The number of cases of people injured by the prescription drug Xarelto is steadily increasing as the blood thinner has been linked to gastrointestinal bleeding and strokes. There is currently a multidistrict litigation (MDL) in the Philadelphia Court of Common Pleas, where Judge New has categorized the plaintiffs injured from xarelto into three major categories.

The first category consists of plaintiffs who suffered a gastrointestinal or rectal bleed after taking the drug known as rivaroxaban (Xarelto) to reduce the risk of stroke or embolism (an obstruction in a blood vessel due to a clot or foreign matter that becomes stuck in the blood stream).

The second category of plaintiffs are those individuals who took the blood thinner to treat deep vein thrombosis (DVT), a blood clot formed in a vein. If the clot travels through the bloodstream, it can eventually block an artery in the lungs, leading to pulmonary embolism (PE). The most common scenario for this category are plaintiffs who underwent hip or knee replacement surgery. Those plaintiffs using xarelto to treat DVT or PE and who thereafter suffer uncontrolled bleeding from gastrointestinal or rectal internal bleeding are part of this second category.

In our latest blog entry we discussed the liability of owners for family members who negligently drive their vehicles. Today, we discuss a theory of liability that is often not employed by law firms, but can still be extremely effective. The concept of negligent entrustment revolves around an owner’s responsibility to provide the car to someone who cannot foreseeably use the vehicle to harm others. If the owner knows or should know that the proposed driver cannot drive or does not have the skills to drive, then the owner can be held liable. This liability is especially true of the driver is reckless in how they drive. To make this theory of liability work, it must be proven that the owner had some constructive or actual knowledge of the driver’s inability to drive safely. Specifically, the owner knows or should have known of prior acts of reckless driving behavior. This concept of negligent entrustment is especially applicable in commercial trucking injuries, where the parent company is aware of a history of numerous accidents or positive drug tests that make them aware of the high likelihood of negligence on the part of the driver. Baseluos Law Firm will work to show that client injuries were caused by negligent entrustment to a driver who lacks skill or is incompetent or reckless.

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Negligent entrustment is especially applicable in the case of a rental agency which rents vehicles to an unlicensed or drunk driver. However, if the person renting the vehicle did not exhibit any tell tale signs of recklessness or incompetence or some disability that would impair them, it is more difficult to impute liability to a car rental agency. It should also be noted that if the owner is an employer or has already admitted liability for the driver, then a theory of negligent entrustment is not necessary.

At times, if there is adequate insurance coverage on the driver, then it may not be necessary to involve the driver. However, in many cases, there is no insurance coverage or level of injuries far exceed the level of coverage and therefore the attorney must try to bring in the owner on a negligent entrustment theory. As a matter of trial tactics, a sympathetic negligent driver can also hurt a case for damages, and it is necessary to bring the owner or employer into the case, especially if there is a case for liability.

In our last blog entry on San Antonio trucking accidents , we discussed some of the elements that go into proving employer liability for the negligence of their employees. Today, we would like to discuss the family purpose doctrine. A long time ago, the law allowed the owner to escape liability for the negligence of a driver especially if that driver was a member of the owner’s family. The rule created incredible inequity and unjust results – essentially, a family could be absolved from liability for injuries to others if they had no financial means to pay. The law has recognized this inequity and since evolved. Now, an owner is liable if he extended his permission to a family member to use the vehicle.

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If an owner expressly or impliedly gives his consent to a member of the family, that owner can be held liable, especially if the vehicle was purchased by the owner and used for family activities. To invoke the family purpose doctrine, Baseluos Law Firm works to demonstrate that the owner defendant 1) maintained control and ownership of the vehicle; 2) utilized the vehicle for family activities; 3) the negligent driver was a member of the owner’s family; 4) the driver was using the vehicle at the time for a family purpose; and 5) the owner gave his consent for the use.

The family purpose doctrine is not just applicable to a head of household but also parents and their children. To hold another family member liable, that individual must have been an owner of the vehicle . The registered owner is not necessarily indicative of family car liability. When examining whether a vehicle fits the role of a family car, courts look at factors such as who assumed the financial responsibility for the car; who had the right to control use of the car; and the intent of the family members.

After our prior discussion on pedestrian car accident injuries, we turn now to some of the more common types of collisions. More often than not, some types of accidents like rear end collisions invoke the doctrine of ‘res ipsa loquitur’, a fancy way of saying that we can infer the defendant was negligent and go right to the jury without having to put on specific evidence. It is a great situation for plaintiffs and can make settlement and/or a trial proceed much more smoothly.

To illustrate res ipsa loquitur, there are some common types of accidents that come to mind. In cases where the vehicle leaves the roadway without apparent cause, there is an inference of negligence. Another example is a recent trucking case where Baseluos Law Firm was able to show that a tractor trailer veered into the shoulder where another tractor trailer was legally stationed causing great injuries and property damage. In accidents where injury resulted from a wheel or auto part coming of a vehicle, courts have inferred negligence.

