If you ask most attorneys to explain how Texas personal injury law works to you, many of them will respond, "Trust me, I've got this." From our perspective, without understanding the basics of Texas personal injury law, you will lack the tools to make the best decisions for you about your case and find yourself hoping that your attorney lives up to his promises.
That's not how our firm operates. While many clients initially seek us out because of our 30-plus years of experience handling personal injury cases, successfully resolving their case inevitably involves clients making decisions that are best for them. How is anyone supposed to make such important decisions without a basic understanding of how the law works?
We compiled this guide to Texas personal injury law for the purpose of making the law understandable to non-lawyers. It is broken up into chapters, where we break down key legal concepts in ways that are easy for anyone to understand. Our goal is to give you the tools you need to not only select the lawyers best equipped to handle your case, but also equip you to ensure your attorney is doing what they must to successfully resolve your case.
If you have a specific question or would prefer to discuss your issue with a real person, feel free to skip reading and give us a call. We're passionate about the law and explaining it to anyone who needs help.
Chapter 1 — Where Does Personal Injury Law Come From?
No single source exists for Texas personal injury law. As frustrating as it is for most people, you can't go down to your local library (or even a university law library), check out a book, and know everything you need to know about personal injury law. For this reason, very few people have a solid grasp of what "the law" really means in a personal injury case, outside of attorneys who make it their practice.
Understanding the Difference Between Criminal Law and Personal Injury Law
In the realm of criminal law, if someone drives drunk and hurts someone else on the road, the state of Texas will prosecute the driver for intoxication assault. The state doesn't just represent the victim, but all Texas residents in the fight against drunk driving. Since criminal law involves the power of the state brought to bear against an individual citizen, with that citizen's freedom hanging in the balance, criminal laws are written down (i.e., codified) into statutes which anyone can access and which are spelled out in plain language. When someone is prosecuted criminally for DWI, the district attorney references a specific DWI statute.
Strange as it may seem, there usually is not a similar statute in civil law for suing the drunk driver for the injuries he caused the victim. Instead, the victim will force the drunk driver to hand over just compensation by invoking non-statutory law. The court-developed means of doing this have been around for centuries; we call this case law.
Case law is a collection of decisions that our courts have made over the years. Once a court rules one way or another on an issue, future courts can invoke that ruling as a blueprint which tells them how to handle the case before them. This collection of case law is where the bulk of personal injury law comes from.
Now, that doesn't mean that there are no statutes which apply to personal injury cases. Rather, personal injury statutes are few and far between, whereas an amazing volume of precedent-setting cases makes up the bulk of personal injury law.
How Do Common Law and Statutory Law Add Up to Personal Injury Law?
By and large, what was said above adequately describes the majority of personal injury law; most of it is based on common law legal theories, not statutes drafted by lawmaker. However, when common law legal theories are not specific enough (or if they're just not well liked), lawmakers can step in and create statutory law which overrides common law. So how do we know which applies?
When lawmakers are silent on a subject, common law applies. But when lawmakers address a particular type of accident or injury scenario and prescribe a definite remedy (or take one away), common law takes a back seat to this new statute. Further, some types of personal injury cases only exist because they are created by lawmakers and there was no common law theory that allowed for suit to be filed before the advent of the new code.
So statutory law can both give and take away. For instance, the Texas Survival Statute created a right to sue where one did not previously exist under common law, and the Texas Workers' Compensation Act took the right to sue away where it once did exist under common law.
As if that's not tricky enough, most personal injury cases are based on a combination of statutory law and common law, so an attorney really must understand both in order to really help their clients. Understanding statutes and code is pretty easy, you just read the law. But understanding case law is a lifelong process. It is always evolving. In order for a lawyer to be good at his job, he must constantly read court decisions to learn of new developments in case law.
Here is an example that illustrates what a lawyer needs to know in order to handle a routine car accident case (which is about as simple as a case can be):
Car Accident Example: Steve is driving down the road and a drunk driver rear-ends him, resulting in a back injury which requires surgery to repair.
