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Category Archive: Law Blog

Category Archive: Law Blog

  1. Who Is Liable for Texas Apartment Fires?

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    Home and apartment fires claim lives and destroy property. Victims face unexpected medical bills, replacing their possessions, and finding short- and long-term housing, all in a flash. The emotional trauma overwhelms. Then, the question remains, where does the responsibility lie for all of these sudden expenses?

    In Texas, the cause of the fire, the terms outlined in the tenant’s lease and any insurance coverage, all determine the answer in apartment fires.

    Landlord Responsibility in Texas Apartment Fire Damages

    Tenants often feel that owners of apartment buildings should bear the responsibility for fire losses. Certainly, the owners of the buildings are in a better position financially than most tenants. Often tenants may simply assume the landlord has some type of insurance to cover the damage. Usually that is not the case. Insurance carried by landlords typically covers the premises and building damage, any of the landlord’s personal or business belongings, and third-party liability associated with landlord negligence. Lack of coverage for tenant belongings leaves many victims of apartment fires unprotected and unprepared.

    Generally, the landlord accepts liability for tenant losses only for landlord negligence – for example, landlords who fail to maintain an apartment properly where faulty wiring starts the fire. Negligent landlords may assume liability even when the negligence does not directly cause the fire.

    • Failure to meet applicable construction fire code standards in the unit or the building leaves the landlord liable.
    • Failure to supply or maintain in-unit smoke detectors that delay fire response times creates additional landlord liability.
    • Storing hazardous goods that accelerate the fire could increase landlord responsibility.
    • Blocking emergency exits, halls or passage ways that prevent victims from escaping make landlords more culpable.

    Tenant stress suffered after an apartment fire is significant. Landlords that receive several requests to repair faulty smoke detectors and fail to respond are specifically negligent. This intentional infliction of distress contributes to legal liability.

    Landlord liability for property losses, injuries, pain and suffering, and the cost of relocation form the foundation of many apartment fire lawsuits. A landlord found guilty of negligence means fines, reparations, or even jail time.

    Landlord Negligence That Does Not Increase Harm

    Landlord negligence in non-contributory areas, such as a hole in the wall, roof, or window, broken water heater, mold, or rodents, does not increase liability in the case of a fire.

    Sometimes, third parties assume apartment fire liability. For example, fires caused by defective appliances, lamps, or other products may hold the manufacturer or supplier legally responsible.

    Victims do find recovering damages impossible, in some cases. The negligence of another tenant is a good example of this. Most tenants cannot personally pay the damages, unless they carry renter’s insurance to cover their losses, and those of other tenants.

    Renter’s Insurance Covers Losses

    Renter’s insurance covers some losses for tenants, both those who started the fire, and those who did not. Policies vary. An explanation of the coverage from the insurance agent representing the policy assures peace of mind.

    Determining Liability

    Determining the liability for apartment fires requires determining the underlying cause of that fire. An investigation by experts is complex and often time consuming. Expert opinions sometimes differ. Each insurer attempts to avoid liability in the process.

    Tenants should always keep a record of all communications with the landlord, in writing. Documenting each conversation helps in any dispute, especially in court.

    Ultimately, tenants in Texas find that carrying renter’s insurance for themselves gives them the greatest likelihood of making a successful claim. You have legal options in the event of an apartment fire, even without renter’s insurance. Determining the cause and legal liability is the first step.

  2. Are Employers Required to Carry Workers’ Compensation Coverage in Texas?

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    Texas is different from other states in many ways. One of those ways is that Texas is the only state that does not require employers to carry Workers’ Compensation insurance.

    Is There Any Workers’ Compensation Insurance in Texas?

    Texas encourages employers to carry Workers’ Compensation insurance. Employers have the right to choose to protect their employees using Workers’ Compensation. If they choose not to, the employer loses several common law defenses in employee personal injury claims. When an employer offers Workers’ Compensation to their employees, they are immune from employee lawsuits, except for gross negligence.

    The employer only needs to offer the coverage, since the employee can choose to opt out. The opting out choice happens at the initial offering, not after an injury. At the time of hiring, each new employee receives notification of non-coverage or coverage. The same notice posts on the bulletin board with all other announcements required in the workplace. Each new hire has five days to choose to waive their right to workers’ compensation insurance. If they waive this right, they retain the common law right to sue their employer for work related injuries. The notice informs the employee that giving up workers’ compensation means they also give up any income or medical benefits under workers’ compensation law.

