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Bystander Claims – Personal Injury Lawyers
Am I Allowed to File a Bystander Claim in a Texas Personal Injury Case?
Often when someone is injured, their loved ones suffer as well. It is incredibly painful and emotionally traumatic to watch a family member being hurt or killed. As a result, there are situations where the court will allow you to recover for damages you incurred by simply watching your loved one be injured or killed. In the event that you have suffered similar heartache, you may be able to receive damages under what is known as a bystander claim. Of course, this is a very narrow exception and you will need to speak with our attorneys to effectively determine if this exception applies to your case.
How do I Qualify for a Bystander Claim?
A bystander claim is a claim for damages that a person may bring if their loved one has been killed or traumatically injured. It’s not available in every situation, however. In order to bring a bystander claim, you must first meet three foundational requirements.
Family Members
First, you must have been a close family member of the victim. This means that you could either be the spouse, father, mother, sibling, child, or some other close relation. Even if you are not biologically related to the victim, you may qualify for a bystander claim if you are an adoptive parent of the victim or if you are the legal guardian. If we cannot prove that you are somehow related to the victim, then you do not have standing for a bystander claim.
For example, let’s say you were walking with your friend on a busy street and your friend was hit by a City Bus. You would not have a bystander claim for damages because you are not closely related to the victim. The same would be true if the person hit by the City Bus was your boyfriend or girlfriend. Since you are not actually related to your boyfriend or girlfriend you would not have a valid claim.
Close Proximity of the Witness
Second, you must have been near your loved one at the time of the accident. The logic behind this is that you must have been close enough to the accident to have experienced trauma. If you were actually a mile away, you may have been able to see fire trucks and that there was an accident, but you would not have been close enough to experience the type of emotional trauma deemed sufficient by the court.
There are exceptions to actually seeing the incident, however. There was a case in Texas where a man sued for bystander claims after finding his son after he fell down an elevator shaft at a hospital. The courts found that even though the father did not actually see his son fall, he still qualified for bystander damages because he personally found his son after the accident which resulted in emotional trauma.
Direct Correlation Between the Accident and the Emotional Turmoil
Finally, your emotional damages must have been the direct result of witnessing the traumatic accident. The accident you observed must have been so shocking that you suffered serious emotional trauma following the incident. Injuries may include depression, anxiety, insomnia, or other emotional based symptoms.
The key issue though is that they must have been caused directly by witnessing an accident. For example, if you are suing claiming that you can no longer work because you have developed crippling depression and insomnia, you will not have a successful bystander claim if you were previously treated for these ailments prior to your loved one’s injury.
Anytime you witness a loved one hurt or killed you will likely experience life altering trauma. Our attorneys can help you work through this traumatic time in your life and assist with your bystander lawsuit. We cannot change what happened in the past, but hopefully with our help you will be able to live a happy and healthy future. To schedule a meeting with one of our experienced personal injury attorneys, call Our Law Office.
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Drunk Driver Accident Attorney – Personal Injury Lawyers
Our Attorneys Can Help You and Your Family Following a Serious Injury Accident With a Drunk Driver
Were you aware that you can sue both a drunk driver and the drinking establishment that over-served him if you’ve been injured in a drunk driving accident? When you bring a lawsuit against a drinking establishment, this is called a dram shop case, and this right stems from a section of the Texas Alcoholic Beverage Code.
What is a Dram Shop Case?
A dram shop case is a liquor liability case that allows you to sue bars, restaurants, clubs, and other establishments that serve alcohol under very specific conditions whereby they break rules regarding the service of alcohol set forth by the TABC.
What is the Concept Behind Dram Shop Laws?
Many years ago, the Texas state legislature recognized that drunken driving accidents and other intoxicated injuries are often the result of bars breaking the rules of safe alcohol service set forth by the TABC. Prior to the codification of the Dram Shop Act in 1987, the victims of drunken driving accidents could theoretically sue bars under a general negligence-based theory of liability, but our lawmakers decided this issue needed to be codified into law. The creation of the Dram Shop Act limited the injured party’s ability to sue bars but wasn’t necessarily a bad thing for plaintiffs. While the Dram Shop Act provided bars protection from all but certain types of lawsuits, it also specifically instructed plaintiffs when and how they may go about filing lawsuits.
From state to state, dram shop laws will differ, but in Texas, it’s codified. Much of the Dram Shop Act just took what had already been the practice in the common law and set it in stone, striking a balance between the rights of bars and plaintiffs and limiting the ability of plaintiffs to seek compensation to only those cases when the drinking establishment has broken specific rules.
Who Can Sue a Bar under a Dram Shop Cause of Action?
