An injury changes lives…
sometimes forever.

What is a Tort?

“Tort” is a word from Latin, meaning an injustice. A tort is a legal offense that one person (or company) commits against another.

Duty To Warn

Some dangers cannot always be avoided. When Austin city employees work on the sewer, they sometimes need to leave a manhole uncovered.

Texas law recognizes this reality. But when something involves risk that cannot be avoided, the law requires that people be warned of the risk. That way they are choosing to expose themselves to risk knowingly.

This is known under tort law as the duty to warn. A person or company whose behavior inherently imposes risk of injury on other people must warn them of the danger.

For example, pharmaceutical manufacturers have a duty to make sure the medicines they sell are not dangerous. They also have a duty to warn consumers if there are any negative side effects.

If the pharmaceutical manufacturer violates those duties (by selling a dangerous drug, or by not warning consumers with a label), the manufacturer has committed a tort. Those harmed by the tort can often recover money from the company for injuries that the medicine caused.

Types of Torts Under Tort Law

There are many types of civil wrongs (torts) that a person or company can commit against another. Here is a list and explanation of some of the most common torts that lead to Austin personal injury lawsuits:

Nuisance

The tort of nuisance arises when someone is doing something that interferes with another person’s enjoyment of their property.

The Texas Supreme Court has stated that the nuisance tort means:

“[a] condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.” 

What that means, is nuisance tort law in Texas depends on the particular circumstances of the case.

The Texas Supreme Court listed a number of factors to examine when deciding if certain behavior constitutes nuisance. They include:

Remedies For Nuisance Under Texas Law

Under Texas law, when a person or company commits nuisance, the neighbor being harmed can file a lawsuit. The injured victim may ask the court for:

For example, if a factory were blowing toxic smoke towards a residential neighborhood, the neighbors might be able to get money for their loss in property value or even a court order  to require the factory to stop.

Intentional Infliction of Emotional Distress

Intentional Infliction of Emotional Distress (sometimes called IIED) is a tort that takes place when someone acts in an extreme way to cause emotional distress on another person. For example, if a joyrider driving a car drove on the wrong side of the road to scare another driver, it might constitute IIED.

Under Texas civil law, the elements of Intentional Infliction of Emotional Distress are:

• A person or company acted intentionally or recklessly
• The person’s or company’s conduct was extreme and outrageous
• The conduct caused the plaintiff emotional distress
• The emotional distress to another person was severe.

The person who became emotionally distressed can often recover money for injuries like trauma and anguish.

Assault / Battery

Assault and Battery are both crimes and torts.

Assault is threatening a person with bodily contact and injury.

Battery is making unlawful contact with someone else’s body.

Contact can include striking something closely connected to a person’s body, like a hat or cane.

Under certain circumstances, the person being touched may have consented to the touching (e.g., a football game). In that case, it may not be assault under the law.

Wrongful Death

When someone dies in Austin because of another’s neglect, carelessness or wrongful act, the Texas Civil Code allows the deceased person’s family to bring a wrongful death lawsuit against the person or entity that caused the death.

Under Texas’ wrongful death law, employers are generally responsible for the negligent or intentional actions that employees commit while on the job. This can include bus drivers and train operators. Similarly, the owner or manager of dangerous machinery is also generally liable for injuries and fatalities caused by the machine’s operator or unsafe condition.

Manufacturers of defective products and dangerous prescription drugs that contribute to a family member’s death can also be held legally liable under wrongful death law in Texas.

The Difference Between a Tort and a Crime

A tort is a legal violation of someone’s rights under civil law. A crime is a legal violation of someone’s rights under criminal law.

The Difference Between a Tort and Contract Breach

Both a tort and breach of contract violate a person’s rights, and both are addressed in civil court (instead of criminal court). However there are some important differences.

What Is A Mass Tort?

A mass tort is a lawsuit that lets a group of plaintiffs combine the cases of many different people who were hurt by the same defendant.

For example, when a drug manufacturer sells a medication that has harmful side effects, everyone harmed by that drug can often be compensated for their injuries. This might include medical bills, lost wages or pain and suffering.

Texas Tort Law And Determining Fault

Many accidents are not the result of only one person’s mistake.

For example, one driver might run a stop sign, but the driver they hit may have been distracted by texting. Or a passenger may know that the driver is drunk, but choose to ride in the drunk driver’s car anyway.

In these cases, both people in the accident are sometimes described as “partly at-fault.”

If you were partly at fault in an accident, some states prevent you from getting any money for their damages. But under Texas personal injury law, you can still receive compensation if you are less than half responsible for the accident (less than 51% percent at fault.)

What is Comparative Fault?

• Comparative fault (also called comparative negligence) is a doctrine in law that allows people to receive compensation, even if they were partly at fault.
• Under comparative fault, the amount of money a person can recover is reduced based on how much they were at fault. For example, if your damages equalled $100,000, but you were 20% at fault, your damages would be reduced by twenty percent ($20,000 in this case), and
• Judges or juries usually decide how much each person in an accident is at fault.
• Twenty-three states in the U.S. apply comparative fault, including Texas.

Comparative fault is an improvement over the traditional rule of contributory negligence. Contributory negligence says that a person who was at-fault at all in an accident  cannot recover anything from the other person in the accident. This was seen by many as too harsh a rule, and so comparative fault was developed.

What is “Modified” Comparative Fault?

Texas is a 51-percent modified comparative fault state

Under Texas traffic and tort laws, if you are injured in an accident that was 50 percent or less your fault, you can still sue for payment. Only if you are 51 percent or more at fault in the accident can your claim be denied.