In San Antonio and greater Bexar County, we often see injuries occur where a car comes to a stop on a highway without a collision or where the motor vehicle turns over on a highway without a preceding event. Oftentimes, we see objects such as cargo, equipment, or furniture fall from a vehicle causing injury. If you can believe it, there have even been cases of parked cars accidentally starting and causing collisions. Many of these cases fall under res ipsa loquitur.

trucks-on-the-road-1449684In our last blog entry, we touched on commercial vehicle accidents. It is obvious that the roads in greater San Antonio and Texas are becoming clogged with 18 wheelers and commercial vehicles. These vehicles are large rumbling instruments of injury especially if the driver does not follow federal regulations.

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The first step in successfully prosecuting commercial vehicle accidents is to establish an employment relationship as opposed to an independent contractor relationship. Even if the trucker is an independent contractor, liability can still be bestowed on the company that owns the truck. In strictly looking at an employer-employee relationship, we can bestow liability on the employer if it can be shown that employee was acting within the scope of their employment. More often than not, this is not that heavy a burden to overcome.

Filling up an employer’s vehicle with gas or water is considered within the course of employment. We often see employees mix their personal business with their employment duties and in that case, such behavior is still within the realm of employment and the employer can be held liable for the employee’s negligence. Occasionally, Baseluos Law Firm will run into situations where the employee takes a ‘detour’ from official business. If the employee was acting for his own personal affairs, then he may be outside the scope of employment. However, if the employee is still somewhat acting on behalf of his employer or starts back on his normal course, then an argument can be made against the employer. Some courts look at the degree of deviation from normal course of employment, and sometimes an argument can be made that such deviations are minor and foreseeable and should not absolve the employer from negligence.

school-bus-with-child-1431211In our prior post on driver liability in San Antonio auto accidents, we discussed the theory of negligence and how it applied in some of the common auto accidents we see in San Antonio and Texas. Today, we would like to discuss how violations of traffic laws tie into proving negligence on the part of another driver and pedestrian injuries at the hands of negligent drivers.

There are times when a driver’s violation of traffic laws rises to liability. These are quite frankly the best cases especially if the driver is cited by local or county police on the scene. If the driver pleads guilty and pays a fine, such evidence can be used to demonstrate negligence. Baseluos Law Firm will often contact the local district attorney and county clerk to determine the status of a ticket. If necessary, certified records of the driver’s plea in criminal traffic court can be used at a civil trial to prove negligence.

In many jurisdictions in Texas, the ‘rules of the road’ represent commonly accepted standards of driving, which when violated, can provide the basis for establishing liability in court. The other driver, passenger, or pedestrian who is injured is most often a member of the group of people the traffic laws are designed to protect. To prove liability, it must be shown at trial that the violation of the traffic regulation caused the injury. Juries will receive what is known as a ‘statutory charge’ outlining the presumption of the violation of the law and automatic liability.

In handling motor vehicle accidents, the key question is whether there is a clear case of negligence. The term negligence refers to some conduct that falls below established standards of laws designed to protect people from the unreasonable risk of harm. To succeed in an auto liability case, a good lawyer must prove the other driver violated a legal duty to use care in the operation of his vehicle and that such a violation was the primary cause of injury to another person.

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When investigating a negligence in an auto accident, it is imperative to show that the person failed to exercise ordinary care. The degree of care we expect from the operation of a motor vehicle accident can vary. In Texas, particularly in San Antonio, the degree of care we expect varies with the condition of the road, weather conditions such as rain, and the presence of children.

Negligence in the operation of a car can also be measured by a driver’s violation of traffic laws. A ticket given at a scene by the San Antonio police is a tell tale sign that there is negligence, and makes for a strong case. Sometimes drivers can be considered negligent even if they operate within the law. For example, during a torrential rain on a slick road, San Antonio drivers may still be held negligent even if they drive within the speed limit. The question is whether the driver drove at a speed that was reasonable and proper under the existing traffic conditions. A driver can be driving within the speed limit and still be held liable for driving too fast under the conditions.

Imagine you are walking down a public street and a police officer approaches you and expresses a desire to ‘ask a few questions.’ This is a scenario that plays itself out throughout the country. Police officers stop people on the street and conduct face to face questioning. They question people during car stops for traffic offenses. They may conduct questioning while making visits to a home or office. Sometimes, they may ask individuals to come down to the station or they may contact people over the phone. The first pressing question is whether a policeman can stop you on the street and question you even if there is no reason to suspect any wrongdoing.

