Texas Law
Texas Personal Injury Law: General
- Personal Injury Law: General
Personal Injury Law: General
Personal injury law is based in torts. Broadly defined, a tort is a harmful act or failure to act for which the law provides a remedy. There are many different kinds of torts. Physically injuring someone is a tort; so is damaging a person's property or character, or wrongly denying someone his or her liberty. The basic principle of tort law is that injured persons should be compensated by those responsible for their injuries. Thus, a victim of a tort has the right to sue the tortfeasor (the person committing the tort) for damages.
Though often confused, torts and crimes are separate in the law. A tort is a civil wrong against an individual that exposes the tortfeasor to liability. A crime is a wrong against society or the state and is punishable by incarceration or a fine. Some acts, however, can be both a tort and a crime. For example, someone who uses force to cause bodily injury commits a tort known as battery and is liable to the victim for damages. Battery also is a misdemeanor under Texas law, punishable by up to one year in prison and/or a fine of up to $4000. Thus, a person could be prosecuted and convicted of the crime of battery, and also face a civil lawsuit brought by the victim.
This chapter outlines general tort principles and theories of recovery, including products liability law. However, because personal injury law is wide and varied, with many different applications, this Guide has devoted two additional chapters to exploring areas of personal injury law relevant to consumers. Professional malpractice is discussed in the Personal Injury Law: Medical & Professional Malpractice Chapter, and person injury law in the automobile, railroad, aviation, and maritime contexts is outlined in the Personal Injury Law: Transportation Chapter.
Theories of Tort Liability
The law generally recognizes three types of torts: intentional torts, negligent torts, and torts based on strict liability. Each of these torts is unique and has its own requirements for recovery, but may overlap in application. For example, if a person is injured by a product, he or she may sue the manufacturer under a theory of negligence or strict liability. And, depending on the particular situation, he or she also may be able to sue the assembler, wholesaler, retailer, or anyone else involved in the product's production and distribution. Even used car dealers who sell rebuilt or reconditioned automobiles can be products liability defendants. (For purposes of this chapter, the term "manufacturer" is used to describe all potential defendants.) Which theory or theories a plaintiff uses depends on the facts of his or her particular case. Defendants also may be liable for personal injuries resulting from breach of warranty.
Intentional Torts
As the name implies, an intentional tort is a wrong based on an intentional action, as contrasted with carelessness. Battery is an example of an intentional tort--the defendant intended to hit the plaintiff. Other examples of intentional torts include assault (threatening someone with physical violence), false imprisonment, invasion of privacy, and trespass. Defamation usually is considered an intentional tort, because the defendant intentionally prints or speaks the defamatory statement.
To proceed in a lawsuit for damages caused by an intentional tort, a plaintiff must show that (1) the defendant committed the tort, (2) either the defendant intended the consequences or the consequences were the natural, direct, and probable result of the tort, and (3) the defendant's act was a substantial factor in the resulting harm or injury. In some cases, however, there are defenses to intentional torts that excuse the defendant from liability. For example, someone may commit battery in self-defense. Similarly, the truth of a statement is a complete defense to a defamation action.
A plaintiff suing for an intentional tort is not always required to show out-of-pocket damages in order to proceed with a lawsuit. In the case of defamation, for example, the resulting emotional distress and mental anguish are considered sufficient damages to justify a lawsuit. Plaintiffs who suffer quantifiable injuries are entitled to compensatory damages, that is, damages that compensate them for injuries to person or property. They also may receive punitive damages (damages aimed at punishing the defendant and deterring future similar action) if the tort was particularly malicious.
Negligence
Negligence has to do with how careful a person was when he or she caused an injury, and how careful, according to the law, he or she should have been. There are four requirements to proving negligence. A plaintiff must show (1) the defendant had a duty to conform to a certain standard of conduct to protect the plaintiff from unreasonable risk, (2) the defendant breached that duty, (3) the defendant's breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages.
