements are present:

  • Duty - The defendant should have acted (or not acted) in a certain way, owing a "duty" to act (or not act). Motorists have a duty to pay attention to the road and not be distracted by cell phones or other stimuli.
  • Breach of Duty - Defendant failed to do something (or refrain from doing something) that is considered his or her duty. For example, a motorist who was reading text messages and hit a pedestrian has breached his/her duty to pay attention to the road.
  • Cause in Fact - The injury was "in fact" caused by the defendant's breach of duty. For example, the pedestrian would not have been struck and injured had the motorist who hit him been paying attention.
  • Proximate Cause - Was it obvious to a reasonable person that texting while driving could result in someone's injury? For instance, the distracted motorist should have known that texting while driving could cause an accident.
  • Damages - There must be actual harm to the plaintiff that the system is capable of compensating him or her for.

Code Sections:

Texas Civil Practice and Remedies Code:

  • Section 33.001 (proportionate responsibility)
  • Section 33.002 (applicability)
  • Section 33.003 (determination of percentage of responsibility)
  • Section 33.012 (amount of recovery)

Comparative Negligence:

Texas uses a modified form of comparative negligence (also known as "proportionate responsibility" in Texas). This means that if you are found partially at fault for the injury, then your damages can be reduced.

Contributory Negligence-Limit to Plaintiff's Recovery:

Plaintiff's negligence not greater than defendant's; award diminished in proportion to negligence.

 

Statute of Limitations:

Limits on Damages:

  • $100,000 in claims against the government (§108.002)
  • $250,000 in noneconomic damages per claimant (§74.301)
  • Liability limited for claims arising from community service (§65.106)

Other Limits:

  • 50% Modified Comparative Negligence (§33.001)

Pain and suffering damages in Texas are part of a larger group of damages, known as "noneconomic damages". Noneconomic damages including damages for nonpecuniary injuries, such as:

Claim Types

Noneconomic damages are available as compensation for many injuries in Texas, including slip and fallsmedical malpractice claims, car accidents, defective products, and animal bites.

Time Limits

You will not want to wait too long to file your claim in Texas. The State of Texas has time limits—statutes of limitations—on how long you have before the court will bar you from recovering damages. For most injuries, you have only two years. For libel and slander claims, you have only one year. If you are a sex crime survivor, Texas extends extra time for you to decide whether to file suit: you have five years.

Damage Caps

If you were injured by a child or parent rendering community service through a program with the city or county, your recovery will be limited to $100,000. If multiple people were injured, however, your recovery could be further limited because recovery per incident is capped at $300,000 per incident for injuries or deaths.

If you were hit by a public bus, or if you slipped and fell at the DMV, you will likely be filing a lawsuit against the state of Texas. Whenever the state is the defendant, your total claim is limited to $100,000.

Finally, Texas will cap your pain and suffering (and other non-ecomonic) damages at $250,000 for medical malpractice claims and claims against a government entity.

The most common type of injury that leads to an award of pain and suffering damages is a severe physical injury that causes physical or mental anguish for a period of time following an accident. For example, a head injury suffered in a car crash that results in a persistent headaches and emotional problems could potentially lead to the awarding of pain and suffering damages.

Although there are no set standards for determining an award for pain and suffering, a jury will typically take several factors into consideration:

  • The severity of the injury. Injuries that result in long-term debilitation or constant pain will more likely to require compensation for pain and suffering.
  • The age of the victim. An injury to a young person may garner a larger award, as the effects of the injury will be endured for a longer period of time.
  • The degree of suffering. Pronounced pain at the time of injury, especially if it continues long afterwards, can also result in pain and suffering damages. On the other hand, simply being bothered or annoyed by an injury will not likely suffice.

As there is no way to accurately quantify the value of a plaintiff's pain and suffering, juries are asked to use their best judgment in coming up with the amount of a pain and suffering award. Keep in mind, however, that some states have instituted damage caps that place an upper limit on the amount of pain and suffering damages that may be awarded.

Pain and Suffering for Non-Physical Injuries?

Although pain and suffering damages may be awarded for mental anguish, they are typically reserved for mental or emotional pain caused by a physical injury. So if you suffered only emotional damages -- such as fear, anxiety, or shame -- then pain and suffering damages may not be awarded unless the defendant's conduct was extreme and outrageous.

You may have grounds to file a civil rights lawsuit if the police mistreat you. The most common form of police misconduct is the use of excessive force, sometimes called police brutality. For instance, in one Texas case a woman alleged that a sheriff's deputy slammed her into a concrete bench while booking her on charges.

The main obstacle plaintiffs face in bringing such lawsuits is that police officers have a certain degree of "immunity," which ensures that they're not unreasonably hampered in performing their difficult job. Generally speaking, police officers will be immune from suit unless they violate someone's clearly established rights. The same immunity rules apply to lawsuits against sheriff's deputies, correctional officers, and others in law enforcement.

