What Is Assumption of Risk in a Personal Injury Case?

Monday, January 25, 2021

Assumption of risk is a defense that could be used against you if you bring a cause of action for a personal injury in Texas. In your attempt to hold someone responsible for causing your injury, the defendant may allege that you assumed the risks of the activity – thus protecting the defendant from liability. If this defense succeeds, you may not be awarded anything in financial compensation. This is why it is important to speak to a lawyer if you think this defense will be raised during your case.

What Does Assumption of Risk Mean in Law?

In the civil justice system, assumption of risk is an affirmative defense. A defendant can raise this defense to combat a personal injury cause of action. The assumption of risk defense asserts that the defendant is not liable for the injuries sustained because the plaintiff knowingly and voluntarily exposed him or herself to this risk.

Essentially, a defendant who uses the assumption of risk defense is claiming that the plaintiff knew about the risk or hazard that caused the injury but voluntarily took the chance of getting injured anyway. Therefore, the defendant believes he or she should not be responsible for related losses.

This defense is most common in cases involving dangerous activities, such as bungee jumping or cliff jumping. It can also be used in premises liability cases if a defendant had a “No Trespassing” or “Beware of Dog” sign in place. Places that offer experiences with some level of risk may also use this defense, such as gyms, amusement parks and sports arenas in San Antonio.

How Can Someone Prove Assumption of Risk?

It is the defendant’s responsibility to prove the validity of the assumption of risk defense when asserted. The defendant will have the burden to prove, through clear and convincing evidence, that two main elements are more likely to be true than not true.

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

If the plaintiff signed a written contract expressly agreeing to the known risks of an activity, this could serve as proof of assumption of risk. Proof could also come in the form of a participant purchasing a ticket if the ticket doubled as a liability agreement. This is often the case with cruise ship and sports game tickets. With a signed liability waiver in place, a defendant may not be liable for damages even if he or she was negligent.

How Might the Assumption of Risk Defense Affect Your Case?

If you signed a liability waiver before participating in the activity that injured you, don’t assume you are barred from financial recovery. Although this can protect a defendant from liability, there are exceptions to the rule.

If the defendant committed an act of gross negligence, recklessness or intentional wrongdoing, signing a waiver will not release the defendant from liability for losses. If the defendant failed to adequately make the risks of an activity known to you when you signed, this could also invalidate a liability waiver.

How an assumption of risk defense may or may not affect your personal injury case depends on your unique circumstances. It is important to consult with an attorney if you encounter this defense or were injured after signing a liability waiver. An attorney can help you protect your rights with or without the assumption of risk defense.

Posted by admin at 12:33 pm

What Are Future Damages in a Personal Injury Case?

Friday, January 22, 2021

Through the civil justice system in Texas, you can receive financial compensation from the person or party that committed a wrong (tort) against you. In legalese, this compensation is known as damages. A civil claim not only has the power to reimburse you for past damages; you could also recover compensation for future damages. Learn more about future damages available in a personal injury case by consulting with an attorney.

Economic vs. Noneconomic Damages

First, understand the difference between the two main categories of damages available: economic and noneconomic. Economic damages pay for your out-of-pocket costs as the victim of a tort. These costs may include hospital bills, lost wages, property repairs and attorney’s fees.

Noneconomic damages are the intangible effects an accident had on you and your loved ones. Another name for noneconomic damages is pain and suffering. Compensatory losses in this category may include emotional distress, mental anguish, physical pain, inconvenience, humiliation, lost quality of life and loss of consortium.

During a personal injury case in Texas, you could be eligible for future damages for economic and noneconomic losses. Your eligibility for future damages will depend on the extent of your injuries and how long they will foreseeably stay with you. Future damages are only available if you will experience losses connected to the accident in the foreseeable future.

What Are Future Damages?

Past and present damages are clear at the time a claimant files a personal injury claim. As an injured victim, you will have medical bills and lost wages piling up to prove these losses. Future damages, however, are less clear. They will depend on when your injury will fully heal – if it will fully heal at all.

You may be able to seek compensation for future damages during a claim if your injuries will, with some level of medical probability, stay with you or get worse in the future. Future damages can include:

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

You can only recover compensation for future damages in Texas if you or your personal injury attorney can successfully prove they will exist. Your lawyer can help you prove future losses using evidence such as your medical records, testimony from your doctor and medical experts, testimony from friends and family members, and information from your employer about the requirements of your job.

Why It Is Important to Seek Future Damages in a Lawsuit

Once you close a personal injury case by accepting a settlement and signing a release of liability form, you cannot reopen it. Even if your injuries worsen or you encounter additional medical costs, you will not be able to reopen a case and negotiate for a higher amount. This is why it is imperative to seek future damages in your original lawsuit – before you miss the opportunity to recover these damages forever.

If you need assistance listing all past and future damages on an insurance demand letter or personal injury lawsuit in San Antonio, contact an attorney. An attorney can make sure you do not miss any important opportunities for recovering financial compensation, including future damages. A lawyer will ensure you do not settle for less than the full and true value of your claim.

Posted by admin at 12:32 pm

How Long Does an Insurance Company Have to Settle a Claim?

Wednesday, January 20, 2021

In the aftermath of a car accident in San Antonio, you could be dealing with many expenses. You may have serious injuries that require thousands of dollars in medical care, as well as the costs of repairing damaged property and making up lost wages. If you are curious as to when you might receive a settlement check from an insurance company, look at the average timeline of a claim in Texas.

