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 Claim?
What, then, are the elements of negligence? There are four:
- The defendant owed a legal duty to the plaintiff;
- The defendant breached the legal duty;
- The breach was the proximate cause of the plaintiff's injuries;
- The plaintiff indeed suffered 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.
Chapter 4 — More on Proximate Cause
One of the elements of negligence mentioned above is the element of proximate cause. Proximate cause is a legal term of art that basically means the main cause or the most important cause.
An Example of Proximate Cause
For instance, if someone drops a brick off of a ladder onto a person below, what was the main or proximate cause of the victim's injuries? Well, looking at it from a logic perspective, what caused the brick to fall was:
- Which is really caused by the brick's interaction with spacetime
- Which is largely dictated by the brick's mass
- Which was predetermined by the person who made the brick
- Which was predetermined by the person who designed the brick
- The person letting go of the brick
- Which is the result of muscle contractions
- Which were caused by impulses traveling from the brain to the muscles
- The person choosing to let go of the brick
If you think about it long and hard enough, there are many causes and sub-causes of how or why the brick fell, and the above list can go on for pages. But the proximate cause, the main cause, was clearly the brick-holder's conduct. All the rest are indeed causes, but they are not worth considering.
By now, you may be thinking, "Okay. I get it. The act of dropping the brick is the proximate cause, and that makes sense intuitively. But what is the legal reason that dropping the brick is the proximate cause?"
What Elements Determine Proximate Cause?
In the same way that negligence has elements, proximate cause has its own elements. The elements of proximate cause are foreseeability and cause in fact (AKA, the but for test).
Foreseeability - To foresee something is simply being able to reasonably anticipate that it can occur. A defendant has to have been able to reasonably foresee that their conduct could cause the type of harm the victim sustained. If they couldn't possibly have guessed that their conduct was dangerous, then the personal injury was not foreseeable.
Cause in fact - To determine cause in fact, we use the but for test. "But for X occurring Y would not have happened." For instance, but for the person on the ladder deliberately letting go of the brick, the injury would not have happened.
How Do Foreseeability and Cause in Fact Work in Practice?
The best example of how foreseeability and cause in fact add up to equal proximate cause is the famous (and somewhat absurd) case of Palsgraf v. Long Island Railroad Company. In this case, a man was boarding a crowded train and two railroad employees tried to assist by pushing the man into the train. In doing so they knocked a package out of his hands.
As fate would have it, the package contained fireworks which spilled out onto the rails. The fireworks were ignited, and then they exploded every which way. One of the fireworks (or perhaps the shockwave from them) knocked over a large scale at the end of the rail platform, and the scale landed on Ms. Palsgraf, causing injuries. She sued the railroad alleging that they the railroad employees' negligence caused the chain reaction that resulted in her injuries.
Ultimately, she lost her case because she couldn't prove that it was foreseeable to the railroad employees that pushing the man could have set off such a chain reaction. Sure, she was able to prove that the employees' conduct was the cause in fact of the accident (since you could say, "but for the employees pushing the man the fireworks would not have fallen onto the rails").
But since it was determined that the employees could not possibly have foreseen that such harm could be caused by pushing the man, the court concluded that Ms. Palsgraf did not meet the legal burden of proving all of the elements of proximate cause, which, by extension, meant that she did not prove that the railroad was negligent.
How Can Proximate Cause Impact Your Case?
Where proximate cause usually becomes a problem is when there are subsequent bad acts undertaken by other bad actors. To use an extreme example, let's say Sue throws Bob into a lake outside of Austin. Unbeknownst to anyone, a nearby circus has negligently released several African crocodiles and Bob gets eaten by a croc. Can we really hold Sue responsible for that? It's true, yes, that but for her action, Bob wouldn't have been in the water in the first place. Still, there's no way Sue could have foreseen the crocodile. The law would require a court to not penalize Sue, even though her conduct met most of the elements of negligence.
Also, this frequently becomes an issue when there are pre-existing medical conditions. If you had back problems before you got into a car accident, you could not pin those injuries onto the negligent driver who hit you unless you can prove that the driver made your problems worse. Let's put it in simplistic terms: If your back injury cost you $100 a month in medication, and the injury increased the costs to $150 a month, then the defendant proximately caused the extra $50 a month in costs, not all of it.
All of what has been said about negligence so far is really talking about what we call ordinary negligence. We call it ordinary negligence because, as you're about to see, there are other special types of negligence.