Texas Tort Law And Premises Liability (“Slip and Fall” Lawsuits)

We’ve all heard of (or known) someone who slipped and fell in a store or tripped over something in someone’s lawn and suffered an injury. Both of these things could be cause for a lawsuit.

Injuries On Someone Else’ Property Are Covered Under the Laws of Negligence

There are two areas of law covering such injuries and both are related to negligence. Negligence is the legal term for carelessness.

The Duty to Warn in Premises Liability Negligence Lawsuits in Texas

Landlords Have a Duty to Warn Invitees About Hidden Dangers

Someone who comes onto the land with the owner’s knowledge and benefit is called an invitee. For example, customers shopping at a store or dining at a restaurant are invitees.

Under Texas statutory and case law:

When there is an unreasonably dangerous condition

That is concealed (not open or obvious – for example, a wobbly step), and

The invitee does not know about the condition or risk of harm, but

The landowner knows or should know about it,

Then the landowner has a duty to make the condition safe, or warn the invitee.the necessary-use and criminal-activity exceptions.

Landlords May Still Be Responsible, Even When the Invitee Knows About the Danger

There are two exceptions to the general Duty to Warn in Premises Liability lawsuits under Texas law. Under these exceptions, the Landlord still has a duty to warn of danger and reduce the risk of injury, even when the invitee actually knew about the dangerous condition.

For example, in the case of Parker v. Highland Park, Inc., a person had to use the stairs to exit an apartment. The stairs were dark because the lights were on a timer that had not been set properly.

The landowner should have known someone might use the stairs to exit the apartment. The person leaving knew it was dangerous to walk down the darkened stairs. But there was no other exit.

So the landowner’s carelessness in setting the timer was negligence.

Except When the Landowner Should Expect It

Under the criminal-activity exception, the landowner might still be responsible if the landowner knew or had reason to know there would possibly be a risk to invitees.

For example: A holiday resort keeps having to break up bar fights among a group of college students visiting for the weekend.

This means the hotel owners know or have reason to know that when those students are at the bar, other hotel patrons (invitees) might be in danger.

The next day, the students who were fighting show up at the bar again, and there is tension. The hotel bar staff does nothing. If there is a fight and a bystander is hurt, the bystander can sometimes sue the hotel owners.

In fact this case really happened.

There Are No Slam Dunks in Premises Liability Law

Now, just because the owners in both exceptions failed to perform their duties, doesn’t mean it’s an automatic win for the injured parties.

Under Texas law, if you are partly at fault for an accident, the amount of money you receive for your injuries may be reduced, or you may not recover at all.

So if a jury could find that the people injured should have known to leave the bar before the fight, they might receive less money. Someone who decided to get involved in the fight might not recover anything.

Texas Permits Different Types of Damages in a Lawsuit

Economic damages

After an Austin accident, some of your harm can be repaired. These are generally known as economic damages:

• Property Damage
  An auto mechanic can often repair the car. Even if the vehicle is totaled (damaged beyond repair), it can often be replaced.
• Medical Bills
  If you have bills from a doctor or hospital, the person who caused the accident can cause them.
• Lost Wages

If you miss work, the negligent person or company can pay for your lost wages.

Non-economic damages

Money can address some of your costs like medical bills or therapy.

But with bodily injuries and other losses, money may not really be enough to ‘make you whole’.

You may have permanent physical pain or damage. You may have mental anguish or trauma from the accident. You may be unable to work. In the worst cases, you may even have lost a loved one.

In these cases, the law tries to compensate you by assigning a dollar figure to the damages you suffered. This is not a perfect fix. It is the best that the law and society can come up with to make you whole under the circumstances.

Calculating your injuries in a negligence lawsuit in Texas

In any Austin personal injury lawsuit, the amount of damages must be calculated. The damages will depend on the circumstances of your case.

The number that is used varies depending on the circumstances of the injury.

For example, if your injuries were serious, the number used could be higher than 5. The amount of your lost wages is then added to that number. The result gives a starting number to begin settlement negotiations. If your case can be settled, you will not need to go to court.

Texas Permits Punitive Damages, Known As Exemplary Damages

When someone was particularly reckless and harmed others, sometimes courts punish the person by making them pay additional money. These are often known as punitive damages.

They are designed to prevent that person from being reckless again. They also make an example of that person, so that others know to act carefully. That’s why in Texas, they are called exemplary damages.

For example, a jury might decide to award exemplary damages if:

Employers Often Have to Pay for Injuries Caused By Their Employees On The Job

Many laws make an employer legally responsible for injuries caused by their employees. There are very good reasons for this:

Employees Are Often “Judgement Proof”

Even if you win the case, the truck driver may simply not have the money to pay all your bills. Many drivers do not even have a truck to sell. Some work for a trucking company, others lease the truck from its owner.

In these cases, the driver is known as judgement proof. The law makes the employer legally responsible so that the injured victim is not left without any way to pay for their damages.

It Discourages the Employer from Telling Employees to Break the Law

Making employers responsible for damage caused by their employees while on the job also discourages the employer from bad behavior.

For example, national safety laws require truck drivers to take take regular rest breaks in between driving.

Research and law enforcement data shows many trucking companies tell drivers to work without the legally required down time. Some encourage the drivers to fake their written logbooks.

Other trucking companies set unrealistic delivery times, and threaten to dock the driver’s pay for being late. Drivers just break the laws themselves.

Making the trucking companies legally responsible makes them less likely to take such risks. It makes everyone on the road much safer.

If you or a loved one has been injured in an accident, call Justinian and Associates today. Evaluating a case and calculating what it may be worth is complex.

If you have questions about whether you can or should sue, or your case value, we offer a completely free consultation with an attorney (not a “screener” or paralegal”) who will listen to your story and tell you your options under the law. There is no obligation. Contact us today by phone, text or email.