1-2 Days: You File a Claim

After an accident, you should initiate the insurance process right away. Some insurance companies have deadlines to file, such as 72 hours after the accident, while others simply request that claimants file as soon as possible. Aim to file your initial claim within one to two days after the accident. Then, focus on getting medical care and following your doctor’s treatment plan while you wait for a response.

15 Days: The Insurance Company Responds

An insurance company will have no longer than 15 days from the date of receiving notice of a claim to acknowledge its receipt in writing and commence an investigation, according to Texas Insurance Code Section 542.055. at that time, the insurance company will also be required to request all statements, records and forms it believes it will need from the claimant.

15 to 45 Days: Insurance Investigation and Decision

The insurance company’s investigation of your accident and the losses you are claiming is typically the longest part of the insurance process. Under Texas Insurance Code Section 542.056, an insurance company has no more than 15 days after it has received all items and statements required to notify the claimant in writing of claim acceptance or rejection. If your claim involves possible arson, the insurance company has 30 days to make its decision.

If the insurance company has a valid reason why it cannot accept or reject a claim by the deadline, it must notify the claimant that it needs additional time and explain the reason. In this scenario, the insurance company will have no more than 45 days from the date it notifies the claimant to accept or reject the claim.

5 Days: The Insurer Releases a Check

If the insurance company accepts your claim, it must release payment of the claim within five business days of notifying you of the acceptance and receiving your signature on the liability release form. Upon the release of the check, expect your payment by mail within no more than two weeks.

Note: Timelines Vary

All in all, the insurance process can take anywhere from one to three months or longer to complete in Texas. If your claim does not encounter any complications, expect your settlement check within about one month of filing a claim. If, however, your case involves liability disputes, catastrophic injuries or injuries with lengthy recovery times, expect it to take longer.

Although it is not common, you may need to take your personal injury case all the way to court for a fair result in San Antonio. This might be the case if the insurance company in charge of your claim is denying liability or refusing to offer a satisfactory settlement.

If you need to file a personal injury lawsuit, the legal process could take significantly longer than an insurance settlement. A lawsuit can take one year or longer to resolve in Texas. Your exact timeline will depend on several factors, including how soon you can get a court date in your jurisdiction and whether you and the defendant settle the case before it goes to trial.

For more information about the insurance process in Texas, including how long your settlement might take, consult with an attorney. Hiring an attorney may enable you to speed up the settlement process, as your lawyer will know how to communicate and negotiate with an insurance claims adjuster. A lawyer can also represent you during an injury trial in San Antonio, if necessary.

Posted by admin at 12:30 pm

How Much Is My San Antonio Personal Injury Claim Worth?

Monday, January 18, 2021

You may not have to pay for your medical bills and other losses out of pocket if you did not cause your accident or injury. In San Antonio, you have the right to pursue financial compensation from the person who did cause your accident using a personal injury claim.

One of the most frequently asked questions in personal injury law is, “How much is my claim worth in San Antonio?” The only way to get an accurate answer to this question is by asking an attorney. However, you can get an idea of the value of your claim by understanding how the Texas courts calculate damage awards.

What Damages Are Available?

The word damages in personal injury law refers to the financial compensation available for an injured victim’s losses. The point of a personal injury lawsuit is to make the victim whole again through financial compensation. When discussing damages with your lawyer, you will be referring to the money you may be able to receive from the at-fault party (defendant) through an insurance claim or personal injury lawsuit. In Texas, you could recover compensation for several types of economic and noneconomic losses.

  • Medical expenses
  • Disability-related costs
  • Lost wages
  • Property damage
  • Pain and suffering
  • Legal fees
  • Travel costs
  • Out-of-pocket expenses
  • Punitive damages

These are some examples of damages that could be available to you as an injured accident victim in San Antonio. This does not, however, mean that you will be eligible for all of these categories of losses; you will only receive compensation for the actual losses you suffered in the accident.

It will be up to you to prove the losses you experienced due to a defendant’s negligence. You or your lawyer will need to show an insurance company, judge or jury that you suffered these losses using evidence such as medical bills, receipts, pay stubs and medical expert testimony. Without evidence of your losses, you may not receive fair financial compensation.

How Do the Courts Calculate Damage Awards?

Once you have a comprehensive list of the losses for which you are seeking compensation, you can gain an idea of how much your claim might be worth by calculating an award using the same techniques that will be used by the courts. A lawyer can help you with your calculation to make sure you ask for enough money in your insurance demand letter.

  • Economic damages. The courts calculate economic damages by adding up the actual expenses related to your accident, such as health care costs and lost wages. They will also take into account any future economic damages connected to a long-term injury.
  • Noneconomic damages. The value of noneconomic damages is entirely up to a jury. However, the jury may use a common calculation method, such as multiplying the total amount of economic damages by a number that represents the severity of your injuries.

It is impossible to accurately predict how much you will receive for a claim in Texas, as a lot of it is up to a jury’s discretion. Every client is unique, and awards are given on a case-by-case basis. The best way to obtain an accurate estimate is by asking an attorney for an estimate.

What Factors Can Affect Your Settlement?

An attorney in San Antonio can help you understand the potential value of your personal injury claim by analyzing common factors that affect payouts, such as:

  • Injury severity and extent
  • The length of time it will take you to recover
  • Whether your injury interferes with your ability to work
  • Your income before the accident
  • Your age and overall health
  • Physical pain and emotional distress
  • Liability for your injuries
  • The amount of insurance coverage available
  • Your comparative fault for the accident

With these facts in mind, your lawyer can give you a case estimate that comes close to the amount you actually receive, if any. An attorney will have the legal experience necessary to make this analysis. Consult with an attorney today for more information.

Posted by admin at 12:24 pm