Chapter 5 — Personal Injury Causes of Action
You might have heard of the phrase "cause of action." While it might sound like a Schwarzenegger movie, it's really just another way of saying "a right to sue." The law does not allow people to be hauled into court for just any reason; instead, courts and legislatures require litigants to file claims against each other on grounds that are already understood by the court. The "already understood mechanism by which you can sue" is the cause of action.
When you sue someone in a negligence-based case (as we described before), the technical way of describing it is to say that you are suing them under a negligence cause of action. Likewise, in contract law, when someone violates the terms of a contract, you are suing them under a breach of contract cause of action. Or when someone slanders you, you sue them based on a slander cause of action. Negligence causes of action are by far the most common causes of action applied in personal injury law for the simple fact that the law doesn't identify every type of wrongful conduct with its own law, so when you have been hurt by some type of dangerous conduct, you sue under a negligence cause of action, and it's probably got you covered.
How Is a Cause of Action Created?
Notwithstanding that fact, there are however laws that do address specific conduct. Let's restate that to be crystal clear—The personal injury laws of a given state don't normally list all of the types of bad conduct that create a cause of action, but that doesn't mean they never write laws that do list specific bad conduct. Sometimes politicians will latch onto a specific public safety issue and they will effectively say, "Yes, you can sue someone for doing X using a typical negligence cause of action, but we think that this problem is so bad that we will instead make a law that specifically creates a new type of cause of action for that conduct, rather than relying on the common law negligence cause of action."
So what you end up with is a mixed bag. When the written laws say nothing about some particular conduct but that conduct still meets the definition of negligence, you sue them alleging a negligence cause of action. But when the written laws do address the particular conduct, a new cause of action is created by that statute, and it replaces the common law negligence-based cause of action.
All that to say that when someone hurts you, you can usually sue them under a regular negligence cause of action, unless there is some more suitable cause of action based on a law drafted by a lawmaker.
So if a negligence cause of action isn't the only legal theory by which you can sue someone, what are ALL of the personal injury causes of action? Well, there are many of them, but they all fall under the following categories:
- negligence causes of action (which we've already covered)
- negligence per se causes of action
- statutory causes of action
- gross negligence cause of action
Let's run through those types of causes of action. To make them easier to understand, we will assume that you now are familiar with what makes a regular negligence cause of action tick, and we will simply compare and contrast these new types of causes of action to what you already know.
Negligence per se
Per se means "in itself." So negligence per se refers to conduct that is inherently negligent in itself. In other words, such conduct is simply understood to be negligent, you don't have to illustrate that it is. When a defendant engages in inherently negligent conduct, you can sue them under a negligence per se cause of action, rather than an ordinary negligence cause of action. But how do we know what conduct is inherently negligent? The answer: it's conduct that is also criminally illegal in addition to being negligence.
If there is a law stating that some conduct is a criminal offense AND that conduct happens to also happen to reflect unsafe behavior, then, by engaging in said conduct, the defendant has committed negligence per se. A good example would be that of car accident cases involving someone running a stop sign. Since there is a law that says running a stop sign is a criminal act, and since it is also a negligent act, it is understood to be inherently negligent and you sue the stop-sign runner under a theory of negligence per se and not under a theory of ordinary negligence.
In practical terms, by suing for negligence per se, you don't have to prove to the jury that what they did was negligent (by proving all of the different elements of negligence like duty, breach, etc.). Instead, you just have to prove that they did the thing that the criminal law says they can't do and it's understood that they are negligent by default; i.e., negligent per se.
Statutory Cause of Action
A statutory cause of action is a pretty simple concept. Lawmakers write some specific civil law (as opposed to a criminal law) that creates from scratch a cause of action that didn't exist before.
For example: Under common law, governments enjoy sovereign immunity, which means that they can't be sued no matter how negligent they may be. However, lawmakers in Texas realized that it's unfair to not allow people to sue the state when the state hurts them, so they passed a statute called the Texas Tort Claims Act, which allows injured citizens to sue the State of Texas, municipalities, and what they call "local governmental bodies" (which basically means school boards, counties, etc.).
A unique feature of some statutory causes of action is that you just have to prove that the defendant did the thing the statute forbids, and you don't have to translate that into a negligence argument (usually). So if there exists a statute that says walking a dog on Wednesdays is a wrongful act that you can sue someone for and your neighbor walks their dog on Wednesday, you don't have to prove that the neighbor was negligent, just that they walked their dog on Wednesdays.
Now, where things get tricky is that some statutes create the cause of action but then still require you to treat it as a negligence case. That's not worth delving into too far, just understand that the statute can say whatever the lawmakers want it to say, and typically a statutory cause of action just requires that you show the defendant violated the statute.
