Cronauer Law, LLP


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Frequently Asked Questions

Generally speaking, negligence means failing to act as a reasonably careful person would act under the same or similar circumstances.

For example, a person driving faster than everyone else during a rainstorm who loses control of their car and injures someone has likely acted negligently. Reasonably careful drivers—the people the negligent person was passing—were driving slower.

More specifically, Texas defines negligence as the “failure to use ordinary care,” which means “failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.” Ordinary care refers to the “degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.” Both of these definitions come from the pattern jury charges (or instructions) that Texas courts use. There can be variations on the above definitions depending on the case, but they are the general rule. 

There are different types of product liability cases in Texas, just as there are in much of the country. A few of the most common types of product liability cases are discussed below.

Manufacturing defect: This means that the product was manufactured in a way that deviated from the intended design and rendered the product unreasonably dangerous. Basically, this type of product liability case occurs when a specific product is manufactured defectively and unsafely, even though the product is usually manufactured safely.

Design defect: A design defect is basically the opposite of a manufacturing defect. In a design defect case, the product is manufactured in accordance with specifications, but those specifications render the product unreasonably dangerous.

Defective warnings or instructions: Companies generally must provide consumers adequate warnings about the dangers of their products, and companies must also provide adequate instructions for how to operate their products. More specifically, companies must give consumers warnings/instructions that would be noticed by an average consumer, and those warnings/instructions must also be comprehensible to an average consumer. Failure to do so, coupled with a consumer being hurt, may result in a claim for defective warnings or defective instructions.

Premises liability cases generally refer to situations where someone is injured by an unsafe condition on another’s property. A common example would be a slip-and-fall case at a retail store. In Texas, liability in these types of cases depends on a lot of variables. One of the main things at issue, however, is the injured person’s status on the property.

Invitees: If a landowner invites the injured person onto the property, the injured person is generally considered an “invitee.” This is usually the case in commercial and retail settings, where businesses invite customers to come in and shop. Invitees receive the greatest protection under the law.

Licensees: If a landowner permits the injured person to come onto the property, but does not invite them onto the property, the injured person is likely a “licensee.” For example, if you own a farm that is adjacent to your neighbor’s farm, and your neighbor permits you to pass through their property to move your equipment efficiently, you are probably a licensee. Licensees receive some protection under the law, but not as much as invitees.

Trespassers: People who do not fall into either category above are usually considered “trespassers.” They receive the least amount of protection under the law. Trespassers generally do not have a claim unless the landowner is grossly negligent, which is very difficult to prove.

The categories described above are straightforward in theory, but there are a lot of exceptions and nuances. As mentioned above, these cases depend on a lot of variables.

Texas follows a concept known as “proportionate responsibility.“ The jury determines each person’s percentage of responsibility. The jury’s determination takes into account if a plaintiff is themselves at fault.

The jury can divide responsibility among the plaintiff, the defendant(s), any person who previously settled out of the case, and even people known as “responsible third parties.” 

A plaintiff’s ultimate recovery, if any, is then reduced in accordance with how the responsibility is divided. This concept is governed by Civil Practice and Remedies Code, Chapter 33.

One big factor is the plaintiff’s percentage of responsibility, if any. Under the law, a plaintiff cannot recover any compensation if their responsibility is greater than 50%.

Bad faith claim: This is a claim a person who has insurance (the insured) makes against their insurance company (the insurer) alleging that the insurance company is acting in bad faith by denying coverage. 

In Texas, most bad faith claims are created by statute, found at the Insurance Code, Chapter 541, as well as the Business and Commerce Code, Chapter 17. This latter authority is the Deceptive Trade Practices Act, specifically made applicable to insurance companies by section 17.50(a)(4).

In a nutshell, an insured pays premiums on their insurance policy and the insurance company has an obligation to fulfill their end of the bargain when it’s time to pay benefits. If the insurance company fails to do so, the insured may be able to sue them for bad faith. In dealing with your insurance company, it is important to know your rights. In Texas, consumers have various rights that the Texas Department of Insurance has detailed here.

