San Antonio Injury Attorney Blog

As Texas roads become littered with more and more trucks traveling across state lines, Texas residents are at greater risk of catastrophic heavy truck accidents. If you have been a victim of a heavy trucking accident in Texas or the greater southwest region, then time is running against you and it is imperative that you contact a Texas personal injury attorney who can guide you through the maze of discovery and help your case obtain critical time sensitive evidence.

Today, all major tractor trailer and heavy truck drivers in Texas and the companies that employ them are governed by Federal Motor Carrier Safety Standards . The standards and regulations of this government agency are designed to reduce Texas crashes and injuries caused by trucks and buses.

The most significant aspect of these regulations is that in the course of an investigation a Texas personal injury attorney can discover specific violations of the Federal Safety standards. Any violation automatically creates the presumption of negligence per se, a legal term used to reflect negligence as a matter of law. In negligence per se situation, the issue of whether the truck driver committed negligence has already been answered and the question never goes to the jury. With negligence per se, a personal injury victim is eligible to receive punitive damages, which are intended to punish reckless conduct and are awarded in addition to actual damages.

A Texas strong heavy trucking accident attorney will take important steps such as the subpoena of the driver's trip expenses and compare those expenses with the driver log. Oftentimes, there will be discrepancies between the expense record and the log. For example, the trip expenses may show the driver was operating the vehicle while a log shows the driver was sleeping. Under federal regulations, drivers can only operate their vehicle for so many hours within a given period.

Other steps include a thorough mechanical survey of the truck's brakes and other potential mechanical issues to determine whether improper maintenance caused the accident. Again, improper maintenance would be considered negligence per se.

A Texas personal injury attorney will employ a heavy trucking expert to discuss discrepancies in the driver's log and poor maintenance to influence a jury as to who truly was at fault.

More often than not, a Texas personal injury attorney will need to employ an expert in a complex personal injury case, especially those involving complex auto accidents or product liability cases. The United States Supreme Court has decided several landmark decisions that define acceptable experts and their testimony. Those cases include Daubert v. Merrel Dow Pharmaceuticals and Kumho Tire Inc. v. Carmichael . However, the plaintiffs' bar is discovering that more experts are being disqualified at an alarming rate.

Many times, once the plaintiff's expert has been disqualified, the defendants will win on summary judgment, because the plaintiff can no longer prove causation. Texas has tightened standards in some cases. For example, some Texas courts have taken the position that a substance alleged to be cancerous, such as benzene, must have evidence indicating a 100% increase in the cancer rate over the general population. In other cases, judges have been known to exclude animal studies of product exposure as being unreliable despite the fact that animal studies are routinely used in Food and Drug Administration (FDA) and Occupational Safety and Health Administration (OSHA) risk assessments.

In the past, courts often looked favorably on the local certified engineer or registered professor to testify on behalf of the injured plaintiff. That is no longer the case. These days, especially in the area of products liability and testimony regarding a defective product, the only acceptable expert will be one who was involved in the design of a similar product.

In addition, a test of basic scientific principles by a local expert may not be acceptable to the court on account that the test is not recognized by the scientific community and has not been deemed a reliable test in a peer reviewed journal.

As you can see, it is very likely that experts and their scientific evidence which the courts once accepted, could now be excluded. Once a court excludes an expert, then defense lawyers take the exclusion order to other courts where that expert will testify and try to use the order to disqualify the expert again.

To properly navigate this growing system of expert exclusion, a San Antonio and Texas products liability attorney must have experts who were previously employed in a similar industry (for example, the pharmaceutical industry) and who were involved in the design of a similar product. Rigorous research is needed to make sure the peer publications are strong enough to back the expert opinion and that his method of research is accepted as a reliable. The more scientific evidence published by the expert in a journal of his / her peers, the more likely, the expert will be Daubert-proof.

In San Antonio and greater Texas, many workers earn a hourly wage plus commission. There are lingering questions about the payment of such commissions, and such wage and hour issues can be the object of legal action through a Texas employment attorney . For example, in the case of a tax-preparation company, an employee discovered that the business paid commissions only at the end of the tax season. She thought the commissions would be paid in conjunction with the payment of her hourly wages. The question then becomes: Can the employer make the employee with this long to receive commissions ?

Under Texas state labor laws and payday requirements , commissions should be paid no later than the end of the month following the month in which they were earned. So for example, a commission earned in January must be paid by the end of February.

However, exceptions to the commission policy exist where there is a written agreement according to the Texas Workforce Commission. If the written agreement was signed by the employee and the employer prior to the start of employment, the terms of the written agreement would dictate payment terms.

Employers have wide latitude to change the terms of commission payment, but they cannot interfere with payment of earned commissions. An employee who continues working after the modification of a commission payment plan may be deemed by the courts as having accepted the new terms of payment.

Employees who have been denied or delayed commissions may have a cause of action against their employer for breach of contract and possibly fraud. Even without a written agreement, a provision of Texas law allows the recovery of commissions under the quantum meruit theory.

