When one person’s actions cause another person an injury, the victim (plaintiff) will have the right to seek compensation from the at-fault party (defendant). The victim will do so by filing an insurance claim or personal injury lawsuit. In Texas, a defendant can be held liable for both intentional acts of wrongdoing and unintentional negligence against a plaintiff. Learn the difference between these two legal concepts to better understand your claim.

What Is an Intentional Tort?

An intentional tort describes a willful and knowing act of wrongdoing, such as an action that breaks the law in Texas. If a defendant is guilty of an intentional tort, it means he or she knew of the criminal nature, wrongfulness or risks associated with an act or omission, yet preceded with it anyway. Someone who commits an intentional tort knows the action will foreseeably cause injury, but breaches the duty of care anyway.
An intentional tort can be a premeditated crime, or the idea can occur to the defendant on the spot. Either way, if the defendant performs a willful and deliberate act of wrongdoing that injures a victim, he or she will be civilly liable for losses. The defendant will also likely face criminal charges in Texas for committing a crime against the victim, such as assault, battery, robbery, abuse or homicide.

What Is Negligence?

Negligence does not involve intent. Negligence is a person’s unintentional or careless failure to perform his or her duties of care. If a defendant is guilty of negligence, he or she made a mistake on accident that caused the victim’s injuries. In Texas, a negligent party can be held liable for a victim’s damages if four main elements are more likely to be true than not true.

1. The defendant owed the victim a duty of care.
2. The defendant failed to fulfill the duty or standard of care.
3. The defendant’s breach of duty caused the accident.
4. The victim suffered compensable losses as a result.

With evidence of these four elements, the defendant will be legally responsible for the plaintiff’s injuries and related losses, such as medical bills, lost wages and property damage. Even if the defendant did not intend to hurt the victim or willfully breach the standard of care, the defendant will be liable for his or her careless acts in Texas.

How Does This Affect Your Personal Injury Claim?

Whether the defendant in your personal injury case was guilty of an intentional tort or negligence, you have the same right to bring a claim against that party. Differentiating between the two will not alter your injury claim – the burden of proof will remain the same. You or your attorney will still need to establish that the defendant owed you a duty of care, willfully or accidentally breached this duty, and caused your injury. However, if the defendant committed an intentional tort, he or she could also receive a criminal conviction.
Note that being convicted of a crime does not immediately make the defendant civilly liable for your losses. You will still need to establish fault through clear and convincing evidence. However, you can use a defendant’s criminal conviction as evidence during your civil case. A criminal conviction can work in your favor to convince a judge and jury of the authenticity of your claim.
Even if a criminal case against the defendant does not result in a conviction, you could still have grounds for a civil claim. It is possible to win a civil claim even without a criminal conviction, as the burden of proof for a criminal vs. civil case differs. To convict the defendant of a crime, the prosecutor will need enough evidence to prove his or her guilt beyond a reasonable doubt. Your attorney, however, will only have to prove that the defendant’s tort is more than likely what caused your injury.
Speak to a personal injury attorney in Dallas for more information about the burden of proof in your claim.

What Does Assumption of Risk Mean in Law?

How Can Someone Prove Assumption of Risk?

1. The plaintiff had actual knowledge of the risks involved in an activity. The defendant must show that the plaintiff knew of the risk that caused his or her injury, such as a sign warning visitors of a known risk on a property.
2. The plaintiff voluntarily accepted the risk. The defendant must also have proof that the plaintiff voluntarily assumed or accepted the known risks of an activity. This acceptance could be implied by words or conduct or expressly noted in a liability waiver.

How Might the Assumption of Risk Defense Affect Your Case?

Economic vs. Noneconomic Damages

What Are Future Damages?

• Future medical care. Any surgeries, treatments, physical therapy, rehabilitation, medications or visits with specialists in the future you may need because of your injury. This includes disability accommodations for a permanent injury.
• Future lost wages and lost earning capacity. If a doctor believes your injury will make you unable to work for a certain period of time, you can seek lost wage compensation for shifts you will miss. If you have an injury that will remove you from your current occupation, you can pursue damages for permanent lost capacity to earn.
• Future emotional and psychological impacts. Many accidents have long-term emotional impacts on survivors. If you notice emotional injuries or are diagnosed with a condition such as post-traumatic stress disorder, you may be eligible for future pain and suffering damages.