Lastly, it's important to note that sometimes lawmakers take an existing common law negligence-based cause of action and then they replace it with a new statutory cause of action. Usually when this is done, the goal is to limit your ability to sue. For instance: Once the first Texas court in the late 1980s said that a bar's improper service of alcohol was a type of negligence that they could be sued for, this set precedence that enabled anyone injured by drunk drivers to sue the bars that served the drunk.
Our state's lawmakers decided that such vague concepts of "improper service" or "negligent service" of alcohol would be too nebulous for bars or accident victims to interpret, so they replaced the newly created common law negligence-based cause of action against bars with a statute called the Texas Dram Shop Act. The act spelled out specifically what a bar has to do to be liable.
Gross Negligence Causes of Action
Lastly, personal injury lawsuits can also be based on a gross negligence cause of action. Gross negligence is different from ordinary negligence in that it is the most extreme form of negligence. Gross negligence is defined as "negligence which shocks the senses." So if what a defendant did to cause your injuries would elicit a gasp from the jury, chances are, that's gross negligence.
For example: We handled a case once where a gentleman was working on a personnel platform that was hoisted about 60 feet into the air by a crane, so that he could weld rebar on a concrete form. The owner of the company he worked for got into a literal fist fight with the person operating the crane, which led to the crane operator to hit the wrong lever, causing the man on the personnel platform to fall to his death.
Rather than calling 911 to try and save the dying man, the owner of the company got into his car and drove to a nearby pawn shop to purchase an OSHA-required safety harness that the worker should have been provided within the first place. The owner of the company then drove back to the worksite and attached the safety harness to the now-deceased worker's lifeless remains. He then lied to OSHA and police investigators, telling them that the decedent was wearing the harness the whole time and that he must have forgotten to tie it off to the crane. That is gross negligence.
The primary feature of a gross negligence cause of action is that it enables you to sue for a different type of compensation. We'll cover this in more detail below, but ordinary negligence cases enable you to sue for what amounts to reimbursement of your actual losses, whereas a gross negligence cause of action allows you to sue for extra compensation to punish the defendant for their egregious conduct.
Regardless of the cause of action, the goal of a personal injury case is to obtain compensation for the victim's losses. We'll delve into that further in the next section.
Chapter 6 — What Compensation Is Available In a Personal Injury Case?
Everyone knows that the entire purpose of filing a personal injury lawsuit is to obtain some level of justice for the victim. No jury can ever give a victim back all the days he or she suffered in pain, missed work, or any future sufferings that will occur. The best thing a jury can do is offer some kind of financial compensation to the victim. We call compensation paid to victims damages.
How Do Juries Determine How Much Money to Award Victims?
But juries are not allowed to simply pick a number out of thin air to award the victim. Juries must carefully weigh what exactly a victim lost and then arrive at a dollar amount proportional to that suffering. These damages must be tied to something specific, but there are no statutes that explain exactly what the number is. Instead, juries are required to weigh different types of evidence of both economic and non-economic damages and arrive at a reasonable figure.
A common example of economic damages is lost wages. If a personal injury caused the victim to lose a month of work, then the jury would have the reasonably easy job of doing simple math of what the victim's wages would have been and then simply awarding that amount.
However, the law allows victims to receive compensation for non-economic damages that are no less real or important, even if they are more difficult to put an exact figure to. In serious personal injury cases, victims can be impaired for the rest of their lives. They might not be able to walk, pick up their children, see correctly, or have the same marital relationship they had before.
Just because it's impossible to use market-based analytics to determine how much, for instance, never seeing a sunset again or never being able to be intimate with your spouse again is "worth," that doesn't mean the perpetrator of the personal injury should not be forced to pay.
Who Decides Which Types of Damages Apply in a Texas Personal Injury Case?
It's worth pointing out that Texas courts and lawmakers have zeroed in on the types of damages they think you should be allowed to sue for. If there is no case law or statute that says you can sue for a particular type of loss, you can't sue for it and a jury can't award it to you. For instance, some states allow you to sue for negligent infliction of emotional distress (NIED).
The idea behind NIED is that someone's carelessness caused you to experience severe emotional distress (such as PTSD) and you can make them pay for that distress. Texas does not allow you to sue for NIED. You can sue for some losses and not for others, so it's important that you understand which types you can and can't sue for.
Personal injury damages come in two main forms, compensatory and exemplary. Compensatory damages are those which as designed to compensate you for what you've lost, and there are a few categories of compensatory damages. Exemplary damages are those that are paid above and beyond what you lost in order to punish the defendant.
