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 Do Cruise Ship Injuries Work?

Thursday, January 21, 2021

Suffering an injury in a place you are familiar with is confusing and stressful enough for the average person. When you sustain an injury on a cruise ship, in a foreign country or out on the open water, you may not know where to turn for assistance. Understanding the basic legal remedies and rights of cruise ship passengers can help you learn your own options if you’ve suffered an injury on a cruise. Always consult with an attorney for professional advice concerning your case.

About Maritime Law

Injuries and accidents on common carriers such as cruise ships go through a much different process than injury claims on land. Land injuries go through tort law, while cruise ship injuries abide by maritime law. Maritime law is a distinct legal area that governs injuries and offenses concerning maritime activities, or those involving ships. Maritime law stipulates that a common carrier must use the highest degree of care during passenger transport. Common carriers are individuals or companies that transport people (or goods) on regular routes at set rates.

Since most cruise ships have registrations in countries such as the Bahamas or Panama instead of the United States, maritime law rules. Maritime law holds carriers liable for cruise ship accidents and injuries if the plaintiff can show that the ship’s operator knew or reasonably should have known about an unsafe condition, like land negligence cases. The defendant must have failed to exercise due care in some way to face liability for a cruise ship injury. The courts will also hold the operator of the ship liable for the negligent actions of crewmembers or ship employees in cruise ship injury cases.

Cruise Ship Tickets and Ship Operator Liability

On the back or bottom of your cruise ship ticket, you’ll find a legal contract. Most of what you need to know regarding your ship operator’s liability is on this contract. Your purchase of the ticket is your way of agreeing to the terms and policies outlined in the contract. The back of the ticket will list where you may file a lawsuit for a cruise ship injury – typically the state where the cruise line has its headquarters.

While it may be inconvenient for you to have to file your lawsuit in a state other than where you live, most courts uphold this clause. The contract will also state the time limits for filing, which may be different than the statute of limitations for personal injuries in your filing state. Take your cruise ship ticket to an attorney to learn more about the individual contract to which you consented. It’s always a wise idea to read the back of your cruise ship ticket and understand ship operator liabilities before boarding.

When Can You Sue for Cruise Ship Injuries?

If you suffered an injury or illness on a cruise ship, you may not know your rights as far as whether you may sue the cruise line, ship operator, or third party. Like land injuries, maritime injuries must take certain forms for the courts to consider them the results of negligence. Cruise ship injuries that may constitute personal injury cases include:

  • Slips and falls due to dangerous premises (please contact our slip and fall lawyers in San Antonio
  • Elevator and escalator injuries
  • Illness due to unsanitary conditions or food poisoning
  • Injury from a negligent tour guide in a foreign country
  • Port-related accidents
  • Assaults or attacks on board the ship
  • Pool/waterslide related injuries
  • Theft and negligent security
  • Medical negligence
  • Wrongful death

There are many types of cruise ship injuries and personal losses that may give you grounds for a personal injury lawsuit. Contact a personal injury attorney near you to find out more about your case, cruise ship ticket contract, and rights by law.

Posted by admin at 9:34 pm

How Do Automakers Detect Defectives and Initiate Recalls?

Wednesday, January 13, 2021

When you get a notice from your car manufacturer or hear about another recall on the news, you probably just feel inconvenienced. Now you have to go to the shop and get a repair you didn’t even know you needed. Have you ever wondered how those recalls start? Did someone have a problem and complain or did the manufacturer find it?

When Do Manufacturers Issue Recalls?

The National Highway Traffic Safety Administration (NHTSA) has the authority to develop and enforce standards for vehicle safety to help ensure manufacturers find and correct defects before an accident or injury occurs. Manufacturers are required to recall a vehicle when parts in a vehicle don’t meet the requirements set forth in the Federal Motor Vehicle Safety Standard and when they discover a defect that could threaten consumer safety. The federal standards ensure that parts, including brakes, airbags, and seatbelts, are created with quality and consumer protection in mind. It keeps companies from taking shortcuts and issuing vehicles with inconsistent, partial quality.

Safety defects, on the other hand, occur anytime a manufacturer realizes a vehicle component presents a real risk to consumer wellbeing. Anything that could cause harm, such as the Takata airbag recall, falls under the category of a safety defect.

How Manufacturers Find Out About Defects

Vehicles have a number of separate components, and manufacturers are responsible for adhering to industry standards. That does not always prevent the occurrence of defects, however. Finding defects and initiating recalls happens in a number of different ways, including thorough manufacturer quality assurance testing and consumer discovery:

  • Consumer reporting. Anyone who discovers a defect in a vehicle can contact the Vehicle Safety Hotline, which alerts the NHTSA to the problem via phone, at 1.888.327.4236 or online at safercar.gov. Consumer reports often launch investigations that uncover defects in parts. The NHTSA may not investigate an isolated defect occurrence, but they’ll look into problems that could affect multiple vehicles or parts installed in numerous vehicles.
  • Quality assurance testing. Each vehicle manufacturer has its own set of standards when it comes to maintaining compliance with federal standards and creating safe vehicles for sale. Manufacturers have an incentive to find and eradicate defects early on to prevent injury, lawsuits, and loss of consumer trust, so they often initiate recalls on their own.
  • Compliance testing. Federal regulators conduct routine testing to guarantee auto manufacturers maintain federal standards. In some cases, these tests uncover previously undetected defects that warrant a recall.

Discovered defects may only affect a small number of vehicles, causing a small recall. On the other hand, they could affect thousands of vehicles across many brands if the manufacturers use the same parts.

Consumer Responsibility

The automaker is required to send vehicle owners notice of any recalls that may affect their vehicles. Consumers can also go online to the automaker website or safercar.gov to input a VIN number and look up recalls. You can find your vehicle’s VIN number by looking into the windshield on the driver’s side of the vehicle from the outside. The vehicle may also have the number printed inside the driver’s side door where it latches.

Automakers should make every reasonable effort to get in touch with those a recall might affect. However, used vehicle sales and a lack of current customer information mean some vehicle owners may never discover the recall. Depending on the situation, a publicized recall isn’t enough to protect a vehicle manufacturer from a lawsuit.

If you can prove you didn’t know and couldn’t have reasonably known about the recall, any adverse effects you or a loved one suffered may offer grounds for a lawsuit. Contact the Law Firm of Aaron A. Herbert for more information about recall cases in and around San Antonio.

Posted by admin at 1:37 pm