    Non-subscriber employers that go without coverage remain open for personal injury lawsuits from injured employees. Damages and fees seem almost unlimited. Plus, some typical personal injury defenses like assumption of risk, last clear chance, contributory negligence, or co-worker negligence, do not apply.

    How Common Is Workers’ Compensation in Texas?

    Many Texas employers choose not to provide protection for their employees through Workers’ Compensation. Premiums are high in hazardous industries, because of the many previous claims. Companies at high risk for claims frequently chose alternate, inferior injury employee benefit plans. Sometimes these companies offer their employees no protection at all.

    When employers discontinue Workers’ Compensation insurance coverage, they must inform the Workers’ Compensation Division of the Texas Department of Insurance and their employees, as soon as possible.

    Very large corporations that provide Workers’ Compensation insurance by law in every other state do not do so in Texas.

    • Home Depot
    • Kroger
    • Lowes
    • Macy’s
    • Sam’s Club
    • Target
    • Walmart
    • What-a-Burger

    These companies find that their choice in Texas to forgo Workers’ Compensation insurance premiums increases profitability.

    Do Injured Employees Have Rights When Employers Do Not Offer Workers’ Compensation Insurance?

    This can be tricky and confusing from a legal standpoint. The company’s employee handbook outlines the alternative options for injured employees. The agreement may require waiving employee rights to bring a claim or submitting disputes to binding arbitration instead of filing a lawsuit. Legal advice is helpful before taking any other action.

    If the employee handbook outlines no plan at all, the injured party has the right to file a legal claim against the employer. When injuries result from the negligence of an employee, another company or a visitor, a third-party negligence claim may result.

    What Does Workers’ Compensation Cover?

    Workers’ Compensation covers an injury or illness, without considering fault, when sustained during the normal course of employment. This includes any injuries sustained during travel that relates to the employee’s usual work.

    Injuries not covered include the results of the employee’s willful criminal act, horseplay, or self-injury, intoxication from alcohol or drugs, voluntary participation in off-duty recreational activities, third party criminal acts directed at the employee for personal reasons unrelated to work, and acts of God.

    Texas Workers’ Compensation laws make work injuries specifically complex. It is certainly wise to speak with an attorney to determine the options associated with any work-related injury.

  3. What Are Some Common Types of Anesthesiology-Related Errors?

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    During surgery, doctors typically use anesthesia to prevent the patient experiencing pain during the procedure. Anesthesia makes many procedures possible, but it is not perfect. Anesthesiologists must carefully monitor each patient to avoid complications. Everyone is different, and individual reactions to anesthesia vary, too. It is the doctor’s responsibility to foresee these variations and make the appropriate adjustments in each patient’s care.

    Actually, anesthesia mistakes are a leading cause of medical malpractice claims. Medical malpractice cases are different from other personal injury cases because the anesthesiologists have a very high duty of care. Doctors, lawyers and psychiatrists all share this similar high level of duty toward their patients and clients.

    Common Anesthesia Mistakes and Complications

    Anesthesia errors lead to complications. Some patients feel pain as they actually remain fully or partially conscious during their surgery. Others suffer brain damage from a lack of oxygen because they were under anesthesia for too long or too deeply. These errors lead to significant patient discomfort and can lead to permanent damage.

    • Patient History
    • Dosage Errors
    • Delay in Administration
    • Intubation Refusal
    • Failure to Monitor

    Patient History

    As with other medical procedures, gaining the informed consent of the patient is a critical step. A complete patient medical history is crucial. Patients have allergies to anesthetics. Many have pre-existing medical conditions. Medications commonly prescribed affect anesthesia, too. Patient histories give practitioners the information they need to make critical decisions. Unfortunately, sometimes anesthesiologists do not use the information to reinforce safety issues.

    Dosage Errors

    Anesthesiologists adjust the dose of the anesthetic based on patient medical history and other situational variables. Obvious variables are the nature of the surgery and the time required, so the patient does not wake up before the surgery ends. Emergency surgical procedures make errors more common. Emergency C-sections or appendectomies limit the anesthesiologist’s time and create distractions. Dosage errors allow dangerously prolonged sedation times of patients, which can lead to lifelong disabilities.

