The Litigation Process in a Texas Personal Injury Lawsuit

Posted on Tuesday, November 13th, 2018 at 7:08 pm    

The majority of Texas personal injury claims are settled without having to take them to trial. It might take some serious negotiating, but generally both plaintiffs and defendants shy away from the additional expense and effort of taking a claim further if a resolution can be achieved to the satisfaction of both the defendant’s insurance adjuster and the plaintiff. However, a minority of claims do eventually lead to a lawsuit as there may be no other way to recover the damages involved after a serious or catastrophic injury. Defendants, and in particular their insurance carriers, may simply dig in their heels, hoping that they can shake off the plaintiff without any further negotiating.

Filing a lawsuit and taking a case to trial may be the last resort, but with a skilled and determined personal injury attorney, it may help to provide the injured victim of an accident for which he or she was not to blame with the financial resources to cope with a major injury.

Step one: filing a petition

A Texas personal injury lawsuit starts by the plaintiff filing a petition with the appropriate civil court. The petition sets out the grounds for claiming compensation. It outlines the accident and who the plaintiff believes was responsible, how negligence caused the plaintiff’s injury(ies) and how this has affected the plaintiff from a financial and psychological point of view.

The defendant then responds to the petition, usually through his or her insurance carrier’s own attorneys. It is unlikely that a claim for compensation would start with a lawsuit as negotiations would have been attempted already.

Step two: discovery

Discovery as part of the litigation process takes place so that both the plaintiff’s and defendant’s counsels can discover what evidence the other side has that can affect the outcome of the trial. Discovery may take the form of interrogatories, depositions, making available documents and records, and any other evidence such as photos, crash investigation reports and so on.

It is important that a plaintiff has chosen an attorney with the experience and familiarity with the discovery process in a personal injury lawsuit as discovery will become a crucial part of the litigation procedure before the trial itself.

Step three: the trial

The trial will determine whether the defendant is liable for the damages claimed. The date for the trial will be determined by the trial judge depending on the trial schedule the judge has. This can be frustrating as the trial date may be moved back if complications arise with trials booked in beforehand or the judge decides to set a date for a new trial before

Choosing an attorney who is prepared to go the whole way with a personal injury lawsuit

For any queries about help with personal injury claims after a serious injury caused by another person’s negligent actions, contact an attorney who is prepared to go all the way if that is what it takes at the Patino Law Office in McAllen, Texas, at 956-631-3535 today.

 

 

What to Do When You Have a Smash But No-one is Injured

Posted on Tuesday, October 23rd, 2018 at 9:26 am    

The biggest worry if you have a car crash is not how much it is going to cost you, but whether anyone is injured and what you should do about it at the scene of the crash. Later on, when injuries have been attended to, it may be time to reflect on what happened and who was to blame for the accident and whether you can claim compensation, assuming you were not at fault yourself.

In some car accidents no-one is injured

But not every crash ends in injury. Sometimes it’s the vehicle or vehicles that are worse for wear after an accident and the occupants are unscathed. Perhaps a little shocked and dazed, but nothing that needs treatment. If you do think you, or any occupants of your vehicle, may have been injured, it is best to get yourselves checked out by a doctor as soon as possible. Some car accident injuries may not show up until later yet could affect your health or require treatment or recovery time away from work. Unless you get any potential injuries documented, you will not be able to claim for them later.

Assuming then, that no-one has been injured, you should still contact the police and report the accident. Unless there has been an injury reported or there has been a major traffic hold up, it is quite possible that the police do not show up at the crash site. Your reporting to them is still important as far as an insurance claim is concerned.

Before you call the tow truck to remove your vehicle or drive it away yourself if that is still possible, make a note of the other vehicle’s registration, name of the driver, insurance details and contact details.

If you have a cell phone with a camera app on it, take as many photos of the damage done as you can the position of the vehicles involved and any other evidence, such as damage to the road, barrier, trees etc. Make a written note of your recollections and the response of the other driver. If you recall seeing the other driver use a cell phone, or he / she was driving erratically, make sure you note that down as well.