Why It Is Important to Seek Future Damages in a Lawsuit

Seeking financial compensation for an injury that someone else caused in Texas will require some knowledge of how the legal process works. You will become familiar with one term in particular: damages. In legalese, damages are the compensation awarded to an injured party (plaintiff) for a negligent party’s (defendant’s) wrongful acts. In some states, the damages available in a personal injury case are limitless. In others, however, damage caps control how much money a plaintiff can recover.

What Is a Damage Cap?

When a court awards damages in a personal injury case, it provides financial compensation to make the victim whole again. A plaintiff in Texas can recover compensation for both economic and noneconomic damages. Economic damages are actual losses, such as medical bills and lost wages. Noneconomic damages reimburse a victim for physical pain, emotional suffering and mental distress brought by an injury.
At the beginning of personal injury law, there were no caps on the damages an injured victim could recover from a defendant. Over time, however, some states began introducing damage caps as a way to protect the system. Damage caps are meant to dissuade people from making fraudulent or frivolous personal injury claims by placing a limit on how much compensation is available. Although some states have since ruled damage caps unconstitutional, certain caps on damages still exist in Texas.

Does Texas Have Any Damage Caps?

Yes, Texas does have damage caps. If you wish to bring a personal injury claim in Texas, your financial recovery may be subject to these caps…but only if you have a certain type of case. Texas law does not place a limit on damages in every type of injury claim. Instead, it only imposes caps in three scenarios.

Medical Malpractice Claims

If you wish to hold a health care practitioner or hospital responsible for your injuries, you cannot recover more than $250,000 in noneconomic damages from each doctor or medical center. You also cannot recover more than $500,000 collectively from all medical facilities. Thus, the most you can receive in total noneconomic damages in a medical malpractice claim in Texas is $750,000.

Claims Against the Government

Under the Texas Tort Claims Act, you can hold the government responsible for its negligence and the negligence of its employees. Damages are capped in lawsuits against government organizations, however. You cannot recover more than $250,000 per person involved, $500,000 for any single event or $100,000 for property damage. This cap applies to both types of damages, economic and noneconomic.

Punitive Damage Claims

Punitive damages are meant to punish a defendant for gross wrongdoing or heinous acts. They are not awarded in every personal injury case. If a judge in Texas does award punitive damages, the amount cannot exceed the cap of $200,000 or twice the amount of noneconomic damages plus an equal amount of noneconomic damages, up to $750,000 (whichever is larger).

How Might a Damage Cap Affect Your Personal Injury Case?

If someone else’s negligence gave you an injury in Texas, the amount you receive in financial compensation from the at-fault party may be subject to the state’s damage caps. This will only be the case, however, if you are pursuing a medical malpractice lawsuit, a claim against a government entity or punitive damages.
In a car accident case against another driver that does not involve punitive damages, for example, you would not encounter any damage caps in Texas. If a damage cap does apply to your case, you will be unable to recover compensation beyond the statutory limit, even if your actual damages are worth more.
The laws regarding damage caps in Texas are controversial and constantly changing. For the most up-to-date information on the current damage caps, including if they will apply to your personal injury claim, consult with an attorney near you.

The goal of a personal injury case in Dallas is to make an injured victim whole again by providing financial compensation for his or her losses. These losses, as well as the compensation available, are called damages in legalese. One of the most common questions asked by plaintiffs during injury lawsuits is, “How much is my case worth?” The answer to this question lies in large part in how damages are calculated.

What Damages Are Available?

First, a victim will need to make a list of all the losses he or she suffered because of an accident. This list will go on the victim’s demand letter, which will get sent to the insurance company of the at-fault party in pursuit of compensation. Compensation is available for many different damages during a personal injury claim in Texas.

