How to Prove a Driver Was Distracted

Thursday, December 28, 2017

Distracted driving is incredibly dangerous, and it is essential for every driver to understand the risks of distracted driving in Texas. A distracted driving attorney in Dallas can help a client understand his or her options for legal recourse after a distracted driving accident and recover compensation for the resulting damages. The National Safety Council reported that 3,450 people died in 2016 from distracted driving-related crashes and hundreds of thousands of drivers are engaged in distracting behaviors on American roads at any given moment.

Types of Distracted Driving

The most common form of distracted driving seen on Texas roads is cell phone use. Many states have adopted strict laws forbidding the use of electronic devices and cell phones behind the wheel, and several states have enacted laws specifically for texting and driving. Texting while driving is one of the most dangerous distractions for any driver as it encompasses all three major types of distraction behind the wheel:

  • Visual distraction. This applies to anything that diverts a driver’s gaze away from the road ahead.
  • Manual distraction. This applies to anything that requires the use of the driver’s hands when he or she should be operating the steering wheel and vehicle controls.
  • Cognitive distraction. This applies to anything that preoccupies a driver’s mind when he or she should be focusing on driving.

Texas law forbids the use of cell phones while driving, but how does an injured driver prove that the driver who caused his or her accident was using a phone or engaging in other distracting behaviors at the time of the accident?

Proving Distracted Driving

Several types of evidence may come into play in a distracted driving lawsuit in Texas. A good distracted driving attorney in Dallas may attempt to subpoena the defendant’s phone records to prove he or she used a cell phone at the time of the crash. It is also possible that a witness to the accident observed the at-fault driver on the phone at the time of the accident. When it comes to other types of distractions, such as eating behind the wheel, applying cosmetics, or arguing with a passenger, physical evidence from the crash scene as well as testimony from passengers may be crucial.
Physical evidence from the scene of an accident will play a crucial role in any car accident-related lawsuit. It is important to gather as much evidence as possible from the accident scene before the police and emergency responders clear away potentially valuable evidence. If you or a loved one are in an accident with a distracted driver, it is important to try and take as many photos as possible of the accident site if possible.

Expert Witnesses

In some distracted driving cases, an attorney in Dallas could call on expert witnesses who have relevant backgrounds to testify as to whether a defendant was distracted at the time of an accident. An expert witness would provide the court with a professional interpretation of the evidence involved in the case. However, plaintiffs need to remember that a defendant’s attorney may also call on expert witnesses to counter the claims of a plaintiff’s expert witness.

Police Reports and Traffic Camera Data

The officers that respond to a car accident will develop a report of their initial findings, including statements from the drivers involved and any witnesses who saw the crash occur. The police report may hold evidence of distracted driving, so it is essential for the plaintiff’s attorney to secure a copy of the police report for use in trial.
Many Texas roads also have traffic cameras that may have recorded an at-fault driver using a cell phone or engaging in other distracting behaviors at the time of the accident in question. A plaintiff’s attorney may be able to secure traffic camera footage for use in trial to prove the defendant’s distracted driving caused the accident in question.

Posted by Aaron Herbert at 9:42 am

How Do Damage Caps Work?

Monday, December 11, 2017
When injured persons file a lawsuit to recover damages, they hope to receive fair financial compensation. Sometimes they will hear the amount awarded by the jury and think they will receive that amount. However, many states have passed laws limiting the payout amount, the so-called damage cap. Read on to learn more about damage caps, what types of damages face caps, and other rules that affect the amount awarded in a lawsuit.

What Are Damage Caps?

If an individual is injured because of negligence during medical care, he or she may file a medical malpractice claim. This lawsuit claims a provider did not practice standard operating procedures, failing to diagnose or treat a patient’s injuries. A damage cap exists to limit how much a service provider will have to pay, with each state enacting its own limits. States set these caps to prevent juries from awarding excessive payout amounts. Damage awards of millions of dollars would drive up insurance costs and eventually raise doctors’ fees to deal with the upwardly spiraling costs. Some states block lawyers from mentioning a damage cap, thus freeing the jury to award whatever they deem fair and enacting the cap after the fact. In some cases, judges have capped the payout themselves to reduce a payout to something they considered reasonable.

Caps for Different Damages

Even in situations where the law requires payout caps, the type of damage awarded determines which cap applies. Several categories of damages exist, including economic, non-economic, and punitive.