Overview of Police Misconduct and Civil Rights Claims in Texas

Although the best way to understand your legal rights is to consult an attorney, here is a "plain English" summary of some important aspects of suing for police misconduct in Texas.

Texas LawTexas Tort Claims Act

Texas plaintiffs sometimes sue law enforcement officers under the Texas Tort Claims Act. More commonly, though, they rely on the federal constitution, including the right to due process of law. They usually file the lawsuit under a federal civil rights statute known as Section 1983.

Types of Police Misconduct

Police misconduct includes where an officer:

  • uses excessive force, meaning an amount of force that was unreasonable given the circumstances, including unnecessary lethal force;
  • arrests or detains someone without lawful justification;
  • fails to disclose exculpatory evidence, that is, evidence tending to show that a person was innocent of the crime; or
  • engages in sexual assault or otherwise misuses authority.

Time Limit

The statute of limitations for a Section 1983 claim varies from one to six years because it borrows the state's time limit for personal injury claims. A claim is usually barred if it's brought past the deadline.

The Texas Tort Claims Act provides only a brief window for asserting claims, sometimes as little as 45 days, so it's important to act quickly.

Immunity

Under a doctrine known as qualified immunity, law enforcement officers are shielded from liability for causing injuries or harm unless they violate someone's clearly established rights. Typically, the question of whether immunity applies is a central legal issue in a police misconduct case.

A separate doctrine of immunity shields municipalities from some damages claims.

Damages

A plaintiff in a successful lawsuit for police misconduct can recover monetary damages. In addition, the other side may be required to pay the plaintiff's attorney fees.

 

People injured by defective products may have the opportunity to recover for their damages through a product liability lawsuit. In the absence of federal laws, product liability cases are addressed at the state level. The Texas Civil Practice and Remedies Code addresses general information, such as the liability of non-manufacturing sellers, as well as specific claims, such as products liability cases involving medicine and firearms.

 

Statute(s):

Texas Civil Practice and Remedies Code:

  • Title 2, Chapter 16, Section 16.012 (Limitations Involving Products Liability)
  • Title 4, Chapter 82, Section 82.001, et seq. (Products Liability)

Statutory Definition of Products Liability Action:

A products liability action is one that's against a manufacturer or seller to recover damages for personal injury, death, or property damage caused by a defective product. The action can be based on any legal theory, including:

Statute of Limitations for Filing a Claim:

A person must file a products liability action against a seller or manufacture within 15 years of the date of sale*. However, if the manufacturer or seller has an express warranty in writing that the product has a life longer than 15 years, the action must be filed within that time.

*This time limit only applies to the sale and not the lease of a product.

Effect of Manufacturer or Seller's Compliance with Government Standards:

There's a rebuttable presumption that the product manufacturer or seller isn't liable for injuries if the formula, labeling, or design was in compliance with mandatory federal safety standard or federal licensing procedures and requirements.

Related Statute(s):

Texas Civil Practice and Remedies Code, Title 4, Chapter 90, Section 90.001, et seq. (Claims Involving Asbestos and Silica)

Slander occurs when someone speaks false and damaging statements about another person. Public officials and public figures often bring slander cases.

How Do I Prove Slander?

In a slander lawsuit, you have to prove the following:

  • Someone made a false, defamatory statement about you knowing it was a false statement
  • The statement does not fall in any privileged category
  • The person who published it acted negligently when they published the statement
  • You were harmed by the statement

Elements of Slander

In order to have a successful defamation lawsuit, you need to show the defendant made a defamatory statement that harmed your reputation. Let's look at all the elements in detail.

1. The Statement Needs to Be Defamatory

The restatement of torts defines defamatory statements as "communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him."

Generally, if a statement attacks a person's reputation, then the statement might be slanderous. But courts will take a case-by-case approach to identify which statements qualify as defamatory and which ones are simply made in reckless disregard.

2. The Statement Needs to Be Published

Here, a third party must have heard or seen the defamatory statement. Note that published doesn't mean the statement was actually published. It just needs to be communicated to a third person. So a post on social media or even a loud conversation is enough to qualify.

Courts will typically consider a statement "published" if another person has heard or seen the statement and understands its meaning.

3. The Statement Needs to Be False

The statement must be false. So, even if a statement hurts someone's reputation, it won't be slander if it is actually true.

The statement should also be objectively false. This means someone's opinion like "this is the worst realtor I have ever encountered" will not be considered defamatory since it's impossible to prove its falsity.