    Delay in Administration – Not Giving the Anesthesia the Time to Take Full Effect

    In emergency surgery, seconds can count for life or death. Sometimes, a doctor begins a surgery before the patient feels completely anesthetized. Failing to give the anesthesia the chance to take effect means the patient feels excruciating and entirely unnecessary pain. A Delay in Administration case has many anesthesiologists over correcting. They administer stronger doses to get the anesthesia to work faster. Sometimes, the patient does not wake up because of the stronger or higher dose of the anesthesia.

    Intubation Refusal

    Intubation inserts a tube in the patient’s windpipe. The patient breathes comfortably through the tube. The anesthesiologist can quickly add medicine, or anesthetic antidote, as required. Occasionally anesthesiologists consider this procedure unnecessarily cautious and refuse to intubate. That is just not true. One tiny mistake is all it takes.

    Failure to Monitor 

    Occasionally, the anesthesiologist does not even attend the surgery. They start in the operating room at the beginning, stay for a few minutes, then leave and do not return. They rely on a notification from the surgeon if something goes wrong.

    When they leave, the alarms and other equipment shut off. The idea is that these alarms might distract the surgeon and the rest of the surgical team.

    Failure to monitor post-surgery is usually the biggest mistake. In the post anesthesia bed, the patient lacks care because some anesthesiologists stop working at that point. Allergic reactions, adverse side effects, or complications can wait to manifest. Patients could relax to the point they stop breathing entirely.

    Anesthesia errors are serious. Anesthesiologists need a complete history from each patient, yet errors still occur. Medical malpractice laws provide options for patients who suffer harm from anesthesia.

  4. Can I Sue if an Intoxicated Person Hurts Me at a Bar?

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    Most bars and restaurants provide a peaceful opportunity for a nice evening out of the house. Others are a hornet’s nest of chaos and trouble. Direct attacks, or an accidental injury from flying bottles or fists do happen. But the big question is; who is liable?

    Are victims able to sue a nightclub or bar when injuries occur there? Premises liability laws cover situations like these.

    First, It Must be Someone Else at Fault

    To start, someone else had to start the fight. An injured person cannot sue for their own injuries if they started the altercation. Also, the injuries must not arise from an agreed upon fight or a mutual disturbance. The person who began the attack assumes liability to the injured party. Intentional tort principles cover these damages.

    Unfortunately, most people fighting in bars lack the financial resources to make it worthwhile to sue them. So, injured parties often must look to suing the nightclub or bar itself.

    What Is Dram Shop Law?

    Dram Shop law refers to injury lawsuits caused by people who purchased alcoholic drinks at bars and restaurants. When someone drinks and then attacks, a Dram Shop case against the bar or nightclub may ensue.

    When someone suffers damages by the actions of an intoxicated person there is legal recourse against the establishment serving the alcohol. Presumably, serving too much alcohol led to the attacker’s actions. Alcohol sparks dangerous situations, and sometimes punches fly for no other reason.

    Weapon use is also an issue. Patrons carry weapons in, or a variety of potential weapons are already in the bar as tempers flare. Pool cues and bar stools are handy. Bottles or beer mugs as weapons for glassing another person are particularly dangerous. The unpredictable nature of drunks makes the establishment responsible.

    General Premises Liability Law

    Claims against bars or nightclubs for damages from a fight are standard personal injury cases, which is a type of negligence case. The nightclub must prove negligent, and that negligence caused the injuries. Fight cases generally involve intoxicated assailants which calls into question security and alcohol service policies. Every establishment has a duty to reasonably provide security for customers, and not to continue to serve intoxicated customers.

    Under Dram Shop Laws, bars and nightclubs have a duty to closely monitor patrons. They provide assurance that they do not continue to serve alcohol to their intoxicated customers.

    State and Municipal Laws

    Violations of a state or local law leads to potential liability against the establishment. Serving underage customers, staying open later than regulations allow, or happy hour drink specials where prohibited, help an injured patron in their lawsuit.