After your vehicle has been removed or you move on, the next step will be to call your own insurance provider giving them all the details you have.

The claim process if you or any other occupants were not injured is relatively straightforward, generally much more straightforward than if a personal injury is involved.

Calling a car accident attorney

Generally, if there is property damage alone it isn’t really necessary to use an attorney to help with a claim. Personal injury attorneys are involved when there is an injury or if there is property damage together with an injury. In Texas, it is absolutely necessary to get help from a personal injury attorney if someone has been injured and you believe that the other driver was to blame for the accident. Your claim will be for property damage, medical expenses, lost earnings and compensation for the pain and suffering involved. It is much more likely with such a claim that the other driver’s insurer will dispute some or all of the claim, making it important that your documentation is as good as you can get it. Personal injury claims routinely fail because the documentation is insufficient to prove that the accident was someone else’s fault or that your injuries actually happened in the crash you were involved in.

For any queries about car accidents and help with personal injury claims, contact the Patino Law Office in McAllen at 956-631-3535 today.

What to Do If You’re Involved In a Motorcycle Accident in McAllen TX

Posted on Thursday, September 27th, 2018 at 12:32 pm    

If you are considering owning a motorcycle or already have one, you should keep in mind that motorcycle accidents are prevalent in McAllen and other parts of the world, too. Motorcycle accidents happen when we least expect them although we can utilize defensive driving strategies, these accidents can be catastrophic. Individuals who are involved in motorcycle accidents have a high risk of suffering injuries and fatalities compared to motorists who are in a car, truck or SUV. According to statistics obtained from NHTSA, as many as 80% of all reported motorcycle crashes end in either injury or rider’s death. The accidents can cause brain injuries, neck injuries, and spinal cord injuries.

Brain injuries can cause severe trauma while neck injuries could result in damage to the spinal cord and broken vertebrae. Besides injury to the spine, spinal cord injuries can lead to partial or complete paralysis in worst cases. In case of internal injuries, appropriate medical attention is required because some injuries may be difficult to detect and diagnose without proper checks. Therefore, if you’re considering driving or riding with someone who owns a motorcycle, you need to be well aware of these risks and prepared in case there is an accident.

 

In this article, we’ll discuss several things you need to do if you’re involved in a motorcycle accident.  They are as follows:

1. Check yourself and others injured in the accident 


Immediately after you are involved in an accident, the first thing you need to do is check for injury cases. Once you have made this certain, call 911 as part of your responsibility.

2. Take pictures
Take the earliest to capture images of the accident scene. Use a camera or cell phone to take photos from different angles. While doing so, ensure the accident scene is safe to avoid causing further injury or damage.

3. Move your bike

 

Every precaution possible should be taken to make the scene of the accident safe to other road users, including oncoming traffic. You can do your part by moving your motorcycle off the road.

4. Gather information

 

Get in touch with the police by calling 911 for emergency assistance. An officer will come to the scene and will write a legally binding police report.  Always make sure that you gather all the necessary details regarding the accident. This information should include:
• The contact information of all the witnesses and driver’s at the accident scene
• Name and contact information of the insurance companies of the vehicles involved in the incident
• Vehicle information, including make, model, VIN and license plates
• Name and badge of the officer at the scene

5. Call your insurance agent
You must call your insurance agent immediately after the accident. When discussing the crash and injuries, tell the agent that you will provide comprehensive details about the accident after visiting a doctor in McAllen and a professional auto-mechanic.

Contact Patino Law Office for Immediate Assistance

Riding on an open road has its thrills and risks. Safety should always be your priority whenever you are riding a motorcycle. To avoid motorcycle accidents, you need to exercise caution and good judgment. The safety measures include keeping your speed in check, using your signaling appropriately and riding in your lane. In the event you are involved in a motorcycle accident, a trusted car accident attorney at Patino Law Office can help. The attorneys have handled many personal injury cases and understand the repercussions of being involved in an accident.