Anyone who is physically injured by virtue of a bar violating safe alcohol service rules as laid out by the TABC has the right to pursue compensation from the drinking establishment. However, the path to securing remedies for the harm done won’t be the same for all injured parties. Different classifications of plaintiffs will need to take different approaches to reach the same end of obtaining compensation, and they will face different challenges along the way.
What are the Different Types of Plaintiffs who Can File Suit in a Dram Shop Case?
Injured parties in a typical dram shop case fall into one of two categories: third party plaintiffs, or first-party plaintiffs. A third-party plaintiff is someone other than the drunken driver who was injured in a drunk driving accident – a passenger in the intoxicated motorist’s car, the driver of another vehicle, the passenger(s) of another vehicle, pedestrians, motorcyclists, or bicyclists. The dram shop act is not limited to motor vehicle accidents involving intoxicated motorists, but any type of alcohol-induced harm that an intoxicated patron caused. For example, you could pursue a dram shop lawsuit after being attacked and beaten by an intoxicated person who had been over-served in a bar.
On the other hand, a first-party dram shop claim involves the drunken driver, either when the drunken driver sues the bar who over-served him following an injury sustained in a drunk driving accident, or the driver’s family files a wrongful death lawsuit after their loved one drinks past the point of intoxication at a bar and then dies in a drunk driving accident. Since Texas law considers negligent drinking establishments to be a cause of drunken driving accidents, then they can be held partially accountable even for harm done to the drunken driver.
What Makes a Bar Liable?
Although our dram shop laws allow you to sue a bar for contributing to the cause of a drunk driving wreck, you can only succeed with such a suit if the bar has violated very specific rules. So long as alcohol is legal to sell and consume, there must be some balance between a bar’s right to free enterprise and the public’s need to be protected from the dangers of drunken drivers. According to Texas dram shop laws, a bar is not actually liable for serving alcohol until a person becomes noticeably intoxicated, and there is no immediate assumption that a bar is liable just because an intoxicated patron left a bar and caused an accident. Rather, Texas considers the act of selling alcohol negligent only when a bar serves additional alcohol to a person who is already dangerously intoxicated.
What Constitutes a Dangerous Level of Intoxication?
Technically speaking, according to TABC guidelines in order to have a viable dram shop lawsuit, you must be able to show that the recipient of the alcohol was displaying obvious signs of intoxication such that he presented a clear and present danger to himself and others and the bar continued serving him. Now, these obvious signs of intoxication can include changes in the patrons’ physical characteristics, such as bloodshot eyes, an inability to balance while standing or walking, or a loss of control of bodily functions, or they can also include altered behavior. Some people are prone to violence when drunk, while others become more sexually uninhibited. While some people get loud and extremely extroverted when intoxicated, others become uncommonly quiet and withdrawn. Since some drinkers are more able to conceal the outward signs of intoxication than others, the sheer number of drinks ordered by a single patron can also be an indicator of intoxication.
How Can a Bar Recognize Obvious Intoxication?
First, a drinking establishment needs to make sure all of its employees have attended and completed TABC training. Not only is this required to avoid liability for harm caused by drunken patrons, but this training teaches servers how to detect obvious signs of intoxication in their customers. The most important thing is diligence – bartenders and wait-staff must keep a constant watchful eye on their patrons. If you’ve ever spent any time in bars and clubs, then you know that it’s usually not that hard to spot the intoxicated patrons. Usually, you only need to look for them. Although, as we mentioned, some drinkers can hide the signs of intoxication, so servers need a way of detecting when these customers are intoxicated. Just as with observing patrons, this isn’t that difficult either. To order food and drinks, most bars and restaurants now use some sort of computerized system. Thus, every time a patron orders a drink on his tab, a bartender just needs to be observant of how many drinks have been ordered by this person. Once the amount of beverages purchased has surpassed the amount it would take to make the customer intoxicated, then service should be cut off in compliance with TABC mandates on safe service of alcohol.
The fact of the matter is that until drunken driving accidents happen most drinking establishments are more concerned with making profits than protecting themselves against liability. Therefore, if you’ve been injured in a drunk driving accident, the chances are strong that the drinking establishment that served the driver wasn’t taking the necessary precautions to avoid liability.
What is a Plaintiff Required to Prove?
To win a dram shop case, it’s not enough just to know that the bar served an obviously intoxicated patron, but you’re going to have to be able to prove it, along with establishing that this act was a proximate cause of the accident and your injuries.
