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.
A tort is also described as a “breach” of a “duty” owed to another person.
One of the most common torts is negligence. Negligence is a legal term for carelessness. In general, people have a duty of care (a legal requirement to be careful) if their behavior will impact other people.
When a person or company does not take enough care, and someone else is injured as a result, the careless person or company may be guilty of negligence.
Under Texas state law, the negligent person or company must pay for injuries and property damage caused by that negligence.
Duty of Care – Negligence
For example, dog owners have a duty of care to make sure their dogs do not bite or attack people.
There are steps a dog owner must take to meet this duty of care. An obvious one is keep the dog on a leash in public so it doesn’t run up to people.
Dog owners who let their dogs run around in public (except in designated dog park areas) might not be meeting the duty of care. If an unleashed dog attacks someone, the owner is probably responsible for an injuries the dog causes.
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:
Negligence is one of the most common torts. Negligence is the legal term for carelessness. A person who is negligent is not being careful enough.
Under Texas tort law, every person and company must meet a certain level of being careful. That level is known as the standard of care.
Different circumstances call for different standards of care.
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.”
The two most important elements are that:
- The interference is substantial.
A neighbor who paints a house in ugly colors might not be enough to constitute nuisance. But a neighbor whose activities substantially lower the property value of the neighborhood (e.g. a factory spewing smoke) might be committing nuisance.
- The interference is unreasonable.
A neighbor who plays loud music during the day may be annoying, but it may not constitute a nuisance. People are expected to tolerate some discomfort, and not every inconvenience is a nuisance under Texas tort law.
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:
- The neighborhood’s character
- The manner in which both neighbors use their land (residential, commercial, recreational, etc.)
- Social expectations in what is acceptable
- Where the land is located
- How many others are engaged in the same behavior
- Size and degree of the interference
- Frequency of the interference
- How easily the neighbors can make changes to end the nuisance or reduce its effects (for example, if the nuisance is a bright light, can a neighbor just buy curtains?)
- Why the person or company is engaging in behavior that might be nuisance (do they have a good reason, like a hospital?)
- The interests and concerns of the public and the community where the behavior occurs
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:
Money Damages – Financial compensation for the harm caused by the nuisance.
A court order (called an injunction) that requires the person or company committing the nuisance to stop their behavior or change it so that it does not injure another person.
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.
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.
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.
- Torts are addressed by the victim (known as the plaintiff), who brings a lawsuit against the person or company that caused the harm (known as the defendant).
- The defendant who committed a tort may have to pay money or take steps to repair or compensate the plaintiff’s damages.
- A tort must be proven in court by a “preponderance of the evidence.” This means the plaintiff must show it is more likely than not that the defendant committed the tort. Some legal experts have referred to this as proving it at least 51% likely.
- Crimes are addressed by the government.
- Law enforcement officials prosecute the person who committed the crime (called the “defendant.”)
- The defendant who committed a crime may be punished with prison, or fines paid to the government.
- A crime must be proven by the prosecutor in court “beyond a reasonable doubt.” This is a much higher standard than for a tort in civil law. The judge or jury must feel that it is almost certain the defendant committed the crime. Some legal experts refer to this as being 98-99% likely.
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.
Breach of Contract
- A breach of contract is a broken promise made from one party to another.
- The duty is usually created by the contract itself – an agreement between the parties.
- Compensation for a breach of contract is limited to the actual losses experienced by the plaintiff. You usually cannot recover more money than you lost because the other party broke the promise in the contract.
- A tort is a violation of legal rights, or a breach of a duty
- With a tort, the duty is usually created by law (a statute) or because of a relationship between the parties (e.g., a doctor owes patients a duty of care).
- Tort recovery can include punitive damages (known in Texas as exemplary damages). This money can exceed the actual injuries to the plaintiff. Exemplary or punitive damages are designed to punish the defendant. The punishment deters the defendant and others from committing the same tort in the future.
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?
“Pure” Comparative Fault
- Under Pure Comparative Fault, a person can recover compensation for an accident, even if the other person in the accident was only a little bit responsible.
For example, if you were 95% responsible, you could still recover 5% of your damages from the other person.
“Modified” Comparative Fault
Modified Comparative Fault is different. This doctrine says you can only recover in an accident if your share of the fault is less than a certain amount (usually 50 or 51 percent). This is also known as 51-percent 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.
When a person or company is not careful enough, the law requires the person or company to pay for the damages that carelessness caused.
For example, if a building manager ignored signs that an elevator was not working correctly (noises, abrupt stops), anyone injured in that elevator might be able to recover from the building owner.
Two Types of Negligence Law
There are two types of negligence law that apply when someone is injured on or by another’s property. It’s important to know the difference as each area has different elements that you have to prove in order to win your case.
To receive compensation in a regular negligence case, there has to be an ongoing, negligent act by the defendant.
For example: You’re putting a new roof on your home and a case of shingles slides off the roof and hits someone, causing them to be hurt.
Your ongoing careless act (not securing the shingle case) might be negligence. Under Texas law, you might have to pay damages to the person who was hit.
Wal-Mart Stores, Inc. v. Garza, is an ongoing activity and would be a regular negligence case.
To prove a premises liability negligence case, the person’s injury must be caused by a “condition on the land.”
For example, a store owner who mops the floor may not have done anything careless. But leaving it slippery is a dangerous condition on the land.
Customers who are injured while walking on it might be able to sue for negligence under a premises liability theory.
The easiest way for a landowner to deal with a dangerous condition is often simply to include a warning so that everyone can avoid the danger.
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.
Under the necessary-use exception:
When an Invitee has no choice but to use unsafe premises,
If the Landlord should have guessed the Invitee might need to use the unsafe premises,
Then Landlord is responsible if the Invitee is hurt.
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
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.
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.
Calculating economic damages
Under Texas law, personal injury cases are generally limited to:
- Medical expenses
- Lost wages
- Pain and suffering
The first step is to find the total amount of your medical costs related to the injury. This is usually the amount of the medical bills and repair costs.
Calculating non-economic damages
In some cases, you can also recover damages for:
- Wrongful death
- Loss of companionship (e.g., a spouse that is paralyzed)
- Emotional distress
To calculate pain and suffering or other damages, the total medical costs are usually multiplied by a number, generally between 1.5 and 5.
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:
The driver that caused your Austin auto accident had a history of unsafe or intoxicated driving
- The at-fault driver was driving especially dangerously and harmed someone severely
Texas Civil Practice and Remedies Code Section 41, permits exemplary damages to punish reckless and intentional behavior that harms others.
However, Texas law provides certain limits on exemplary damages.
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 Encourages the Employer to Run the Business Safely
When an employee injures someone while on the job, the employer might also be legally at-fault.
This encourages the employer to take steps like proper training and safety measures to prevent their employees from injuring people.
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.
Employers Can More Easily Obtain Insurance Policies
Many trucking companies have large fleets of trucks and truck drivers. Because of their ongoing business and high volume, they are in a better position to have liability insurance that can pay for injuries caused by their employees.
18-wheeler accidents can be particularly destructive. That is another reason why in Texas, trucking companies and truck drivers are required to have large insurance policies to pay for the damage they cause.
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.