The lawyers also know the dynamics of motorcycle crashes and can spot the causes after careful analysis of the medical and police reports along with the damages. Once the Patino Law Office attorney determines who is at fault, they can help you develop a defense or fight for your right to compensation and damages. They can advise you on how to pursue legal action and help you deal with the alternative party and insurance company. Patino Law Office firm serves several cities in Texas, including McAllen, Pharr, Mission, and Edinburg. To get in touch with the Patino Law Office in McAllen, call (956) 631 3535 today to speak directly to an experienced personal injury attorney.

How Bad are Parking Lot Accidents?

Posted on Monday, September 17th, 2018 at 9:37 pm    

Most drivers rarely consider that the humble parking lot is a danger to them or the car, but statistics prove them wrong. It’s perhaps not surprising that 20% of all car accidents happen in parking lots. Let’s face it, cars and other vehicles spend much of their time in these places and negotiating your way in and out of them can be often quite stressful. What seems to happen is that many people are so concerned that they can’t find anywhere to park, that they concentrate on looking for empty spaces far more than looking out for the other vehicles around them as well as pedestrians who just happen to be going to or from their vehicles.

Pedestrians are often the most at risk in a parking lot

As far as pedestrian accidents are concerned it has been estimated that over 50% of what are called ‘back-over’ accidents happen in parking lots. Back-over accidents are typical parking lot type accidents where a driver fails to see a pedestrian passing to the rear of them when they reverse out of a space in the lot. The driver is often far more concerned with avoiding scratching the vehicles to each side, or his / her own vehicle, than considering the possibility that someone might actually be behind them.

The only saving grace of a parking lot accident is that it is likely to happen at a relatively slow speed. This might not help a pedestrian, but it does mean that cars themselves tend to be more damaged while injuries to those in the vehicles involved in the crash are less severe.

Here are some tips for those who regularly use parking lots and wish to avoid an accident.

  • Use a parking space further away from the store or office you intend to visit. It might mean more of a walk, but you are also further away from where the most popular parking spaces are so less likely to get hit.
  • Look for a ‘pull-through’ spot. This is where you can nose through a parking lot space into the next space with your trunk pointing outwards. It means you don’t have to reverse out of the space when you decide to leave.
  • If you are a pedestrian, and presumably nearly everyone who uses a parking lot is going to get out of their car for a period, keep a really good look out for reversing drivers and traffic through the lot in general. Assume that many drivers are not looking out for you as much as you are looking out for them.
  • If you are a driver, exiting from a parking lot, make sure you check behind as much as you check the vehicles on each side. There is no point in making a speedy exit if you end up seriously hurting someone and find that you are the subject of a personal injury claim.
  • Don’t try and reverse into an empty parking space when the lot is crowded. If you see a space that you can fit into, drive into it head-first. Trying to reverse in to an empty space holds up other traffic and accidents happen more frequently when they get frustrated, or you get frustrated and try to edge by.

If injured in a parking lot accident, contact a personal injury attorney

If you have been injured in a parking lot accident, either as a pedestrian or the occupant of a vehicle, you may be entitled to compensation if you were not to blame for the accident. Parking lots often have plenty of potential witnesses around, so you shouldn’t let the opportunity pass if you are injured or your vehicle is hit and damaged.

You will need evidence that the other driver was behaving negligently. For example, the driver may have hit you because he or she was driving too fast, wasn’t looking out, failed to look behind when reversing out of a parking space or was distracted by something.

Personal injury claims can help pay for repairs to your vehicle and medical bills that may have been incurred because you were injured. They can also help to compensate for any lost wages you may have suffered because you could not return to work straight away because of your injuries.

If you are seeking compensation after a parking lot accident in McAllen or San Antonio, contact the Patino Law Office, serving McAllen, Mission, Edinburg & Pharr, Texas, at 956-631-3535.