Economic and Non-Economic Damages Caps

Any concrete, measurable expenses for medical care, rehabilitation, or loss of wages falls into the economic category, with defined limits already in place. Non-economic damages cover any damages not already included in the economic category. This includes pain and suffering, loss of quality of life, and mental anguish. These damages do not follow definable expenses or future expenses based on already known data or charts. A jury must employ a subjective approach to determine non-economic damage payouts. Most states have passed caps on these types of damages. However, states exempt cases that deal with wrongful death or grievous injuries (e.g., loss of limb, organ, etc.) from the damage caps entirely or have a higher cap in place.

Punitive Damages Caps

These damages, sometimes called exemplary damages, serve to punish willful acts of wrongdoing. These damages should deter the wrongdoer and others in a similar position from these acts in the future. Federal guidelines set in place in 2005 place limits to prevent extremely high punitive damages payouts; however, these limits still allow large awards in certain situations. States took this a step further, placing strict limitations on punitive payouts in personal injury claims, some eliminating them altogether. A variety of caps now exist, some with multiplying factors to set caps in place.

Other Rules

States established further tort reforms. For example, a plaintiff once could receive all damages from a single defendant when multiple defendants shared the blame. Now, the obligation to pay applies to all defendants. Another rule added by the states, collateral source, prevents defendants from mentioning any compensation a plaintiff may have already received, like payouts from the plaintiff’s own insurance. This prevented juries from potentially reducing a payout by taking into account payments already received. This rule applies to all medical malpractice lawsuits and in many personal injury claims. Some state courts later declared this rule unconstitutional. Several resources exist to help you find out what damage caps exist in your state, as well as what exemptions or special rules apply for specific situations.
Posted by mockingbird at 6:11 pm

What Is a “Failure to Protect” Claim?

Monday, December 4, 2017
If the police detain someone and place him or her in the car for transport but fail to secure the person’s seatbelt, thus subjecting him or her to injury when a car accident happens on the way to the police station, can that person sue the officers? This point is hotly debated. Here are some of the basics on what constitutes a failure to protect.

Failure to Protect

The most common example is when an adult fails to do something generally considered reasonable to safeguard or rescue a child from abuse or neglect. The adult in question might be a non-abusive parent or guardian who knows the abuser’s identity but does not report them to the police. This state of protection exists for anyone in a legally recognizable position of authority over others. Teachers, first-responders, doctors, police officers, and daycare workers all carry the same obligation to protect.

Civil Liability

Can a person file suit against an officer, claiming failure to protect for injury sustained because of the officer’s inaction? According to the U.S. court system, due process clauses guaranteed in the Fifth and Fourteenth amendments allow a civil lawsuit under two doctrines: special relationship and state-created danger.

Special Relationship

This exists when the state takes control of a person in such a manner that a requirement to protect exists. Examples of this include a prisoner or state-committed mental patient. Any entity taking control of another person must protect that person against reasonable or foreseeable dangers. Corrections officials face this kind of claim most often, but any police officer working in a jail or holding a person in custody could face charges of negligence or abuse. If an officer is holding a person in cuffs when they are both attacked, the officer must protect the individual because he or she cannot defend themselves. If the officer does not properly buckle the seatbelt of a detained person and that person is injured in an accident, the officer failed to protect the person from harm.

State-Created Danger

This situation occurs when a person receives injuries because an employee of the state, a police officer, for example, acted incorrectly or because the officer failed to act in an obviously dangerous situation. Failure to protect a person does not always violate the due process guaranteed in the Constitution; however, it does violate it when the state creates a dangerous situation or unnecessarily exposes a person to risk he or she would not have faced otherwise. Put differently, if an officer intervenes, and that intervention exposes another person to danger they would not have otherwise faced, they may face liability. The same liability exists when a person is put in danger by a failure to act.


In Wood v. Ostrander, Washington state troopers impounded the car of a drunk driver they arrested, forcing the wife to walk home alone in an area noted for high levels of crime. A driver later offered help, only to rape her in a secluded area. The Court of Appeals declared that the police created the situation through their act of detaining the car and through their inaction in not providing the wife safe passage home. In Kennedy v. Ridgefield, the Kennedy family reported their nine-year-old daughter’s molestation by their neighbor’s 13-year-old son. They also said they feared the boy because of his instability. The police promised protection, but they failed to properly inform the Kennedy’s that they had interviewed the boy. The accused boy broke into the Kennedy’s house that night and shot both parents, killing the father. The Court of Appeals stated that the failure of the police to alert the Kennedys, and provide the promised protection, placed the victims in a dangerous situation that would not have existed otherwise.
Posted by mockingbird at 6:07 pm