Duty and Breach
In general, the law imposes a duty on every person to behave as carefully as a reasonable, ordinary, prudent person would behave in a similar situation. This is known as the reasonable person standard. A defendant's actions must fall short of the reasonable person standard in order for the defendant to be found negligent. If a court determines that the defendant acted reasonably, he or she is not negligent and not liable for damages, even though his or her actions may have caused injury. Children typically are held to a lower standard than adults; professionals, such as doctors, are held to a higher standard. Under Texas law, doctors and other health professionals must act in a manner that is acceptable and appropriate for reasonably prudent health care providers in similar circumstances. A plaintiff suing a manufacturer for negligence must show that the product that caused the injury was defective because of the manufacturer's carelessness in making the product.
Proximate Cause
Proximate cause means legal cause for purposes of assigning liability. Sometimes a defendant's action may be too remotely related to the plaintiff's injury to be considered a proximate cause. For example, in a famous 1928 New York case, a railroad employee helped a passenger onto a moving train by pushing him from behind. In the process, a package the passenger was carrying, wrapped in newspaper and containing fireworks, dislodged, fell, and exploded. The force of the explosion knocked down some scales at the far end of the train platform, a considerable distance away, injuring the plaintiff. The plaintiff sued the railroad company for damages. The court ruled that because the railroad employee could not foresee the complicated and unlikely sequence of events that led to the plaintiff's injury, the employee's action was not the proximate cause of the plaintiff's injury. In other words, although the railroad employee's action "caused" the plaintiff's injury in a technical sense, the line of causation was too remote to hold the railroad company liable.
Damages
Damages must be proven in a negligence lawsuit; otherwise, the lawsuit will be dismissed. That is, even if the plaintiff proves negligence, he or she must have suffered some injury for which compensation is required, in order to have a complete lawsuit. A plaintiff who successfully proves the defendant's negligence is entitled to compensatory damages. In addition, if the plaintiff proves the defendant acted willfully, maliciously, fraudulently, or with gross negligence, the plaintiff also may recover punitive damages. However, Texas law limits the recovery of punitive damages in most tort actions, including negligence. In general, punitive damages may not exceed an amount equal to the greater of (1) two times the amount of economic damages, plus an amount equal to noneconomic damages up to $750,000, or (2) $200,000.
The outcome of lawsuits alleging negligence can be difficult to predict because the reasonable person standard is vague, imprecise, and apt to be interpreted differently by different people. Applying the reasonable person standard to a particular set of facts is a subjective process. Finding an attorney with experience in negligence cases and skill in arguing the reasonable person standard to a judge or jury is the key to a successful lawsuit.
Comparative Responsibility
In some personal injury cases, it turns out the plaintiff was partly at fault in causing his or her injury. Texas follows the doctrine of comparative responsibility, which enables a jury to apportion liability in a lawsuit. In negligence actions, including malpractice actions, a plaintiff can recover damages only if his or her percentage of responsibility is less than or equal to 50 percent. In strict liability or breach of warranty actions, a plaintiff can recover damages if his or her percentage of responsibility is less than 60 percent. (Comparative responsibility is not a defense in intentional tort actions.) The jury must determine the percentage of responsibility of each party for each claim asserted. If the plaintiff's percentage of fault does not exceed the percentages given above, the plaintiff is entitled to recover damages. However, the court will reduce the amount of damages by a percentage equal to the plaintiff's percentage of responsibility. For example, if the jury finds the plaintiff ten percent negligent in a car accident, and finds the defendant 90 percent negligent, the defendant has to pay only 90 percent of the damage award.
Strict Liability
Under the theory of strict liability, the plaintiff contends that the defendant is liable regardless of fault. The issue of how careful a defendant was or should have been is irrelevant. Even if a defendant's actions were entirely reasonable, strict liability imposes liability on the defendant if he or she caused the plaintiff's injury.
Historically, strict liability was only used in cases in which a wild animal or an ultrahazardous activity caused an injury. For example, people who demolished buildings, dusted crops, or manufactured explosives, were automatically liable for injuries caused by their activities. In 1963, strict liability was first applied to a defective product context. Since then, it has become the principal theory of recovery in product liability cases. One reason for applying strict liability to defective product cases is that manufacturers (often large corporations) are in a better position to incur the costs of the injuries caused by their products than the individuals who are injured. Moreover, by requiring manufacturers to pay damages for injuries caused by their products, regardless of fault, the law encourages manufacturers to produce safe and dependable products.