    Immediate Actions

    In personal injury cases, actions taken immediately afterwards can help the success of the case. The management of the bar should receive a report of the fight, and the injury, immediately. A law suit can still proceed, even if the injury report waits. Juries and insurance companies question accident claims not reported quickly. Witness contact information is part of an injury report, too.

    Victims of Drunken Violence 

    The perpetrator of drunken violence, and also the enabling establishment, hold the responsibility for damage. Bars pouring drinks for drunk patrons violate the law. Dram Shop Law considers both the attacker and the bar responsible for the violence and the damages.

    If the attorney proves that negligent alcohol service primarily caused the injuries, the victim can pursue damages from the negligent bar. In Dram Shop cases the conclusion is that the intoxicated person would not take the actions that caused the injuries if alcohol did not cloud his thinking.

    So, can someone hurt in a bar fight sue the bar where it happened? Yes, in some situations, as long as they didn’t start the fight.

  5. What Is the Thin Skull Rule?

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    The Thin Skull Rule refers to the same law as the Eggshell Skull Rule, the Eggshell Plaintiff Rule, the Special Sensitivity Rule or the Old Soldier’s Rule. The rule states that a defendant’s liability extends to uncommon and even unforeseeable results for the victim. Basically, the victim’s pre-existing vulnerability does not reduce the defendant’s responsibility.

    Thin Skull Rule and Personal Injury Law

    Thin Skull Rule cases all begin with the same elements as any other personal injury case.

    • The defendant owes the plaintiff a duty.
    • The defendant did not fulfill the duty.
    • Harm came to the plaintiff because of that lack of fulfillment of duty.
    • The harm results in a loss, such as medical bills, lost time at work (wages), and pain and suffering.

    Personal injury also includes the concept that damages are reasonably foreseeable. That way, people are responsible for the consequences of their actions. Laws also cover carelessness and inattention, so long as the actions of a defendant were avoidable.

    For example, if someone drives along and suddenly experiences medical symptoms that result in the driver causing a crash, the scenario will receive different treatment than one in which the driver were simply driving distracted, such as with texting while driving. The driver suffering an unexpected medical symptom would not have the same level of responsibility as someone who was being negligent, even though both drivers did not intentionally cause a crash. The case would be different, however, if the driver was aware of a medical condition that could lead to such a symptom, and negligently chose to drive anyway.

    Foreseeability Defense Turns Into a Thin Skull Defense

    The Thin Skull defense basically represents an exaggeration of the foreseeability defense. The foreseeability defense claims that the defendant could not reasonably foresee that the action would result in harm to the plaintiff. In a Thin Skull defense, the defendant’s lawyer argues that the plaintiff suffers from pre-existing conditions or a status that makes their injuries worse than expected. Therefore, the defendant simply did not reasonably know about the defendant’s condition. The argument follows that the resulting damages must not be the defendant’s responsibility.

    A civil trial fortunately does not permit this argument. The law says that the defendants must take their plaintiffs as they find them. The defendants remain responsible for any and all injuries resulting from their actions. A plaintiff’s pre-existing condition is, therefore, irrelevant.

    How to Recognize a Thin Skull Case

    The most common example of a Thin Skull case in legal texts explains it in a hypothetical scenario. Someone negligently bumps a man and knocks him over onto the ground. The man bumps his head. This appears as a minor incident from which most people would get up and continue along, with perhaps little more than a bump on their head. However, because this particular man lives with an eggshell skull, so this fall causes a skull fracture and a serious brain injury.

    The Thin Skull Rule states that the defendant does not escape liability for damages on account of the man’s unusually thin skull.

    Calculating Damages in Thin Skull Cases

    Calculating damages in Thin Skull cases does require an adjustment. The possibility that a plaintiffs pre-existing conditions would result in some harm even without the tort needs assessed in each case. Liability claims of damages drop when the risk of damages remains remote and not in proportion to the defendant’s responsibility.

    The Protection of Everyone

    The courts do not speculate about how healthy people and more fragile individuals respond to carelessness or negligence. Everyone receives the full protection of the law, without the consideration of pre-existing states or conditions.

    If the Thin Skull Rule did not offer protection to individuals, the old and sick would receive less protection than the strong and healthy in personal injury cases. A focus on actual harm done and the avoidance of speculation supports the equal protection of everyone.