Personal injury damages you can sue for under Texas law:
Damages can be physical, emotional, or financial. Texas courts recognize 13 types of damages in personal injury cases. They are:
- Medical expenses, past and future - This means that an injured person has the ability to recover the cost of treating the injuries incurred as the result of someone else's carelessness.
- Loss of past earning capacity - If you were unable to work because of your injury, then you may be compensated for lost wages.
- Loss of future earning capacity - Many injuries prove so severe that the injured person is unable to return to their previous career, or in some cases, work at all. These damages compensate victims for that loss.
- Loss of consortium - The law recognizes that certain relationships, like those between a husband and wife, or a parent and child, are irreplaceable. When another's carelessness damages or destroys these relationships, the person whose actions destroy that relationship may owe compensation.
- Physical Impairment - Compensates victims for the lower quality of life they enjoy as a result of an injury.
- Physical Disfigurement - Some injuries leave horrific scars, mangled limbs, or other features that make the victim stand out from a crowd for the rest of their lives. This category of damages compensates victims for the mental and social costs associated with such injuries.
- Loss of Household Services - In addition to emotional bonds, families also thrive by dividing tasks among themselves. Laundry, lawnmowing, cleaning, cooking, even minor home repairs all save families money. When the person who usually performs these tasks can no longer do so because of an injury, the family suffers a real loss, which costs money to replace.
- Mental Anguish, past and future - Accidents don't just leave physical scars. People can suffer depression, anxiety, and other mental issues after a serious injury. Victims can recover compensation for these losses.
- Exemplary Damages
- Exemplary Damages (AKA Punitive Damages) - Punitive damages are sort of like a fine a jury makes a defendant pay to an injured person above and beyond the quantifiable losses the injured person has incurred. In personal injury cases, punitive damages are available to victims when they can prove that the person or business who hurt them engaged in gross negligence. Gross negligence is worse than ordinary negligence. To prove gross negligence, the victim must demonstrate that their injuries resulted from behavior that shocks the senses. In other words, their injuries weren't caused by ordinary carelessness, but by a shocking disregard for the safety of others. These damages seek to impose a penalty on bad actors, on top of the costs they inflict on others.
- Remedial Measures
- When bad business practices cause a personal injury, you can often compel the defendant to change their ways. For instance, we once litigated a case against Applebee's regarding a fatal injury that really all boiled down to a misunderstanding by one of their employees. The employee thought they were doing X but instead, they did Y. The really sad part was that there was a readily available explanation chart that would have cleared up all of the confusion had it been made available. As such, one of the terms of settling the case was that the restaurant agreed to make this chart available so that such a mistake would not occur again. Sometimes the simplest things can have a huge impact on safety, not to mention that gestures of this type are usually far more important to grieving families than money. Unfortunately, juries cannot force companies to change their ways, which means that remedial measures are often only obtained when you reach a settlement. We are big fans of remedial measures since they are a great opportunity to avoid the same accident in the future. Getting money for a client feels good. Knowing that a company had to change their ways and that will literally save lives directly feels awesome.
In the interest of being thorough, it's worth mentioning that virtually everything we described above also goes by another name. In legalese, economic damages are also known as "special damages" and non-economic damages are also known as "general damages". The terms mean essentially the same thing. You may also hear attorneys refer to economic damages as "losses of a pecuniary nature." This too just means economic losses.
Personal Injury -vs- Wrongful Death Compensation
Notwithstanding the fact that we have an entire section of our website devoted to wrongful death information, below, we describe the types of damages recoverable in a wrongful death case. They are listed here simply so that you can see that there is a difference between what you can sue for in a personal injury case and a wrongful death case.
- Pain and suffering
- Mental anguish
- Medical expenses incurred
- Funeral expenses (if incurred by estate)
Wrongful Death Damages
Texas law permits those with wrongful death claims to sue for the following types of damages:
- Loss of the Decedent's Earning Capacity - Most people work, bringing in needed revenue to the household budget. In many instances, children and spouses depend on a breadwinner for their financial survival. In those cases, recovering this loss is all that prevents the surviving family members from falling into financial ruin.
- Loss of Advice and Counsel - Close family members often play an outsized role in the important decisions we make in life. Whether it be helping with investing or even purchasing cars and houses at better prices, the advice of close family members can have an impact measured in dollars saved or earned by other family members.
- Loss of Services - Who mows the grass at your house? Who cleans the bathrooms? Who does the laundry? Do you have a family member that doesn't even know how to boil water? Beyond the emotional ties, families also have their own division of labor. It takes a lot of work to keep a household running and losing an extra pair of hands places a burden on most families. That's why the monetary value of replacing the services that a family member provides is recoverable.