The principal purpose of products liability litigation is to compensate persons injured by defective products. But products liability litigation also serves an important public policy interest. It serves as a means for society to collectively decide how safe manufacturers ought to make products that consumers use every day. The application of strict liability in product liability cases demonstrates society's changing attitudes toward product-related injury.
To prove a case based on strict liability, six elements must be established. A plaintiff must show (1) the seller was engaged in the business of selling the product that caused the harm, (2) the product was defective when sold, (3) the product was unreasonably dangerous to the user, (4) the product was intended to and did reach the user without substantial change in the condition in which it was sold, (5) the product caused the user physical injury or property damage, and (6) the product was not fit for its intended use or a reasonably foreseeable use at the time it left the manufacturer.
Defective Products
Manufacturers are strictly liable only for defective products that cause injuries. Therefore, the threshold requirement is to show the product to be defective. Exactly what constitutes a defect remains imprecise, but courts agree that there are three separate types of defects: manufacturing defects, design defects, and defects in warning.
A manufacturing defect occurs when a product is not manufactured according to its design: a screw is forgotten, or a protective cover is improperly fastened. If a product has a design defect, the design itself is dangerous. Manufacturers have a duty to safely design products for their intended use as well as for any foreseeable misuse. For example, a kitchen cleaning agent must be designed for safe use in cleaning countertops and stovetops; also, because it is foreseeable that a child might drink the product, the manufacturer may be required to design the product's container with a child-proof cap.
A defect in warning concerns a manufacturer's failure to adequately instruct or warn a consumer about a product's dangers. According to the law, a consumer has the right to be properly apprised of any risk in using the product. This duty to warn extends to products already sold. If a manufacturer discovers a product's potential hazards after the product has been introduced into the market, the manufacturer must find a way for the warning to reach even early consumers. The manufacturer even may have to recall the product.
Product dangers that are "open and obvious" do not require warnings. For example, a kitchen knife does not need to have a warning label that the blade is sharp and can cause injury. What constitutes "open and obvious" is not strictly defined, however. Something that is obvious to one person may be unforeseeable to another. Consequently, some manufacturers will warn consumers about even remote risks so as to defend against potential lawsuits.
Proximate Cause
In addition to proving that a product is defective, a plaintiff also must show that the product caused his or her injury. While this may not be a difficult task in many situations, it can be in others. For example, proving that a particular drug caused a plaintiff's injury requires a great deal of medical evidence. A plaintiff may have to counter arguments made by the defendant that the injury was caused by something other than the drug. And because medicine is an inexact science, the answer to the question of causation is sometimes never satisfactorily determined.
Damages
If a plaintiff is successful, he or she can recover compensatory damages for personal injury or injury to property. A plaintiff also can receive punitive damages if the product was especially injurious, as a way to punish the defendant for making and selling the product. However, Texas legislation has limited the recovery of punitive damages in strict liability actions as well. As in other tort actions, punitive damages in strict liability actions may not exceed the greater of (1) two times the amount of economic damages, plus an amount equal to noneconomic damages up to $750,000, or (2) $200,000.
It is important to note that the doctrine of comparative responsibility applies to products liability cases. If a plaintiff fails to exercise ordinary care in using the product that caused his or her injury, the amount of recovery can be reduced.
Issues in Tort Cases Generally
Burden of Proof
As discussed in the Process of a Lawsuit Chapter, a plaintiff in a civil lawsuit has to prove his or her case "by a preponderance of the evidence." In other words, the plaintiff must show that a majority of the evidence establishes that the defendant is liable. This is different from the burden of proof in a criminal case. In a criminal case, the prosecution must prove the defendant's guilt "beyond a reasonable doubt"--a much higher standard. When a tort is also a crime, the results from the civil and criminal cases do not have to be consistent; in fact, the outcomes frequently are contradictory. Because the criminal burden of proof is higher, a defendant may be acquitted of committing a crime, but liable in a tort action.