Employees may first have to file a complaint with the Equal Employment Opportunity Commission or the Texas Workforce Commission Division of Human Rights. It is best to consult with an attorney when filing the complaint as it will set the stage for a potential Texas employment lawsuit in the future.

With the advent of allergy season and the growing awareness of disability accommodation, Texas employment lawyers are facing unique challenges each day. Consider the case of the woman who exhibits all the symptoms of a severe allergic reaction including heavy coughing and watery eyes. It turns out the allergic reaction is being triggered by a nearby co-worker's perfume. The woman has requested that her co-worker stop wearing the perfume, to which the co-worker has replied , "Sorry, but it's a wonderful fragrance". The woman has requested to be moved several seats away, but the boss has been reluctant to become involved.

What are the woman's rights in this situation ? Can the employer order the co-worker not to wear the offending fragrance ?

According to the U.S. Equal Employment Opportunity Commission (EEOC) , which regulates the Americans With Disabilities Act, a person is disabled if they possess a physical or mental impairment that inhibits a major life activity.

The key question under Texas employment law is whether the woman's allergies fall under the classification of a disability. If so, the boss' refusal to get involved could hurt the company. Under the Americans With Disabilities Act , any serious physical condition may be considered a disability. Any condition that affects a major life activity such as breathing would be considered a disability. Allergies and asthma are certainly conditions that affect major life activities and qualify under the ADA .

So what should the employer do? Under the ADA, the employer is obligated to make a "reasonable accommodation" unless it would cause the employer an "undue burden". There is no strict legal definition for what constitutes an undue burden. Courts will look to the size of the business and the costs of the changes. In our case, moving the woman a few seats away from the offending perfume, would constitute a reasonable accommodation, and would most likely be legally required.

Nor should you be afraid to say something if your employer refuses to make such reasonable accommodation. The ADA expressly prohibits retaliation or discrimination against those individuals who exercise their rights or assist others in doing so. If you feel you are the victim of coercion or harassment for exercising your rights, you may contact the U.S. Attorney General , or your Texas State Attorney General , and file a complaint. The Attorney General can bring a lawsuit to hold employers accountable where there is a general pattern of discrimination.

In addition, you may hire a Texas employment attorney to acquire a court injunction to force the employer to make such reasonable accommodation and pay legal fees. A San Antonio personal injury attorney can fight for your reinstatement and back pay if applicable.

In our last entry, BLF discussed the trends in San Antonio and greater Texas personal injury cases involving parental liability for the negligent acts of their children. We covered parental liability for the use of dangerous instruments especially where the parent(s) know their children are using dangerous instruments and may have violent tendencies. The common dangerous instruments are ATVs and guns, including non-lethal paintball guns.

In this entry, we discuss claims involving a minor's use of an automobile (including motorcycles) which harms another. The common tort for a parent's civil liability is known as a claim for negligent parental entrustment of a motor vehicle. The basis for such a claim is two-fold. First, the parent must have exercised some control over the vehicle. Second, the parent must know of a child's tendency to drive recklessly.

The fact that a parent owns a vehicle under many Texas Supreme and state court decisions is not enough to qualify under the claim of negligent parental entrustment. In fact, many courts throughout the nation have stated that a parent may have to be physically present while the child was operating the vehicle in order to hold the parent liable for negligent entrustment of a motor vehicle. You should consult with a personal injury for the latest requirements on a negligent entrustment claim.

In addition, with respect to a parent's knowledge of a child's propensity to drive recklessly, some courts have ruled that a parent's knowledge of prior traffic accidents may not qualify as knowledge. Courts have ruled that the existence of prior motor vehicle accidents involving teenagers does not necessarily reflect knowledge by the parents of a tendency to drive recklessly. Because claims are very fact specific, and the law is always changing, consult with a greater San Antonio Texas personal injury attorney. Reckless teen driving is always a potential negligent entrustment claim.

Parents should also be aware they can be held liable for alcohol consumption by a minor child which causes injury to others. The Texas courts are very specific that parents can be held civilly liable where they furnish alcohol to the minor. Texas laws for furnishing alcohol to minors under the Texas Alcoholic Beverage Commission (TABC) permits liability where a party is injured by an intoxicated person under age 21 and the parent furnished alcohol to the minor. Parents should be ultra vigilant where they encourage alcohol consumption by minors in San Antonio and greater Texas.

Generally, parents will not often be assessed civil liability for the negligent acts of their children. However, in situation where parents did not properly supervise their children's use of dangerous instruments such as ATVs and guns, including paint ball guns, there is potential liability. In addition, liability for a minor's use of a motor vehicle or consumption of alcohol can still attach to the parents. Key questions include the parent(s)' knowledge of violent propensities by the child in the case of dangerous instruments. Check with your greater San Antonio Texas personal injury attorney for your options if you have been personally injured by a minor.