Eye-witness accounts from bar patrons and surveillance video from the bars can demonstrate that the drunken driver was obviously intoxicated before leaving the bar. Sometimes, our attorneys have even been able to use the driver’s phone records and social network page to track down drinking buddies who can help demonstrate the recipient’s level of noticeable intoxication while he was still drinking in the bar. Moreover, other bar patrons can testify as to whether not the bar habitually serves patrons past the point of intoxication. We’ve even sent private investigators armed with surveillance cameras into bars we are investigating to attempt ordering alcohol when they’ve already had enough to become intoxicated. Interviews with employees can reveal whether or not they’ve been properly trained according to TABC regulations. Sales records and/or debit and credit card receipts can show just how many alcoholic beverages the patron bought before leaving the bar. By questioning the arresting or investigating officer, your attorney can also demonstrate the driver’s intoxication and the role it played in the accident.
What Amount Can You Sue the Bar For?
If you can prove the bar violated the TABC rules for the safe service of alcohol, and this violation caused your injuries, then you can sue the bar for damages. In a personal injury lawsuit, these damages may include compensation for:
Medical bills
Any property that may have been damaged in the wreck
Pain and suffering felt during the accident
Mental anguish experienced during rehabilitation
Lost wages during recovery time
Detrimental effects of lifelong disabilities that result from your injuries
If, conversely, your loved one is killed in a drunk driving accident, then you may be able to pursue both wrongful death damages and survival damages. Wrongful death damages can be sought by the surviving spouse, children, and parents and are intended to compensate these people for the harm done to them by virtue of the death of their loved one. These wrongful death damages may include compensation for:
Loss of monetary support
Loss of parental services for children losing parents
Loss of child’s services for a parent losing a child
Loss of spousal services
Psychological counseling for the surviving family members
Exemplary damages
Loss of companionship and society.
On the contrary, survival damages are intended to provide compensation for the losses of the decedent as a result of the accident and may only be pursued by the personal representative of the estate in the name of the closest living relative. Survival damages may include:
Funeral expenses
Compensation for the mental agony experienced due to the realization of imminent death
Medical bills charged prior to death
Compensation for the physical pain of the accident
Exemplary damages
Of note, when we begin an investigation, we send a spoliation of evidence letter to the defendant informing the bar that it’s being sued and instructing it not to destroy or tamper with evidence in any way. When a drinking establishment ignores a spoliation of evidence letter and tampers with any evidence covered by the letter, then the court will likely enforce Death Penalty Sanctions as punishment, increasing the amount of damages.
Also, damages in a drunk driving accident are split between the drunken driver and the negligent drinking establishment, provided the liability of both can be proven in court. The attorneys on all sides will present arguments as to the respective degree of liability for each party, and the damages owed by the liable parties will reflect this percentage of liability as decided by the court.
You Need Help with a Dram Shop Case
If you’ve been injured by a drunken driver whom you suspect may have been over-served by a bar or restaurant, then you will likely need the assistance of an experienced dram shop lawyer to successfully sue for the damages you deserve. You stand very little chance of finding the evidence you need to prove the drinking establishment’s negligence without the assistance of a professional investigator who has handled investigations like this on numerous occasions and knows what to look for. However, you also need an attorney who understands the wide scope of financial harm that can result from serious injuries and the importance of consulting with a number of different medical experts to accurately estimate the harm caused by your accident.
Finally, you need an experienced lawyer who knows what to expect from dram shop defense attorneys and how to overcome the challenges they will present, as well as, the importance of proving up the value of damages to allow you to hold all liable parties accountable and get maximum compensation.
Our lawyers have spent more than 22 years litigating dram shop cases, so we’ve worked hard to obtain the experience you need to help you get the damages warranted by the injuries you’ve sustained or the loved one you’ve lost. If you’d like to learn more about how we can help with your dram shop case, then call us today for a free consultation.
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Nonsubscriber Work Injury Attorney – Personal Injury Lawyers
Injury and Death Claims Against Workers’ Compensation Nonsubscribing Employers
About 45% of Texas companies do not participate in the state-run workers’ compensation program. This classification of an employer is called a nonsubscriber. If you have been injured on the job and your employer is a nonsubscriber you will not get automatic compensation as you would if your employer subscribed to workers’ comp. In fact, your rights are quite different.
This article will explain your rights, the compensation you can receive, and how to successfully pursue that compensation. The nonsubscriber workers’ injury attorneys of our firm have been winning these cases for over 20 years. Please feel free to contact us to further discuss your work-related accident.
Where Do Nonsubscriber Laws Come From?
Technically, there is no such thing as nonsubscribers’ work injury law. The way it works is that our legislator has passed very specific laws regarding the rights of an injured worker whose employer does subscribe to workers’ compensation and these laws are codified in the Texas labor code. When the employer opts out of this system there is no hard and fast set of rules that says an employer can do X, Y, and Z; instead, your rights are derived from the common law. As such, your rights mirror the natural rights that a plaintiff would typically have in any other personal injury case.