In order for his lawyer to help him, the lawyer will have to know:
- The ins and outs of common law theories of negligence (for the claim against the driver);
- The Texas Dram Shop Act (for the claim against the alcohol provider);
- The various court cases in Texas which established what types of losses one can sue for and what types are not recoverable;
- The infamous Haygood v. Escobedo case in which the Texas Supreme Court created the concept of compensation for medical expenses being subject to the paid and incurred cap;
- Various provisions of the Texas Insurance Code;
- And various sections of the Civil Practices and Remedies Code which will dictate the applicable statute of limitations, determine the venue where the case is filed, and provide the formula for calculating the limit on punitive damages.
And these are the things that an attorney must know to handle the simplest kind of case. No matter how obvious the personal injury case appears, a lawyer must draw from numerous sources of law in order to know what to do. As a result, your rights and remedies come from a marriage of case law and statutory law. Just like quiltmakers stitch together seemingly unrelated pieces of fabric to make a single blanket, pieced together, these different sources are what we commonly refer to as Texas personal injury law.
Chapter 2 — Can I Just Fill Out Some Forms To Get My Compensation?
Most people intuitively know that when another driver hits them, that driver is responsible for any resulting damage. Where things get confusing for most people is when they must figure out how to turn that responsibility into payment. Many people just want a simple process, where they fill out some forms and get money for their losses.
For example, if you purchase life insurance, your spouse and children (or whoever else you name) are entitled to the funds when you die. In most cases, it is relatively simple for them to get their claim paid. They fill out some forms, prove through birth and marriage certificates their relation to you, and the funds should be disbursed. This is because, by contract, they are eligible for the insurance you set up for them. Such a claim is what we call an "eligibility-based claim."
This is not how personal injury law works at all.
There are no forms filed with the state or a private company that entitle you to payments for what you've lost. That's because personal injury claims are not eligibility-based claims, they are liability-based claims, meaning that the defendant is only obligated to pay once you have proven their liability.
You Can't Just Fill Out Forms to Get Compensation in a Personal Injury Case
Why? Why not simply streamline the claims process? There are many reasons, but perhaps the simplest is the most obvious: people would abuse it. You'd have people filing serious personal injury claims against their exes, quarterbacks from rival football teams, and just about anyone with money to go after, and there would be no judge to play referee and no jury to set the standard. The concept of only making someone pay after they're proven to be liable—after a fair and full airing of the details—stretches back to Roman times.
We still use the same process (the civil jury trial) to determine when someone is eligible to be compensated because it's still the best system that anyone has come up with. It flies in the face of fairness to arbitrarily award money to someone without a testing of the facts and an opportunity to cross-examine one's accuser face-to-face.
Personal Injury law is not like Social Security. You are not entitled by a statute to receive compensation; you have to go get it by proving to a jury you deserve it. When you're the victim, it may seem like a cumbersome, time-consuming process, but that same process is what keeps dishonest people from making unfounded claims against you.
Chapter 3 — Personal Injury Cases Are Negligence Cases* (Generally)
One instance when the law allows people to pursue personal injury claims is when another person intentionally harms them. The best example of this is the wrongful death lawsuits brought against O.J. Simpson by his victims' families in the 1990s. They alleged that Mr. Simpson intentionally killed their loved ones and a jury agreed, awarding money to those families. However, this kind of lawsuit is the exception to how most personal injury lawsuits work. When we speak of personal injury lawsuits, we most commonly discuss lawsuits that begin with another person's negligence.
Most people have heard, or even used, the word "negligence" in everyday life, but few know what it means in a legal sense. It is derived from the same root word as neglect, so, obviously, it means to ignore something. When someone is being negligent, the something that is being ignored is their legal responsibility to not hurt people. Altogether, that means that we can think of the term negligence as a succinct way of saying that someone neglected their responsibility to be safe.
How to Think About Negligence
We hear of "negligent spouses" or "negligent parents" and think of people not living up to their reasonable responsibilities. Notice there's a difference between a negligent parent and an abusive parent: while both cause harm, one is the result of an intentional action (abuse) whereas the other is more of a conscious indifference (negligence).