• Medical bills
• Lost wages
• Disability costs
• Lost capacity to earn
• Property damage
• Pain and suffering
• Out-of-pocket costs
• Punitive damages
• Wrongful death damages

A victim can seek compensation for both past and future losses. If a victim has a permanent disability from an accident, for example, he or she can seek compensation for a lifetime of medical expenses, surgeries and treatments. In general, the more severe the accident and injury, the more the victim will be awarded in damages.

Economic Damages

Economic damages in personal injury law are tangible or special losses that are specific to the victim. These can include health care costs, property repairs and lost wages. The calculation method for economic damages relies on hard numbers. An insurance company or courtroom will add up the actual amount of the economic losses suffered by the victim using evidence such as hospital bills, repair estimates and pay stubs.
Next, the courts will project future economic damages based on the victim’s existing expenses and his or her medical improvement timeline. This calculation may require a doctor to testify as to how long the victim will foreseeably have his or her injuries, as well as the future medical treatments that will be necessary. With existing bills and medical expert testimony, the courts can calculate an amount in economic damages that is appropriate for the victim’s past and future losses.

Noneconomic Damages

Noneconomic damages refer to intangible or general losses that any injured victim would be likely to suffer. These include emotional distress, physical pain, discomfort, mental anguish and anxiety. Calculating noneconomic damages is not as exact a science as economic damages, as it involves a human factor – the jury’s discretion. It is up to a jury how much to award a victim in pain and suffering. Although calculation methods are available, it is a jury’s decision whether or not to use them.

• Multiplier Method. The Multiplier Method takes a victim’s total amount awarded in economic damages and multiplies it by a number that matches the severity of the victim’s injuries. A victim with a permanent injury, for example, may receive a multiplier of five, while a victim with a minor injury may receive a multiplier of one.
• Per Diem Method. The Per Diem Method is more common in cases where the victim has a prognosis for a full recovery at a determinable date. A jury will multiply a suitable amount in daily pain and suffering damages, often equivalent to the victim’s daily wage, by the number of days he or she will have the injury.

In the end, a jury can award as much or as little in noneconomic damages as it sees fit for the situation, up to a state’s damage cap (if applicable). Typically, juries grant larger awards to victims with severe or catastrophic injuries, such as traumatic brain injuries and spine injuries. These victims will have greater physical pain, emotional suffering and other losses than victims with minor injuries.

Filing a personal injury lawsuit will open the doors to many terms and legal processes you may be unfamiliar with. The one that seems to give claimants the most anxiety, however, is deposition. A deposition does not have to be daunting. A well-prepared deposition can be critical to the success of your case. Work with a personal injury attorney for assistance preparing for one.

What Is a Deposition?

A deposition is a question-and-answer session between a party involved in a personal injury claim and an attorney. In general, if you have to give a deposition during your personal injury claim, you will be answering questions from the other party’s attorney (the deponent). You will answer these questions truthfully and to the best of your ability while under oath. Anything you say during the deposition can be used as evidence in court if your case goes to trial.
A deposition typically does not take place inside a courtroom. Instead, you will go to an attorney’s office to give the deposition. In the room, there will be you, your attorney, the other side’s attorney and a court reporter. The reporter will record the deposition and transcribe it so it can be used in document format during a trial. The presence of your lawyer during a deposition can help you answer the questions in a way that will not hurt your rights or your case.

What Personal Injury Cases Require Depositions?

A deposition is part of the discovery phase of a personal injury lawsuit. It occurs after a plaintiff files a personal injury lawsuit but before the actual trial. The discovery phase of a lawsuit gives both sides of the case an opportunity to gather more information, evidence and documentation based on what the other side already knows. Depositions are typically spoken interviews, while interrogatories are written questions.
If your personal injury case settles before you have to file a lawsuit, you will not have to go through a deposition. If the insurance company refuses to offer a fair settlement or denies your claim, however, you may need to go up against the defendant at trial. In this scenario, expect a deposition. If a deposition is part of your personal injury case, you have no choice but to participate. Upon receiving a notice of deposition, going in for questioning is mandatory.