 

What To Do If You Suspect Nursing Home Negligence In McAllen Texas

Posted on Monday, August 20th, 2018 at 9:55 pm    

As people become older, they become more susceptible to significant physical disabilities, as well as mental illnesses such as dementia and Alzheimer’s Disease. Any of these conditions could necessitate a stay in a nursing home.
Unfortunately, however, there may be occasions where employees of these health facilities neglect to provide adequate services for the aged individuals under their care. The Patino Law Firm is committed to fighting against nursing home negligence. Our professional team of McAllen are knowledgeable about nursing home negligence and are excited to represent your family member. If you suspect nursing home abuse, but you’re not sure if your family member’s case qualifies, keep reading. In this article, we’ll discuss some revealing statistics about nursing home negligence, what constitutes negligence, types of negligence, and how to protect your loved ones. Let’s get started.
Frightening Statistics

 

In the United States, there are more than two million cases of elder abuse each year. This abuse is significant, and it has been estimated that one out of every ten senior-aged individuals has experienced some form of elder abuse in their lifetime. Considering that the population of Americans 75-years-of-age and older is expected to increase by almost 20 percent over the next four decades, this situation is only believed to become an even greater societal concern. Among the more common forms of elder abuse is nursing care facility negligence.  And researchers estimate that the situation is even worst in Texas. They estimate that roughly one-quarter of the State’s 1,200 nursing and rehabilitation facilities have been reprimanded for providing poor or substandard care to the patients these facilities service.

So, if you’re loved one is in a nursing home then, it’s time you become aware of what constitutes nursing home negligence.
Defining Nursing Home Negligence

Nursing home negligence can typically be defined as neglect that occurs in a nursing home setting. This neglect often results from a breach of care whereas abuse involves specific harm. To explain further,

 

Abuse: Abuse can be physical such as through the use of force (punching, kicking, pushing, slapping) to subdue or induce the coercion of a nursing facility patient or using excessive restraint (ropes or chains) to keep a patient immobile. That said, abuse might also be administered through verbal communications like yelling, insulting a senior citizen or making threats against their well-being.
Neglect: Neglect occurs when inpatient care facilities either via deliberate acts of malfeasance or irresponsibility fail to administer the care a specific patient needs. Neglect can occur in a variety of different ways such as through the withholding of food, water, and necessary medications, neglecting to clean the living spaces or bodies of patients who are unable to bathe themselves or by failing to address any existing or newly occurring medical problems the patient may have.
How To Detect Potential Nursing Home Negligence

 

There are numerous signs that you can look for when evaluating your loved ones that are in a nursing home. First, you should evaluate them for manifestations of physical injury like bruises, welts or broken bones, poor hygiene, or dirty living space. You can also evaluate them for a deterioration in the patient’s physical or mental condition and the occurrence of new or unexplained health problems. Significant changes in the patient’s behavior (such as fear of speaking or ultra-sensitivity to touch or physical stimuli) or the nursing home staff displaying a reluctance to allow the patient to speak to family or friends alone is a definite red flag.
Proving Nursing Home Negligence

 

The most important first step is gathering pertinent evidence that could establish a pattern of neglect on the part of the nursing care facility. A patient or their loved ones should maintain a written log of the patient’s illnesses or injuries, take photographs of the patient’s body and living quarters and record oral testimony from the patient or others residing at the facility.
If enough evidence is gathered, the Patino Law Firm might be able to bring forth a lawsuit against the facility in question and attempt to prove that said institution bears responsibility for your loved one’s condition.
In conclusion, if you suspect nursing home negligence, don’t just sit back and let your loved one suffer. Be aware of the signs of nursing home abuse and seek a competent McAllen attorney to represent your negligence case.

 

 

How Thorough Was Your Truck Crash Investigation?

Posted on Monday, August 13th, 2018 at 11:08 pm    

Truck crashes are typically the worst types of accidents on Texas highways. The sheer size of most trucks and the speed they are routinely traveling at when a crash takes place has a severe effect on survival capacity and the likelihood of serious injury. The impact of a serious truck crash on smaller vehicles and their occupants is disproportional to the corresponding impact on the truck and truck driver. It is almost always the occupants of smaller vehicles that suffer far more than the driver of the truck.