In personal injury cases, the perpetrator is usually simply negligent. Think not paying attention to the road before changing lanes, not ensuring adequate safety measures are in place for workers, or a doctor hurrying a patient through an exam rather than doing a thorough job. In other words, we're not usually talking about overtly criminal behavior, just failing to do what should have been done.
Texas Law Doesn't List Every Specific Act of Negligence
Interestingly, there is no statute or law that actually lists out all of the types of actions that constitute being "negligent." This makes personal injury law rather unique. For example, in the criminal realm, driving 10 miles over the posted speed limit is against the law—everyone knows when they're driving too fast, a police officer might well pull them over. Also, in real estate law, if you walk onto someone's property without permission, that's trespassing.
The Texas Legislature has decided that these actions are illegal long before they ever even occur, and such forbidden conduct is specific listed in various bodies of statutory law. But there is no statute that labels "looking down at your cell phone for 10 seconds while driving" as negligent behavior, but that's because there doesn't need to be. Simply having laws that proclaim someone is obligated to pay once a victim proves their negligence allows you to sue them under a theory of negligence for any conduct that a jury says is negligence.
One of the earliest reported negligence cases in the modern era concerned a barrel that fell out of a warehouse and landed on a passerby. There was no law about barrel storage at the time, but a court simply applied standard negligence principles and found that the warehouse was responsible for the damages the barrel caused. Cases like this develop without the need for the legislature to come in and tell courts what to do. They just evolve, and because of that, you don't need "barrel drop laws" or any other such specific laws. Just having negligence laws is sufficient to cover practically all scenarios that can come up.
How Do We Determine What Is Negligence and What Is Not?
Now, before you panic and say, "Can't juries just say anything is negligence?" there are two things that need to be considered. First, juries are regular people, and they don't typically make defendants pay for unavoidable accidents just because some lawyer thinks they should. Second, juries can't arbitrarily decide that some conduct is negligent conduct.
In order to prove something (anything) to the court, in any type of case, you have to provide evidence which establishes that the actions of the accused meet the legal definition of the allegations. All legal accusations consist of individual components called legal elements. For instance, if you allege that someone broke a contract with you, you must first prove to the court that a contract existed, and a contract is a specific legal thing, so simply showing that any old agreement was in place is not sufficient.
You must instead prove to the jury that your agreement had all of the right elements to be considered a contract. Only after you prove that your agreement has all the right elements to be considered a contract can you then move on to the task of showing that the defendant breached the contract. Think of elements as ingredients: you take out one, and it's no longer what it claims to be. A chicken sandwich has to have two pieces of bread and chicken; take out any one of the three, and it's something other than a chicken sandwich.
Here's an example grounded in the law: To convict someone of murder in the first degree, a jury has to be convinced by the evidence that the defendant's conduct meets the following elements:
- He acted unlawfully,
- resulting in death,
- of another human being,
- without legal justification,
- with malice of forethought.
If the evidence showed that the defendant did all of those things but one, that's not murder in the first degree. Remember, all of the individual elements must be proven in order to convict someone in criminal court, and the same thing applies to negligence allegations in civil court. You must prove that the particular conduct that the defendant engaged in has all the right elements to be considered negligence.
What Are the Elements of a Negligence Case?
A negligence case is one where the plaintiff argues that the defendant accidentally hurt the plaintiff by acting unreasonably. In order to win their negligence case, the plaintiff must prove four elements:
- The defendant owed a legal duty to the plaintiff;
- The defendant breached the legal duty;
- The plaintiff indeed suffered injuries;
- The breach was the proximate cause of the plaintiff's injuries.
If the circumstances that caused your injuries check these four boxes, then you likely have a valid negligence claim.
Back to the hypothetical of the person texting while driving which caused your injuries, you can see now why we don't need laws that say, "someone who caused an accident while texting and driving must pay a plaintiff." Instead, you just sue them under a theory of negligence, show to the court that the act of texting while driving is indeed negligent conduct, and then the jury will make them pay.
In many respects, a personal injury claim boils down to answering the question, "Who caused your losses?" So, let's take a closer look at what victims must do to prove to a court that another person caused your injuries.