- Expenses for Psychological Treatment - For many people, professional help after the death of a loved one is a necessary service. This is particularly true of those who lose a loved one unexpectedly to another person's carelessness. The costs incurred from this treatment are recoverable in a wrongful death lawsuit.
- Funeral Expenses - Recovering the costs of a loved one's funeral in court can be tricky. The law assumes that the loved one's estate pays for these costs, so wrongful death claimants must prove that the costs came out of their pockets in order to recover these losses.
- Mental Anguish - It's easy to confuse mental anguish with expenses for psychological treatment, but there is a difference. Mental Anguish seeks to compensate victims for the pain they experience losing a loved one, which is a separate matter from any costs associated with dealing with that pain. The law recognizes that no one would willingly choose to lose a loved one, so the fact that you did is a loss that deserves compensation.
- Loss of Companionship and Society - These damages recognize that having a spouse, parent, or child has a value of its own, which can't be replaced. They compensate victims for that loss.
- Loss of Inheritance - This is a tricky type of damages. It supposes that had a loved one not met an untimely demise, then their heirs would have received a larger inheritance. Proving these damages requires claimants to prove two things. First, they must prove that the deceased loved one generated income in excess of their needs. A person living paycheck to paycheck is unlikely to leave much to their heirs. Secondly, surviving claimants must prove that it's likely that their loved one would have died before them and left an inheritance in the first place.
- Exemplary Damages - The purpose of exemplary damages is to punish wrongdoers found to have committed gross negligence. Unlike ordinary negligence, gross negligence is an action so careless that it "shocks the senses." The classic example of gross negligence is a person firing a gun into a crowd. They don't intend to kill anyone in particular, but the act is so dangerous that it's likely someone may die.
Now that you know what triggers a personal injury lawsuit and what types of compensation are available to victims, let's move on to discussing how a personal injury case works in practice.
Chapter 7 — How Do Personal Injury Lawsuits Work?
A lot of cases "settle," meaning both parties agree on a dollar amount they'll both accept, out of court. In general, any sort of legal process that requires the use of a court is referred to as litigation. If settlement without court intervention is not something both parties agree to, then the same steps occur in every case:
- A lawsuit is filed. The lawsuit gets drafted up with the important facts and laws included to put the court and defendant on notice of what the victim is seeking, and why.
- The written discovery process begins. Parties exchange all relevant information with each other. This is because we want all the facts out on the table. This process can take over a year. A personal injury victim will want, among other things:
- All the defendant's insurance information
- All recordings of the accident
- All communications the defendant has made with others about the accident
- If the defendant is a business, copies of all relevant written policies and procedures
- After some written discovery, witnesses are subjected to sworn depositions, in which lawyers for each side can ask questions to people with relevant knowledge.
- Once most or all of the facts are known, parties usually meet for mediation. This process allows each side to present their case before a non-binding, neutral third party called a mediator. The goal of mediation is to settle the case, or at least move the ball down the field towards settlement, by way of asking the mediator to hear both sides out and propose a settlement. The mediator's primary job is to talk sense into whichever side is most likely to lose.
- If no settlement occurs, the parties go to trial. Encyclopedia-sized books have been written about the trial process, but suffice it for our purposes to say that each side must submit their version of events to a jury, and the jury decides who is right.
Under special circumstances, usually because of a contractual agreement between the two parties, a trial is not possible.
For instance, in many work injury cases, the employee may have signed a binding arbitration agreement which is a contract that limits the employee's rights to sue the employer in court. Instead, the agreement requires that the case is pursued through a privately-owned pseudo court process called arbitration. Arbitration is considerably different than trial. The principles are the same, but the process is quite different.
Rules of Court and Evidentiary Rules
Getting evidence into trial and using it permissibly requires years of training and a great deal of work. As you can well imagine, explaining how it all works is beyond the scope of this page. Nonetheless, personal injury victims should know some of the rules that will impact how their case plays out.
As a general rule, all relevant evidence can be seen by a jury. However, courts require two main caveats to that rule:
The evidence is reliable. The point of a trial in an personal injury case is to arrive at the truth. We want to know who did what, how, and whether it impacted the plaintiff. Judges don't make preliminary decisions about whether someone is lying or whether they are a bad person, but judges generally try to keep completely unverifiable information away from the jury.