In any aftermath of a truck crash, there are going to be questions about the cause of the crash and who or what was responsible. Where negligence is involved, the possibility of the victims of the crash seeking compensation is likely to be high. Compensation is not always easy to obtain as it depends on being able to prove that the injured parties were victims of negligence.

There are several ways that negligence can be established after a serious truck crash, assuming that the injured party or parties are the occupants of a smaller vehicle, while the at-fault party is the truck driver or the truck company that employs this driver.

Evidence includes:

  • Eye witness reports;
  • Police accident reports;
  • Photographic evidence;
  • Crash investigation reports;
  • Driver testing for blood alcohol content or drugs;
  • Driver log records;
  • Truck maintenance and truck condition reports.

This might sound a lot of work, but if there are thousands, possibly tens of thousands of dollars of damage requested in compensation, the thoroughness of the evidence that can be collected shouldn’t be taken lightly.

Crash investigations must be professional and unbiased

Some truck crash victims fail to realize just how important truck crash investigations are when it comes to providing evidence for a personal injury claim. The investigation is often left to the police officers at the scene of the crash, or worse, the trucking company itself. In the aftermath of any serious truck crash, where a truck company is potentially liable for a huge damage claim, the temptation to visit the scene of the crash as soon as possible is very high. There have been many reports in the past of tampering by truck crash ‘experts’ of important evidence that could possibly implicate the company or its employee. Vital evidence can be removed before it can be noted by more impartial investigators.

Police crash investigators are not necessarily very useful as far as providing evidence about negligence either. Police officers are trained to investigate crimes and do not necessarily have the training, tools or expertise to investigate the reasons for a crash. They are primarily interested in finding out whether a crime has been committed and then clearing the highway to allow the free flow of traffic. Police officers may even rely on ‘experts’ provided by the trucking company, who are likely to be soonest at the scene to help them ascertain what happened.

The best solution is for injured victims seeking compensation to arrange for a personal injury attorney to organize an investigation of the truck scene, the truck itself and truck company records. Most of this work won’t be done by the attorney, but with the help of technical experts brought into make as thorough investigation as possible. It makes sense that the sooner this is done, the better, as crucial evidence will be removed for ever once a crash scene is cleared.

If you have been involved in a truck crash anywhere in the vicinity of McAllen or neighboring region, contact a truck crash attorney at the Patino Law Firm as soon as possible.

Your chance of winning a personal injury claim is increased significantly by using our McAllen truck accident experience to provide advice, organize an efficient crash investigation and negotiate skillfully on your behalf with the truck company and its insurer. Contact the Patino Law Firm, serving McAllen, Mission, Edinburg & Pharr, Texas at 956-631-3535.

 

What Can I Do After a Hit and Run Accident?

Posted on Friday, July 13th, 2018 at 10:50 pm    

Anyone who is involved in a car crash in Texas in which someone has been injured, or died or even when only property has been damaged has an obligation to stop and provide information as well as render assistance where necessary and inform the police. If someone leaves the scene of the crash without doing any of these things it is referred to as a ‘hit and run’ accident.

There are severe penalties for anyone who is convicted of a hit and run offense, but this doesn’t necessarily help the victim of such an accident. What can you do if you are the victim of a hit and run accident and find that you have a damaged car, or a total write off and you yourself are injured badly into the bargain?

Hit and run accidents are on the rise

Hit and run accidents have increased across the U.S. in recent years and there is no evidence that Texas is immune from the national trend. The number of hit and run accidents has increased by 62% nationwide in the last decade. In 2016, over 2,000 fatalities were documented as a result of hit and run accidents. There are more than 600,000 of these accidents every year. Most victims are pedestrians and bicyclists, but that doesn’t mean that you cannot be hurt if you are in your own car.