4. The Statement Needs to Be Harmful

If you are suing for slander, you must show that the spoken statement has harmed you in some way. Some examples of how you can do that include showing:

  • You lost your job because of the statement
  • The press is harassing you
  • You have lost your reputation in your community or with your friends or family

5. The Statement Needs to Target You

Here, the third party who heard the defaming statement needs to know that the statement was referring to the plaintiff. The court uses the reasonable person standard to identify whether a third party could reasonably believe the statement is referring to the plaintiff.

6. The Statement Needs to Show Actual Malice (for Public Officials and Figures)

Because of the nature of the work they do, public officials and figures also need to show malice to win a defamation case. Actual malice means the person making the statement knows the statement was false or did not care enough to check.

This additional requirement came after the 1964 landmark Supreme Court decision New York Times v. SullivanThis case emphasized that the First Amendment freedom of speech protects certain defamatory statements. The Court stated that mistakes could be made in public discussions, especially regarding public figures. Thus, these mistakes should be protected if they are "honestly made."

7. The Statement Does Not Fall Under "Qualified Privilege."

For you to successfully bring a defamation action, you must show the statement is unprivileged. This means, in some situations, you will not be able to sue someone even if all the other elements are met. Privileged statements include:

  • Witnesses testifying in court
  • Legislators making statements during legislative debates
  • Statements made between spouses

How Difficult Is It to Sue for Slander?

Unlike libel, which is a written form of defamation, slander is spoken defamation, making it harder to prove. In addition, you must also show the person defaming you was at least negligent with the truth or falsity of the statement.

It is much harder for public officials and figures to sue for slander as they also need to prove actual malice in addition to the other elements. 

How Does Worker' Comp Function in Texas?

Texas law allows most employers to decide whether to purchase workers' comp insurance, but they must tell you if they've chosen not to have it. If they've declined the insurance, or you've rejected coverage, you retain your right to sue them for a much wider range of damages, but you'll probably also have to show fault on their part. For those with insurance, the injury must be work-related, and while injuries are covered regardless of fault, compensation may be denied if you were injured while intoxicated or at an off-duty, voluntary, recreational activity.

Hurt on the Job? Report Your Injury

After an accident, you should get medical attention and notify your supervisor of the injury (or illness) within 30 days. If your employer carries workers' compensation insurance, you must choose a doctor from a list of approved providers (except in emergencies). After being notified of the injury, your employer must send a First Report of Injury to their insurance carrier within eight days. If your employer does not have insurance, you have a non-subscriber injury case.

What if My Claim Is Denied or Challenged?

If there is a dispute that you and the insurance carrier are unable to resolve, you may request dispute resolution through the Division of Workers' Compensation. You're free to represent yourself or request help from the Office of Injured Employee Counsel during this process, but an attorney can be extremely helpful in meeting deadlines and representing you against the insurance company's attorneys.

When a person passes away due to someone's negligence or misconduct, the surviving family members may sue for "wrongful death." In this type of lawsuit, the survivors attempt to hold accountable whoever was responsible for their loved one's untimely death.

Wrongful death suits run the gamut from fatalities caused by medication errors or defectively manufactured products to drunk drivers and stray gunshots. In one Texas case, a husband accused a nursing home of causing his wife's death by failing to provide proper treatment for wounds and pressure ulcers which led to her death. Regardless of the underlying circumstances, a plaintiff must prove that the tragic loss of life was attributable to someone's wrongful or negligent conduct.

 

Statute:

Texas Civil Practice and Remedies Code section 71.001

Time Limit: 

The lawsuit must be filed within 2 years of the date of the person's death, although the time limit can be extended in narrow circumstances (section 16.003).

Who May File a Wrongful Death Claim:

Generally, Texas allows only certain individuals to file a wrongful death lawsuit:

  • The deceased person's spouse;
  • The deceased person's children;
  • The deceased person's parents; and
  • The representative of the deceased person's estate.

Monetary Damages Available:

A plaintiff can recover monetary compensation for losses including:

  • Loss of financial support;
  • Loss of companionship;
  • The survivors' mental anguish;
  • The deceased person's pain and suffering;
  • Medical bills; and
  • Funeral and burial costs.

A court can also award a plaintiff exemplary or punitive damages (that is, extra monetary damages designed to punish the defendant) if the death is caused by a willful act or omission or an extreme level of negligence, referred to as gross negligence.

Wrongful Death Claims Versus Survival Claims

Texas law distinguishes between two closely related types of claims, both covered in the above chart.

  • Wrongful death claims: Family members seek compensation for lost financial support, loss of companionship, and so forth.
  • Survival claims: The deceased person's estate asks to be compensated for the deceased person's losses, such as pain and suffering. This is similar to a personal injury lawsuit that a victim who survived the injury might have brought.

Both claims are civil in nature, meaning that the standard of proof is lower than in a criminal prosecution.

 

Personal Injury Law information provided courtesy of americanbar.org

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