The evidence doesn't cause harm. The law recognizes that life exists outside of the courtroom. As such, judges will protect sensitive information from being made public. A prime example is the spousal privilege, which prevents the disclosure of private conversations between husbands and wives. The following rules directly impact most personal injury cases:
- Selecting the appropriate court venue
- Original Jurisdiction
- Texas evidentiary rules
- Spousal privilege
- Attorney-client privilege
- Priest-penitent privilege
- Medical records
- Psychological records
- Needlessly inflammatory evidence
- Subsequent remedial measures
- Proving up evidence
As you can see, presenting a case in court requires more than just getting on the witness stand and telling your story. In many instances, the establishing a solid evidentiary record of events is the only way a judge will even permit you to discuss certain aspects of your case.
Defenses to Your Personal Injury Claim
Defendants in personal injury cases do not have to sit idly by as you claim that they caused you harm. Instead, the law has developed legally-available defenses, or, arguments they're allowed to make, against you. Most defenses center around showing that you failed to prove all of your accusations. The best example of this is the defense you see in virtually every courtroom TV show featuring a criminal case. The defense lawyer essentially argues not that the accused is innocent, but that the prosecutor failed to prove his guilt, per the evidentiary standard applicable to that case. However, many other defenses in essence concede that you were hurt and hurt by the defendant, but the law bars you from recovering because of some higher social goal. Such defenses are shorthand for "Alright, but so what?"
One very important example for personal injury claimants is the statute of limitations, which requires you to file a lawsuit within a specified time after the accident. Why would we bar someone for waiting to long? Well, think about it this way: after 2 or 3 years, witnesses' memories have faded, important documents will likely be destroyed, and all parties might have serious difficulty in even finding the actually-responsible perpetrator. As a society, we want swift resolution to claims—the statute of limitations is a blunt instrument, perhaps, but it motivates claimants not to sit around.
Here are some of the most common defenses used in personal injury cases:
- Failure to prove elements of cause of action—If you recall, a cause of action is the legal avenue that allows the court to hear your case in the first place. This defense argues that you didn't meet all the elements required to have a valid case, i.e. you didn't make your case.
- Act of God—We only hold people accountable for their negligence when it is foreseeable that their actions could harm others. Sometimes, an event occurs which no one could foresee. We all know we're usually responsible when we crash our car into another person's vehicle. But imagine a scenario where you're driving down the road and a tornado picks your car up and throws it into another vehicle. It wouldn't be fair to punish you in this instance, since you couldn't reasonably foresee crossing paths with a tornado. You would likely be free to argue the Act of God defense in such a scenario.
- Assumption of the risk—There are times when we undertake dangerous activities of our own free will. For instance, many people like to race cars on tracks. Everyone knows that driving cars at high speeds against others increases the likelihood that a crash will occur. It would hardly be just for someone to agree to race on a track, then turn around an sue a person who accidentally injures them. In this instance, a defendant would be able to argue that the driver they injured accepted that it was a possibility when they agreed to race on a track.
- Competitive sports doctrine—Similar to assumption of the risk, this defense acknowledges that injuries are simply a part of sports. So if someone tackles you while playing football and you break your leg, you can't turn around and sue the person for simply playing a game. Sure, the person who tackled you may meet all the elements for a personal injury cause of action, but the fact they did so while playing a game can functionally cancel out their negligence.
- Consent—Have you ever wondered why doctors meticulously go over a planned surgery and have you sign documents giving consent? One reason is that it gives doctors a defense should you decide to sue them later. They can argue that you understood the risks involved and still agreed to the surgery. Another scenario where the consent defense might be relevant would be where two guys at a bar agreed to step outside to settle their differences in a fist-fight.
- Mitigation of damages—This defense allows the person who caused your injury to argue, while they did hit you and are responsible for injuring you, at some point, you failed to take the necessary steps to minimize or mitigate the severity of that damage. What does this mean? Suppose that you're in a wreck and suffer a compound fracture in your arm. Instead of going to the hospital, you decide to go home and let it heal on it's own. Time goes by and your wound becomes infected. Ultimately, you lose the arm. When you sue, the defendant will likely use this defense to argue that while they caused your initial injury, your failure to have it looked at is what caused you to lose the arm and they shouldn't be on the hook for that.
- New and independent cause—The easiest way to understand this defense is through an example. Suppose two people are involved in an accident on a highway. They pull over, exchange information, and traffic backs up due to rubberneckers. An hour later, another car, at the very end of the backed up traffic, rear-ends another vehicle. While logically, one can construct a chain of events that includes the drivers from the first crash as one of the events leading up to the crash, so much time passed and the events are physically so far removed from the initial crash that you can't really blame them for their behavior for the second collision. Therefore, if the rear-end driver in the second collision tried to sue the drivers involved in the first, the drivers from the first crash would argue something along the lines of, "Sure, our crash caused the backup, but our actions had nothing to do with a driver failing to stop in time a mile away and an hour later." That's the new and independent cause defense.