How to Prepare for a Deposition

If you find out you will have to participate in a deposition, don’t panic. While it is true that a deposition can be very important to your case, there are ways you can prepare ahead of time for the most successful session. Work with a lawyer for in-depth information about what to expect.

• Review the facts. The deposition will be your opportunity to provide testimony on the record as to what happened. Establish the facts and circumstances in your own words and ahead of time. That way, the words will come to you even if you’re nervous during the deposition.
• Go over possible questions with your attorney. Your lawyer will have years of experience attending depositions with clients. He or she can give you example questions the attorney will most likely ask you, so you can prepare answers in advance.
• Take your time. Do not let anything, including the attorney asking the questions, pressure you during a deposition. Take your time listening and understanding the questions, as well as answering them clearly and succinctly. You can ask for breaks whenever you wish.

The typical deposition starts with questions about your basic personal information. Then, it will go into your physical condition before the accident and a description of your current injuries. You will also get to describe the accident in your own words. At the end of the deposition, you will testify about how your life has changed after the accident.
A lawyer can help you prepare for a deposition, including giving you tips on what to say and what not to say. Your lawyer can also give you advice on how to conduct yourself, plus accompany you into the actual room. For more information about personal injury depositions, consult with a lawyer near you.

When you go through the processes required to recover financial compensation after an accident, you will encounter many unique terms. If you hear the word subrogation, this means your insurance company is bringing a lawsuit against a third party in pursuit of reimbursement for what it has spent on your bills. The point of subrogation is twofold: to save the insurance company from having to pay for losses it is not liable for and to prevent an injured victim from double recovery.

What Is Subrogation?

The definition of subrogation is to stand in the shoes of another party or act as a substitute. Within personal injury law, subrogation refers to an insurance company standing in the place of another party to pay for a victim’s bills. Subrogation typically applies to either car accident insurance claims or health insurance benefits. In either case, the insurance company that paid the client will seek reimbursement from a third party.
Subrogation during an injury claim ensures that a victim does not recover twice for the same accident. If the insured has already received payment for his or her medical bills from an auto or health insurance company, that party should not also be allowed to recover compensation from a personal injury lawsuit. This would essentially pay the victim twice for the same damages.
Instead, if an insurance company has already paid off a claimant’s debts, it will be the insurance company that has the right to bring a third-party lawsuit for those expenses, not the injured. Since the insurance company paid for losses when its client was not at fault, it may bring a claim to replace what it spent. The insurance company will seek reimbursement through the subrogation process.

How Does Subrogation Work?

After an accident in Texas, you require immediate medical care. If you cannot pay for this care out of pocket, it does not mean you cannot receive treatment. Instead, an insurance company will step in to help you pay the bills, such as your car insurance or health insurance provider.
Once you have received medical care, your insurance company will send you a form requesting additional information about the accident. The purpose of this form is to determine if there is someone else financially responsible for the accident. If so, your insurer will let you know of its intent to pursue a subrogation claim. You legally must cooperate with this type of claim, meaning you cannot waive subrogation.
Your insurance company can seek subrogation directly from the at-fault party, from the at-fault party’s insurance provider, or from a settlement or judgment award you receive from the accident. How the insurer chooses to pursue subrogation will depend on the company and the factors of your case.

Subrogation and Your Personal Injury Settlement

Subrogation is an action available to insurance companies to prevent them from paying for losses it legally is not responsible for paying. If subrogation is successful, it will not only reimburse the insurance company, but it will also reimburse you for any money you spent on insurance deductibles.
Subrogation may not require your direct involvement if your insurance company goes straight to the at-fault party for reimbursement. If the insurance company places a subrogation lien on your settlement or judgment award, however, anticipate an amount of your award going immediately to the insurance company after winning your injury claim.
You will be required to pay off any liens against your settlement or judgment award before you can keep the remaining amount. With a subrogation lien, the amount of money your insurance company spent on your medical bills will be deducted from your final award won. Then, the remaining amount will be divided to pay for legal fees, lost wages, property repairs and other losses.
For more information about a subrogation claim during a personal injury lawsuit in Texas, consult with a Dallas personal injury attorney.