Insured: This is the person who is covered by an insurance policy.

Insurer: Also sometimes called a “carrier,” this is simply the insurance company.

Medical (hospital) lien: A lien essentially means a right to collect a debt. There are a lot of different types of liens, e.g., tax liens and child support liens. But the most common lien we encounter in injury cases is a medical lien.

A common example: you are injured by someone else’s negligence; you go to the hospital and receive medical treatment, but you cannot afford to pay the full bill (perhaps your insurance only covers a portion or perhaps you have no insurance); you then owe the hospital money. However, because you are not at fault, the hospital may choose not to try to collect from you. Instead, the hospital may pursue a lien on any future recovery from the negligent person. In Texas, medical liens are governed by the Property Code, Chapter 55.

Policy: This is simply the insurance contract. It governs the relationship between the insurer and the insured. The “declarations” page generally provides a good overview of coverage.

Subrogation: This is a technical term representing a very simple concept: paying someone back. Oftentimes, insurance companies have subrogation rights when their insured is injured by someone else’s negligence.

A common example: you are injured by someone else’s negligence; you go to the hospital and use your private health insurance to receive $10,000 worth of medical treatment; your health insurance company likely has a subrogation right to seek repayment from the negligent person. 

Put another way, they have a right to be paid back by the person at fault for the expenses. If you later receive a settlement for $20,000, you usually cannot just pocket the money without first resolving their subrogation interest. Subrogation can arise in a lot of different contexts, sometimes due to a contract and sometimes due to a statute. However, the most common is with private health insurance, which is governed by the Civil Practice and Remedies Code, Chapter 140.

Third party v. first party: This is confusing. And insurance companies sometimes forget most folks do not work in the insurance industry. Again, however, it is pretty simple when you break it down.

In the insurance relationship, the “first party” is the insured. The “second party” is the insurer (the insurance company). The “third party” is someone else. Just as it sounds, a third-party claim is made by the third party. Most commonly, if you are in a car wreck and injured by a negligent driver, you are the third party. The negligent driver is the first party; the negligent driver’s insurance company is the second party; you are the third party. Third-party claims are also sometimes called “liability claims,” meaning you are trying to hold someone liable.

Another type of claim is a first-party claim. Just as it sounds, this is a claim made by the first party (the insured person) pursuant to a policy they’ve purchased. For example, if you file a UIM claim with your insurance company (discussed below), that is a first-party claim. A bad faith claim (discussed above) is a first-party claim as well. Another example would be if you file a claim for damage to your home pursuant to your homeowner’s insurance policy.

UIM Coverage / Underinsured or Uninsured Motorist Coverage: Imagine this scenario: you are in a car wreck caused by another driver’s negligence; you have sustained $50,000 in damages; the other driver only has a minimum liability policy (usually $30,000) or, worse yet, they broke the law and have no insurance at all.

This is where UIM coverage comes into play. This is a type of coverage that you elect with your insurance carrier. It provides additional compensation to you if you are injured by someone else’s negligence and that person lacks sufficient coverage to compensate you. In Texas, UIM coverage is generally governed by the Insurance Code, Chapter 1952, Subchapter C. The Texas Department of Insurance also has a good overview available here.

When someone is injured by someone else’s wrongdoing, the injured person may be entitled to compensation. This compensation is also referred to as “damages.” There are three general types of damages: economic; noneconomic; and exemplary or punitive. Damages are generally defined at Civil Practice and Remedies Code, Chapter 41.

Economic or “Pocketbook” Losses: Economic damages can be thought of as pocketbook losses. These are the damages that can be readily quantified. Texas defines these as “compensatory damages intended to compensate a claimant for actual economic or pecuniary loss.” 

A simple example would be if someone is injured and misses two weeks of work; assuming they were not paid or compensated otherwise, the two weeks of missed pay would be readily quantifiable.