- Sudden emergency—Arguing that a defendant's actions were the result of a sudden emergency is a way for defense teams to excuse behavior that under normal circumstances would be negligence. Simply put, it's a way of arguing that "While this behavior normally means I was negligent, I'm not responsible for my actions because of unforeseeable circumstances." The exact elements of the defense are as follows:
- (1) the condition must have arisen suddenly;
- (2) it must have arisen unexpectedly;
- (3) it must not have been proximately caused by the negligent act or omission of the person whose conduct is being inquired about; and
- (4) the conduct which would constitute negligence under ordinary circumstances must have occurred after the emergency arose without giving the person time to deliberate.
- Suicide—Under normal circumstances, if a driver hits and kills a pedestrian, they likely meet many of the elements of a negligence case. However, if that pedestrian throws themselves in front of a vehicle, then the defendant driver can argue that the deceased intended to commit suicide and is not entitled to compensation.
- Workers' compensation—All of the elements for a negligence personal injury claim are often present in a work injury accident. In other words, there would be a viable claim, but for the fact that Texas law forbids negligence based work injury claims against employers that participate in the workers' compensation system. If an injured worker were to sue such an employer, the employer simply needs to show that they participate in the workers' compensation program, invoke the workers' compensation defense, and the case ends right there.
- Statute of limitations—Texas law allows victims 2 years to file a personal injury lawsuit. This means that if you wait too long to pursue your claim, the person who injured you can use this defense to make your case go away.
It is worth pointing out that the statute of limitations can be extended for a longer period of time (tolled as it's called). Judges typically only toll a statute of limitations if there is an extraordinarily good reason to do so. Some of these reasons are:
- The discovery rule—Essentially, this means that the injured person had no way of knowing that they had suffered an injury at the time of an incident. You may ask, "Well, how can someone not know that they were injured?" The answer is that some types of injuries, such as those caused by exposure to toxic chemicals, don't necessarily show symptoms until years later. In such instances, a judge my toll the statute of limitation, which simply resets the clock to the day when the person discovered that they were injured. That's why it's called the discovery rule.
- Fraudulent concealment—Some bad guys think that if they can hide the evidence of their wrong-doing until the statute of limitations expires, they can get away with hurting people. The courts take a different view. We don't let fraud prevent victims from getting justice. When courts toll the statue of limitations because of fraudulent concealment, they're essentially saying that you can't cheat your way to victory in the courtroom.
If one was so inclined, you could categorize defenses as either being defenses designed to whittle away at your claim or those that are designed to completely destroy it. For instance, arguing that a plaintiff failed to mitigate their damages will have the effect of reducing the value of your case. However, arguing that the statute of limitations has run will, if accurately pleaded, will terminate your case entirely.
Usually, when a defendant has a defense designed to whittle away at a case, such a defense is argued in trial. But when a defendant has an opportunity to argue a defense that will eliminate your case altogether, they usually argue that in a motion for summary judgment hearing. A motion for summary judgment is a motion filed with the court wherein the defendant argues to the judge that, as a matter of law, the case is invalid for some reason and the judge should simply throw it out. These motions are filed in almost every case.
You now have the basic information you need to understand the general outline of your case. While you may not understand technical matters of investigations or court procedure, having a general understanding of how a case works equips you to truly partner with your attorney and hold them accountable for their work. It's our belief that this ensures the best possible outcome in your personal injury case.
Chapter 8 — Frequently Asked Questions
How Much Is My Personal Injury Case Worth?
This a gross oversimplification, but two factors play a major role in determining the value of a case (assuming you don't share any of the blame for your injuries). The first factor is the severity of your injuries. In cases where a trip to the emergency room and minimal follow-up care is all you need, then you're probably looking at a case valued in the thousands of dollars. In most instances where the injury requires surgery to repair, five-figures, or even, low six-figures is probably in the right ballpark. Lastly, some injuries require numerous surgeries, lifetime follow-up care, and leave an impact that never goes away. These kinds of cases can be valued in excess of $1 million. Of course, the actual value of the case cannot be calculated without a full accounting of the costs associated with your injuries.
A second factor in a case is a defendant's ability to pay. Unfortunately, there are many instances where a person suffers catastrophic injuries, but the person who caused those injuries only has a minimum limits non-commercial auto policy. In Texas, those only cover $30,000 of losses for an individual. So if a person with no assets injures you and insurance monies are the only funds available to the victims, regardless of how severe their injuries are, the recoverable monies are most likely all that the victim will ever see. This is why investigations, including thorough financial investigations of all parties responsible for your injuries is crucial to maximizing the value of your case.