Claiming compensation if the hit and run driver is found

If the hit and run driver is found, there is the chance that legal action can be taken to recover damages, even if the driver is charged separately by police with a ‘fleeing from the scene’ offense, which in Texas is a felony. Just because the driver has been located this doesn’t mean that you can automatically file a personal injury claim against him or her. As in any personal injury claim, you must still prove that the person caused property damage and / or injuries as a result of the accident. The driver must also have sufficient insurance to cover the amount you are claiming. Unfortunately, in many cases, a hit and run driver may not have any insurance at all and may not even be licensed to drive.

Assuming that the driver does in fact have insurance, you should file the damages claim with the driver’s insurance provider. If the police have charged the person with fleeing from the scene, then your chances of successfully obtaining compensation are likely to be higher.

Compensation may be claimed for:

  • medical treatment;
  • repair or the cost of replacement of your vehicle;
  • loss of earnings as a result of the accident;
  • pain and suffering caused;
  • punitive damages (normally reserved for cases where particular negligence can be proven: hit and run accidents could be considered definitely negligent).

Compensation when the hit and run driver is uninsured or underinsured or never located

In the quite possible situation where the hit and run driver either has no insurance or is underinsured, the only definite compensation that might be available is if you had taken out uninsured/underinsured motorist insurance with your own provider. This is quite commonly done in any case, especially as crashes involving these sorts of drivers are increasing. However, not all drivers realize that they actually have this type of cover.

It is also possible that the driver, despite having no insurance, has other substantial recoverable assets which can be used to pay compensation should you win a personal injury claim against him or her. It is unlikely that this would be an easy task without the help of an experienced McAllen car accident attorney.

You will also have little other recourse to compensation apart from your own medical insurance if the hit and run driver is never located. If any of these cases describes what has happened to you, you should contact the Patino Law Office in McAllen to discuss your legal options. Call (956) 631-3535 today.

Can I Sue if I Get Whiplash After an Accident?

Posted on Monday, June 18th, 2018 at 8:09 pm    

Whiplash is one of the most common non-life threatening injuries caused by a vehicle accident. It is typically an injury that is caused by an abrupt rear-end or head-on crash. One of the features of whiplash is that symptoms may not surface for several days after the actual accident and some people who find that they are suffering from whiplash symptoms may not know that it is not too late for them to sue the driver who hit them.

Causes of whiplash

Whiplash is typically an injury that affects the ligaments, joints and muscles of the neck and upper back. The name comes from the way in which the injury is caused. When a vehicle, especially a smaller vehicle, is hit from the rear, the occupants’ heads are jerked forwards suddenly as a result of inertia. The sudden forward jerking is swiftly followed by a backwards movement. A head-on collision will reverse the direction of the movements, but the end result is similar. It may also be worth noting here that head-on collisions can often be far worse than rear end collisions because of the relative speeds of the two vehicles colliding. That means that whiplash after a head-on collision may be only one of a number of other potentially more serious injuries, while it may be the major injury in a rear end collision.

The actual muscles, ligaments and joints undergo extreme degrees of strain and this puts a lot of stress on these organs and tissues. Sprain and strain injuries of this type are often eventually very painful without medication and treatment because it is almost impossible to keep the neck completely still. It can sometimes feel that every movement of the body exacerbates the pain.

Diagnosis of whiplash

Personal injury attorneys always recommend getting yourself checked by a doctor after any kind of car accident, even if you don’t think you have been injured. Whiplash, as an injury, may not reveal the damage that has been done to your neck until well after the actual accident. Sometimes, the shock of the accident and concern and confusion over the damage to your vehicle and what might have happened can obscure the symptoms.

You should certainly see a doctor if you experience any of the following symptoms after a rear end or head on crash:

  • neck, upper back, arm or shoulder pain;
  • swelling of the neck muscles;
  • dizziness;
  • nausea;
  • difficulty in focusing;
  • headaches;
  • vertigo;
  • muscle spasms.

If the doctor is concerned and suspects whiplash, or more serious damage to your joints, such as a herniated disc, or nerves, he or she will recommend further tests. This may include CT scans, MRI scans, x-rays and EMG / neurological analysis to eliminate the possibility of anything more serious than whiplash itself. This all costs money, of course.