The answer is ‘Yes’. Even without a reasonable suspicion, law enforcement can approach people for questioning and even ask to search objects in your possession. However, a line is drawn if the officer suggests you MUST talk to them or allow them to search your person or possessions. This is impermissible under the Supreme Court’s ruling in US v. Dayton. The rule of thumb is that a person is not generally required to answer inquiries from law enforcement or submit to a search.

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There are exceptions where law enforcement will ask for identification. Most states have “stop and identify” which allows law enforcement to detain individuals and request identification provided there is a reasonable suspicion of criminal acitivity. Under Texas penal code, Section 38.02 , a person commits an offense if he refuses to give identifying information to a police officer who has lawfully arrested him. The general rule of thumb if you are unsure is to provide only your name, date of birth, and residence when asked. However, beyond this information, you have a Fifth Amendment right to remain silent. You cannot be punished for refusing to answer questions beyond identifying questions. Recent Supreme Court decisions have stated that you must verbally assert your right to remain silent with a simple “I invoke my right to remain silent.”

In our last two blog entries, we have discussed measures of valuating damages in Texas auto accident cases including market value and replacement value . Again, these types of discussions are not limited to car wrecks – these forms of damages are applicable in any claim for damages to personal property.

The third category of valuation damages is the actual or intrinsic value to the owner, which is a type of damages that is only applicable where market or replacement value cannot be calculated. For example, property that provided for the comfort and well-being of the owner does not have market value, but may have intrinsic value. Common examples of items with actual or intrinsic value are clothing, furniture, and photo albums.

As you can probably conclude, actual or intrinsic value is generally not used to measure damages in auto accident cases, unless there are some very unique circumstances. Intrinsic value is the value of the property to the owner, excluding sentimental value (another category of damages we will cover later on). The actual value of an item is not restricted to the item’s market value at the time of loss. Basically, it’s incredibly difficult to put a market or replacement valuation on household goods, clothing, and personal effects. For example, in one case a Texas court ruled that damages to the contents of a mobile home do not need to be based on market value.

To prove actual / intrinsic value, the injured party will testify about the value of the damaged property as the owner. Generally, various forms of evidence can be introduced to clarify the property’s value including its condition before the damaging event, the original cost, age, level of use , cost of replacement, and possibly experts.

A San Antonio negligence attorney will actually state in the petition for damages that market and replacement value measures of value will not adequately compensate an injured plaintiff. Generally, courts do not require an injured party to prove household goods, clothing, and personal effects have no market value.

What is interesting is the ever rising use of online auction sites like Ebay . The idea that somehow household goods, clothing, and personal effects may not have market value or a replacement value may be going the way of the dinosaur. An experienced Texas injury lawyer will confer with his clients about the prices certain household goods may be fetching on these online auction sites.

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The final category of valuation damages is sentimental value, the fallback where market value, replacement value , and actual value do not apply. Keep in mind that sentimental value takes into account the owner’s special feelings about the items. Examples of damaged property for which Texas courts have allowed the recovery of sentimental value include family heirlooms, items belonging to grandparents or earlier generations, pictures, birth records, trophies, and wedding pictures. Baseluos Law Firm will confer about the client’s sentimental feelings and put the opposing party on notice that the plaintiff will be seeking sentimental damages.

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In our last blog entry , we discussed recovery of market value in auto accident cases . Today, we will discuss methods of proving market value and other methods of proving valuation of your damaged vehicle. These types of methods are not just applicable to auto accidents – they can be applied to any type of property damage from negligence.

To prove market value (defined as the difference in the value of the item immediately before and immediately after the collision), an injured party can offer either his/her own personal testimony or that of an expert provided the testimony deals with market value as opposed to sentimental value. The witness must be familiar with the market value of the property and the value must be measured at the time of the auto accident, not the value at time of trial.

A market value witness can introduce common appraisal guides like Kelley Blue Book which publishes automobile vehicle valuations as well as before and after photographs of the damaged vehicle.

Another critical component to proving market value is to introduce the repair bills to prove the difference in market value before and after the collision. The argument here is that the vehicle repair would ultimately make the vehicle like new or restore the car back to full working mode. Therefore, the cost of repairs becomes the primary evidence of loss in market value. The collision repair estimates then represent the difference in value before and after the car accident.

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There are certain proposed measures of damages which the Texas courts have ruled are inadmissible as a means of proving market value including the purchase price of the vehicle (cars depreciate) and any amount remitted by the insurance company for losses.
If market value is not a viable option, the next category of valuation damages is replacement value, meaning the cost of replacing the car or reproducing the damaged goods. The cost of replacement is reduced by any enhancements or upgrades to the vehicle which were not present before the accident. In addition, the damages must be reduced by the depreciation of the original vehicle and the salvage value. So a vehicle that is 10 years old which is totaled in a San Antonio car accident could theoretically be replaced by a newer vehicle. However, replacement value would be reduced by the decrease in value due to depreciation and any salvage value of the original property.

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