An experienced personal injury attorney will weigh these factors and others, such as venue, to maximize the value of your case.
What Types of Personal Injury Cases Does Grossman Law Offices Take?
Most of our attorneys' personal injury cases consist of the following:
- Commercial Vehicle Crashes
- Dram Shop (suing irresponsible alcohol providers who injure people)
- Non-subscriber (employers who don't have workers' compensation) Work Injury
- Premises Liability Cases
- Product Defect Cases
- Firearms Incidents
- General Negligence Claims
If you're not sure what type of case you have, call us at (214) 220-9191 and we'll be happy to assist you.
Can I Handle a Texas Personal Injury Case on My Own?
There are two main factors to consider when deciding whether or not you need help with your personal injury case. First, you need to have a rough idea of your injuries. If they're very minor, then it's unlikely your losses will be significant enough to litigate the case. In this instance, it's difficult to see how an attorney can add much value.
If your injuries are more substantial, then it's far more likely that you will need to litigate the case to obtain fair compensation. In these instances, it's time to consider the second factor, how well do you know the law? Getting the right answer to this question is trickier than it appears. As previously mentioned, personal injury law is a mix of statutory and case law. Sure, anyone with internet access can look up a statute, but even experienced attorneys must make every effort to stay current on case law. It's a daunting task for non-attorneys. Even if you manage that, there's still other areas such as investigation, litigation strategy, and even rules of procedure that one must be familiar with.
If you have a good understanding of each of those areas, as well as the time to dedicate to your case, it's theoretically possible that a non-lawyer could litigate their own case. However, for the majority of the public it's just not realistic to expect them to master these different skillsets in such a short period of time, all while recovering from a major injury. There's a reason lawyers go to school for years, then dedicate their careers to honing their craft.
If you're unsure about whether or not you need an attorney, feel free to call us and we'll be happy to advise you on the best course of action.
How Do I Find the Right Attorney for My Personal Injury Case?
In many respects, this is the most important question injury victims must answer to successfully resolve their claim. Texas has no shortage of attorney advertisements, touting an attorney's experience, results, or even their flashy nickname. We feel that none of these ads really do much to help victims decide which attorney is right for them.
Let's talk about the Grossman Law Offices approach for a second. We believe that an attorney and the client are partners in a case. You bring your claim and we have the experience necessary to assist you in resolving that claim. This means that cases work best when a client and an attorney are on the same page. You should be able to ask your attorney questions about a case and receive a timely answer. Your attorney should be able to tell you their plan for how they will resolve your case in a way that you can understand. Most importantly, you should be able to spend time in a room with your attorney without looking for the exit.
With these elements in place, we believe an attorney-client partnership can flourish, to your benefit. Without them, it leaves you at the mercy of your attorney's whims. No victim should ever be in that position.
So our advice to prospective clients is to talk to a number of attorneys. If there's an attorney who clearly answers your questions, you get along with them, and they have a reasonable plan to resolve your case, then that's who you want. If speaking with the attorney is uncomfortable or they don't answer your questions to your satisfaction, then keep looking.
How Long Do I Have to Pursue a Personal Injury Case in Texas?
Injured victims have two years to file a lawsuit against the party that injured them under Texas law.
Does this mean that you should wait 2 years to pursue your case? Absolutely not. Evidence starts to decay right after the incident that caused your injuries. Witnesses go back to their lives and their memory of the event fades. In an ideal world, your case would begin the moment your injury occurs. Obviously, that's not possible after a serious injury. Your treatment and recovery must come first.
What we often recommend to injury victims is that if you have a close relative in your life that you can trust, have them call us and other firms to start to the process, as soon as possible after the incident.
How Experienced Is Grossman Law Offices at Texas Personal Injury Law?
Grossman Law Offices has helped injured victims for over 30 years. Our attorneys only practice personal injury law. We don't do contracts, criminal defense, or any other area of the law. This may not seem like a big deal, but by not dabbling in other areas of the law, our attorneys can focus their attention on the latest case law and other developments affecting personal injury victims.
How Much Does it Cost to Hire Grossman Law Offices?
Firms like ours work on a contingency fee basis. It's a very simple arrangement. You basically pay us a commission to win your case. If we don't win your case, we get paid nothing. The commission we get will be a percentage of the total recovery. What percentage do we charge? It varies depending on the case, but generally is 1/3 of any amount recovered, if we can settle without suing, or 40%, if we have to file suit.
Where Is Grossman Law Offices Located?
Our main office is in Dallas, TX. If you would like to discuss your case in person, please call us at (214) 220-9191, and we'll be happy to set up an appointment.