Treatment for whiplash

When whiplash is diagnosed early on and a treatment program devised, it is likely that there will be a full recovery. The length of time for recovery to take place depends on the initial severity of the impact and individual circumstances. In a small number of cases, the condition may become chronic and last for several months, but usually it lasts for days or weeks, not months. While being treated, the pain may prevent the person from going back to work normally and this may be a reason, besides the cost of treatment, for seeking compensation through a personal injury lawsuit.

Typical treatment for whiplash includes injections, medication and physical therapy. Surgery is very rarely needed for whiplash. Injections are usually used to reduce inflammation and pain; medication is mostly of painkillers while pain persists; physical therapy is used to restore spinal posture and the range of motion by the injured party’s neck and upper back.

Suing a driver who has caused you to suffer whiplash

Texas personal injury laws allow you to file a personal injury lawsuit within three years of an injury caused by a negligent driver. However, because all personal injury claims depend on clear evidence of negligence to be proven for their success, the sooner you initiate a claim the better, as evidence of negligence will be easier to find. Whatever the circumstances, don’t hesitate after a rear end or head-on collision anywhere around or in McAllen. Make an appointment with a car accident attorney at the Patino Law Firm in McAllen, TX by ringing 956-631-3535.

 

Can You Claim Damages if You Weren’t Wearing a Seat Belt?

Posted on Sunday, May 27th, 2018 at 1:40 pm    

Texas negligence rules are based on a concept of ‘modified comparative fault.’ This means that if it is determined that you “contributed” to your injuries because you were in some way negligent when an accident took place the amount of compensation you can claim is reduced in proportion to your perceived degree of fault. Additionally, if it is determined that you were more than 50% to blame for the accident, even 51%, then you cannot obtain any compensation at all.

How modified comparative fault affects a claim when you were not wearing a seat belt

The significance of comparative modified fault becomes obvious if you were hurt in a car accident when someone slammed into you, but you weren’t wearing a seat belt. The other driver may have been obviously at fault, but it is decided that you share some of the blame for the injuries you have received. Let’s say you decide that the total amount of damages you should receive was $20,000 for medical treatment, lost earnings and the pain and suffering caused. However, the case goes to court and the judge decides that the fact that you were not wearing a seat belt diminished your claim by 20%. This means that the maximum you would obtain would be $16,000 ($20,000 – 20% of $20,000).

Shared negligence is a gray area for insurance purposes

If you have been injured in a vehicle accident, the natural tendency is to believe that you were not to blame for the accident, but it is quite possible that both you and the other driver were partly to blame for the accident. Imagine, for instance that you were driving along a highway in heavy traffic. Another vehicle was following, a bit too close for comfort. You decide to pass a vehicle in front of you, but fail to signal. Just at that point, the following vehicle decides to accelerate and overtake your vehicle. The vehicle crashes into the rear end of your car. Both cars are seriously damaged and both you and the other driver are quite seriously injured requiring hospitalization and subsequent surgery. Who was at fault and how much could you claim?

In practice, this would be a difficult situation to resolve as there is a question of shared negligence. The final resolution would come down to a detailed analysis of what happened immediately before the crash. Under Texas law, one of the two drivers is not going to receive any compensation at all, because he or she would have been judged to have been more than 50% at fault, while the other driver’s compensation would be limited to somewhere between 51% and 100% of the claim.

Contact a personal injury attorney if there is a hint of shared negligence.

Any hint of shared negligence means that you would be under pressure at the very least from the other driver’s insurance adjuster if you decide to file a claim. Insurance companies hate to concede that their clients were at fault and hate paying compensation. The upshot is that they will try and pin the blame, or at least some of it, on you, the plaintiff in an attempt to reduce their liability. The solution is to get legal help rather than try and negotiate your claim all by yourself. Experienced personal injury attorneys like ours at the Patino Law Firm in McAllen are used to assessing cases of shared negligence and will seek to minimize your share of the blame.