Affirmative Defenses
A defendant who asserts an affirmative defense does not deny the evidence against him or her, but argues that there is some other reason that he or she should not be liable. In the tort context, an example of an affirmative defense is comparative responsibility. Assumption of risk also is an affirmative defense. The doctrine of assumption of risk states that, because the plaintiff was aware of the potential for injury and proceeded nonetheless, the defendant's liability should be reduced, if not erased altogether.
Vicarious Liability
Vicarious liability is a legal principle under which one person is held liable for the tortious act of another, even though the first person was not involved in the act, did nothing to encourage the act, and even may have attempted to prevent it.
The most common form of vicarious liability occurs in the area of employment. An employer is liable for any tortious act committed by an employee acting within the scope of employment. Exactly what actions are "within the scope of employment" is a tricky issue. If an employee is driving his or her own automobile to work and hits a pedestrian, is that within the scope of employment? Probably not. What if the employee is driving a company car he or she routinely takes home? This is a better case for establishing vicarious liability. What if a telephone repairperson making a house call during working hours causes an accident while driving a company van? A court will almost certainly find the employee to be acting within the scope of employment.
Another application of vicarious liability is to bar owners or others who provide alcohol to a person who then commits a tort. Under Texas law, anyone serving alcohol to an obviously intoxicated individual may be liable for intoxication-related damages caused by that person.
Joint and Several Liability
In cases in which two or more defendants are responsible for a plaintiff's injury, and it is unclear which defendant is responsible for which portion of the injury, the defendants can be found jointly and severally liable for damages. In other words, a plaintiff has the right to collect the damage award from the defendants as a whole or individually, depending on the plaintiff's preference.
Wrongful Death Lawsuits
If a person dies from a defendant's tortious action, the decedent's survivors or estate may bring a lawsuit for wrongful death. Survivors include the decedent's spouse, children, and parents, but not siblings. Each survivor may recover for loss of the decedent's support or services, for pain and suffering, and for grief and mental anguish. The estate can recover for lost earnings from the date of injury until the date of death, and for funeral and medical expenses if paid by the estate.
Government Immunity
There was a time when citizens could not sue the government for torts committed by government employees. This immunity has been waived in large part by federal and state governments, including Texas. The Texas state government may be liable for many of the torts of its employees. However, there are limits. The state is under no duty of care in the exercise of its discretionary power to enforce the law. If an injury results from an act or omission of a governmental employee exercising governmental discretion, neither the state nor the employee is liable. A person cannot sue the fire department for failing to put out a fire in his or her house, or the police department for failing to stop the theft of his or her car. Only if a plaintiff can show that the government owed him or her a special duty beyond that owed to the public at large, will he or she prevail in a tort suit against the government. Further, Texas law caps the amount of damages a person can recover from the government. Punitive damages only are recoverable in limited instances.
Statute of Limitations
There are limits on the time period in which a lawsuit can be filed. For example, a lawsuit based on negligence must be filed within two years from the time the cause of action arose. If a person fails to file a lawsuit within the time period prescribed by the statute of limitations, the person loses the right to file that lawsuit. (See the Process of a Lawsuit Chapter for more information on statutes of limitations.)
Products Liability Lawsuits Based on Breach of Warranty
Whenever a person purchases a product, a contract has been formed. Sometimes that contract will include express warranties; it will almost always include implied warranties. An express warranty is an express written or oral affirmation or promise about a product. An implied warranty is a warranty that is implied by Texas law when goods are sold. Under Texas' law of implied warranty, all goods that are sold must generally be fit for their intended purpose. If a product is not generally fit for its intended purpose, or if it does not meet the terms of its express warranty, a person injured by the product may sue the manufacturer for breach of warranty.
Unlike negligence lawsuits, breach of warranty lawsuits do not involve proof of fault. Instead, a plaintiff must show evidence of a product's failure to meet the terms of the warranty. This evidence may be similar to the "defective product" evidence. One characteristic unique to breach of warranty lawsuits is the possibility of recovery for economic loss. Unlike strict liability and negligence product liability lawsuits, in which plaintiffs are limited to recovery of compensatory and punitive damages related to the injury, a plaintiff in a breach of warranty lawsuit may recover the costs of repairing or replacing the defective product, as well as compensatory or punitive damages.