The calculations can be significantly more complex. For example, if a 30-year-old accountant is negligently killed, an expert economist can calculate what an average accountant would have made from that point forward. This calculation would take into account age, experience, length of career, geographic area, life expectancy, etc. It is complex, but it can be done.

Noneconomic or “Human” Losses: Noneconomic damages can be thought of as human losses. These things are not readily quantifiable, but they are certainly not worthless. In short, these represent losses for the things we cherish in everyday human life.

Texas defines these as “damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages.” 

For example, if someone sustains a back injury and can no longer go on hikes, which was their favorite hobby, that would be a human loss. If a parent is injured and can no longer play with their young children, that would be another example of a human loss.

Exemplary or Punitive Damages: These are reserved for rare cases where a wrongdoer should be punished through the civil justice system. (Mind you, most punishment from the law occurs through the criminal justice system). 

Texas defines these as “damages awarded as a penalty or by way of punishment but not for compensatory purposes.” In other words, these are punishment for the sake of punishment, nothing else. They are reserved for rare cases where a wrongdoer has acted intentionally or with gross negligence, and the person seeking these is required to meet a higher standard of proof. These damages are rare, but the law authorizes them in some situations.

For purposes of this overview, civil rights can generally be thought of as constitutional rights, that is, rights that are protected by the United States Constitution. This would be things like the right to be free from unreasonable searches and seizures; the right to equal protection under the law; and the right to free speech.

In the criminal setting, these rights are enforceable through the ordinary criminal process. For example, if a police officer conducts an unconstitutional search of someone and finds incriminating evidence, that evidence may be suppressed at trial because the police officer acted unconstitutionally.

Over time, Congress recognized that citizens also needed a private (civil) way to enforce their constitutional rights. After all, not every case proceeds all the way to a criminal trial. Congress took action by passing legislation.

The most commonly used law for enforcing civil rights is 42 U.S.C. § 1983. This law is pretty straightforward—if a state or local government employee uses their government position to violate a citizen’s constitutional rights, the citizen can file a lawsuit. The citizen can recover damages (money) and, in some cases, their attorney’s fees, thereby encouraging private enforcement of this law. 

Civil rights claims come in a lot of shapes and sizes, including claims involving police officer misconduct (excessive force), gender or race discrimination in public employment (equal protection), and restricting speech (free speech). Sometimes, these constitutional claims can even be joined with other civil rights claims that are protected by other laws (e.g., laws that prohibit employment discrimination).

Generally speaking, the federal government cannot be sued. There is a long-established doctrine known as sovereign immunity that says the government is immune from suit. Accordingly, the government can only be sued if they (the government) has given permission to be sued.

When it comes to negligence, the government has given such permission through the Federal Tort Claims Act (FTCA). The FTCA allows tort claims against the federal government. This law says that the federal government can be sued for its own negligence and some other torts. There are notable exceptions and various procedural technicalities, but the government can be sued nonetheless.

Claims can vary a lot, including car wrecks with federal vehicles, medical malpractice by federal doctors, and even negligence by federal law enforcement agencies. 

Typically speaking, a person who has been harmed must present their claim to the appropriate federal agency in an attempt to resolve the matter without going to court. This is considered an “administrative claim” or “exhaustion of administrative remedies.” If that does not resolve the issue, a plaintiff can go to federal court.

Importantly, a plaintiff is not required to sue in Washington D.C., where most federal agencies are based; a plaintiff can sue where they live or wherever the harm occurred.

Military members are usually barred from bringing claims against the military itself due to something known as the Feres doctrine. However, that does not mean justice is unobtainable.

When third parties, such as contractors and equipment manufacturers, contribute to a military member’s death, they may be liable.

There is also a statutory exception to the Feres doctrine that allows certain types of medical malpractice claims to be pursued.

Additionally, when on a military base, military members’ families may be harmed by someone else’s wrongdoing. When that happens, they may be able to pursue a claim, whether against the military or someone else (such as an individual person or a contractor).