As for wearing a seat belt, it only makes sense. It is Texas law to wear a seat belt and you can be fined if you are not wearing one. It can save your life or at least minimize serious injury if you have an accident. If you are hit by a negligent driver and are not wearing your seat belt at the time, there is a chance that you will have to bear the financial cost of medical treatment, damage to your vehicle and possibly lose your job or your right to obtain compensation is challenged because of an interpretation of modified comparative negligence.

Who Is at Fault in an ATV Accident?

Posted on Saturday, April 28th, 2018 at 1:07 am    

All Terrain Vehicles (ATVs) and Off Highway Vehicles (OHVs) are popular for recreational use and on farms. In most states, they are not allowed to be used on public roads and are designed to be used off formed roads and highways. They can be a lot of fun when driven with regard to safety, but unfortunately accidents are common and many injuries prove to be fatal. The ATV injury rate is sitting at over 120,000 a year across the country. Many of those who are injured or killed are children. The fact that most ATVs stick to off road use makes it tempting for farmers and landowners to allow kids to use the vehicles as well as tempting for kids themselves. ATV drivers are encouraged to use helmets, but this is not often done. Like motorcycles, the ATV seat is straddled, which means that there is no safety belt to protect the driver or passenger.

Liability in an ATV accident

There are several different scenarios when considering an ATV accident:

  • The ATV driver is injured in a solo incident, i.e. no other vehicle was involved;
  • The ATV passenger was injured;
  • Another person, not in the ATV, was injured;
  • The occupants of the ATV were injured because they were hit by another vehicle.

Proving liability in an ATV accident can be problematic. The accident may happen in a remote area, or at least out of sight of anyone else, so the possibility that there were eye witnesses is reduced. The ATV driver and passenger may, or may not, have had training, safety protection, or even permission to use the vehicle in the first place. There may be defects in the vehicle or the helmet may have been faulty. All of these considerations must be taken into account in an ATV accident. If you, or a member of your family, such as your child, has been injured in an ATV accident, you should talk to a personal injury attorney to discuss your legal options before filing a claim.

ATV driver is injured

If the ATV driver was injured in a crash which didn’t involve another vehicle, then it is quite possible that there is no-one else to blame but the driver. However, there are other scenarios which might make a personal injury claim a valid option. The main scenarios include vehicle defects, helmet defects and lack of maintenance of a designated off road vehicle track. As with any personal injury claim, if there is a product liability issue, then there must be proof that a vehicle was inherently unsafe, e.g. its brakes or steering faulty, the helmet was inherently unsafe, e.g.it cracked or collapsed on impact with the ground.

An accident that happened on a designated ATV track, for example, one provided by a private company, may be blamed at least partly on the owner of the track if it can be proven that it lacked routine maintenance.

ATV passenger is injured

If the passenger is injured, he or she may be able to prove that the injuries were caused by the actions of the driver, e.g. the driver failed to anticipate the conditions, was drunk at the time, was untrained etc.

ATV occupants injured by another driver

If the ATV was hit by another off road vehicle, such as another TV, an SUV, or a farm vehicle that was negligently driven, then the injured victims may have legitimate reason for pursuing a personal injury claim against the other driver. Because of Texas comparative negligence rules, the ATV driver’s contribution to the accident must be less than 50% to enable any compensation to be obtained at all.

ATV driver is injured and had permission to drive from parents

An interesting case in Florida recently involved a young girl who was killed after using an ATV for the first time. The family argued that the accident could be blamed partly on the boy who had given the girl permission to use the ATV knowing she had had no experience of driving one before and the boy’s parents, who had allowed their son to use the ATV without supervision despite clear warnings by the ATV seller and manufacturer that it should not be used by anyone under 16 (the boy was 12). The case has not been decided at the time this blog was written, but it does present an interesting legal question.

ATV accidents are often tragic, and it can be hard to know exactly who or what was to blame. If you, or a family member, have been injured in an ATV accident in or around McAllen, or the surrounding area, you should contact an experienced ATV accident attorney at the Patino Law Firm. Call 956-631-3535 today.