What Is So Different About Nonsubscriber Cases?
The primary difference between nonsubscriber and workers’ comp cases is that in a nonsubscriber case you typically have to litigate against the employer in order to force them to accept responsibility and force them to pay you. Whereas in a workers’ compensation case there is the presumption that the employer is inherently liable and the benefits you get are automatic.
Is My Employer Inherently Liable?
No. Since a nonsubscriber work injury case is based on common law principles, you are required to prove that your employer was negligent in some fashion. If you cannot prove that the employer was negligent then you simply do not have a valid claim. In other words, just because you were injured on the job does not mean your employer was responsible in a nonsubscriber case. You must prove they caused your injury directly or indirectly.
How Much is My Case Worth?
Again, in a nonsubscriber case, you can sue your employer for all your damages, rather than receive just the paltry benefits that someone who has a workers’ compensation case is eligible to receive. To determine the value of your case you must simply add up all of your individual damages and weigh that against known jury verdicts. Damages that are compensable in a nonsubscriber case are:
Loss of earning capacity
Impairment
Both future and past medical expenses
Compensation for suffering
Juries are not particularly biased against plaintiffs. So in most nonsubscriber work injury cases, we can typically recover the entirety of your damages because a jury is likely to award the entirety of your damages. (On the contrary, in certain parts of Texas, even if you win your case, a jury will pay you less money than what your case is worth.)
How Does a Nonsubscriber Case Work?
Step 1: Talk to an attorney. The very first thing you need to do is speak with one of our attorneys so that we may discuss your individual accident.
Step 2: We will do research on the matter which might include an onsite inspection, accident recreation, and product testing. The initial methods that we use to better understand your accident and why it occurred largely depend on the nature of your injury and what we primarily believe to have caused your accident.
Step 3: We will present to you your options and discuss what we think the case is worth, whether we think it is worth you pursuing, and what we think you may stand to gain when it is all said and done.
Step 4: We will then attempt to settle the case out of court and file suit if the defendant does not offer an adequate payment. All of our attorneys are skilled negotiators; however, we are not willing to compromise on your well-being. We will do our best to reach an adequate payout, but if we feel you are not being offered a fair sum, we will have no problem holding the defendant accountable in court.
Step 5: Now the case is in litigation so we will go through a process where we use subpoenas to obtain documents and information from the company and we will use this to build the case against them. This is where we will find the crucial evidence which can undeniably prove the defendant is responsible for your damages.
Step 6: Once we have gathered additional information, both parties will again meet and discuss the case face to face. A new round of negotiations will begin and if these negotiations fail we will go to trial.
Voluntary Benefits Paid by the Employer
As we mentioned above, your employer does not have to compensate you when they are not a subscriber to workers’ compensation; you must pursue them to get the compensation you need. But, some of you reading this may think “But my employer is paying me voluntarily. Do I still need to file suit against them?” The answer is some employers will purchase insurance that provides proactive payment of injury benefits that functions very similar to a workers’ comp plan; however, this is all done on a voluntary basis and they can cut your benefits off at any time.
As a general rule of thumb, if your injuries are very minor, it is not worth it to sue. If your injuries are minor and your employer is giving you voluntary benefits, you should probably take the money and run. On the contrary, if you have severe injuries they may simply be paying you enough to string you along and ultimately cheat you out of the money you deserve. They are only paying you for medical costs and potentially a small amount of your lost wages; however, often you will go months without working and you will require ongoing treatment and surgeries to fully recover.
Unfortunately, through voluntary benefits, many employers will only pay for your initial surgery cost and maybe a month of lost wages. This means you have damages for lost wages, medical treatment, and other damages like suffering all of which voluntary benefits will not cover. Your employer is not paying you what they owe you, but they are paying you enough that no attorney will want to sue because you will only be able to recover a limited amount of damages, but you still have the same cost to pursue the claim. Generally, employers who offer voluntary benefits have ulterior motives and they may intentionally mask their nonsubscriber status as workers’ compensation. This also typically prevents you from getting an attorney and resulting in the statute of limitations passing before you even realize you have a claim for further damages.
What if the Accident is Partially My Fault?
The primary benefit to employees who have a nonsubscriber employer is that they only have to show that the employer is partially liable. So unlike every other personal injury case where you have to show the defendant is more liable than you, the nonsubscriber only has to be at least 1% responsible for your injury. As a consequence, the only thing they can do is try to put the blame back on you.
If you’ve been injured in a workers’ comp nonsubscriber case call our office.
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