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Mental Anguish - What must be shown?

Mar 11, 2014 — by Jeff Mundy
Tags: Personal Injury


Texas has authorized recovery of mental anguish damages in virtually all types of personal injury actions.  Mental anguish may be recovered from such emotions as "grief, severe disappointment, indignation, wounded pride, shame, despair, or public humiliation." Evidence of mental anguish may be presented by the plaintiff, third parties, or experts.  It is within the province of the jury to determine the amount of a plaintiff's pain and suffering.  In personal injury cases in particular a jury may exercises considerable discretion and generosity in awarding damages. Credit to my colleague Ed Hensley.


Alien Tort Statute - Tortious Conduct in Foreign Country

Apr 22, 2013 — by Jeff Mundy
Tags: Personal Injury

The [Alien Tort] statute provides district courts with jurisdiction to hear certain claims, but does not expressly provide any causes of action... The grant of juris­diction is instead "best read as having been enacted on the understanding that the common law would provide a cause of action for [a] modest number of international law violations."  We thus held that federal courts may "recognize private claims [for such violations] under federal common law."  The Court in Sosa rejected the plaintiff's claim in that case for "arbitrary arrest and detention," on the ground that it failed to state a violation of the law of nations with the requisite "definite content and acceptance among civilized nations." 


Reglan Appellate Opinion

Apr 22, 2013 — by Jeff Mundy
Tags: Personal Injury

 To avoid liability, the manufacturer must take affirmative steps to alert consumers, doctors, or pharmacists of changes in the drug label. Because the duty of sameness prohibits the generic manufacturers from taking such action unilaterally, they are dependent on brand-names taking the lead. Id. at 2576 ("[I]f generic drug manufacturers, but not the brand-name manufacturer, sent [additional warnings such as a 'Dear Doctor' letters], that would inaccurately imply a therapeutic difference between the brand and generic drugs and thus could be impermissibly 'misleading.'"). Under federal law, the inquiry is whether the brand-name manufacturers sent out a warning, not whether the proposed warning to be disseminated contains substantially similar information as the label. Because no brand-name manufacturer sent a warning based on the 2004 label change, the generic manufacturers were not at liberty to do so. 


Military Personal Injury Law

Mar 17, 2013 — by Jeff Mundy
Tags: Personal Injury

Originally, the FTCA afforded tort victims a remedy against the United States, but did not preclude lawsuits against individual tortfeasors. Judgment against the United States in an FTCA action would bar a subsequent action against the federal employee whose conduct gave rise to the claim, 28 U. S. C. §2676, but plaintiffs were not obliged to proceed exclusively against the Government. They could sue as sole or joint defendants federal employees alleged to have acted tortiously in the course of performing their official duties.


Vicarious Liability & Negligent Undertaking

Mar 7, 2013 — by Jeff Mundy
Tags: Personal Injury

Under the doctrine of respondeat superior, an employer may be vicariously liable for the negligence of its agent or employee who was acting within the scope of employment even though the employer did not personally commit a wrong. But a person or entity that hires an independent contractor is generally not vicariously liable for the tort or negligence of that person.  The right of control is the "supreme test" for determining whether a master-servant relationship exists. 

Texas law generally imposes no duty to take action to prevent harm to others absent certain special relationships or circumstances. However, one who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other's person or property will not be injured thereby. 

An employer has a duty to adequately hire, train, and supervise employees.


"Leased" Worker Not Barred by Worker's Comp

Jan 6, 2013 — by Jeff Mundy
Tags: Personal Injury

If an employee is covered by workers' compensation insurance, suits against their employer are barred by workers' compensation law.

However, the increasingly common practice of "leasing" workers complicates the analysis.  A leased worker's claim may not be barred unless certain criteria are met.


Firework Seller Liability & Indemnity from Chinese Manufacturer

Nov 26, 2012 — by Jeff Mundy
Tags: Personal Injury

A Texas fireworks vendor was not allowed to join a Chinese manufacturer of an allegedly defective firework component to the case of the person injured by an allegedly defective firework launcher tube.  

The court held that the seller of the allegedly defective firework launcher tube could bring a separate action for indemnity from the manufacturer after, and if, the vendor is found liable to the injured person who lost their eye when the tube broke and sent a fragment into the person's eye.

 


Product Liability & Negligence Law

Nov 24, 2012 — by Jeff Mundy
Tags: Personal Injury

Plaintiff was injured when a tire on his dump truck blew out.  The defendant supplied and installed retreaded tires, despite instructions by the truck owner not to use retreads.

The Houston Court of Appeals, one of the most conservative in the state, held that the driver did not prove that the blow out was due to the use of the retread, despite the truck owner's instructions.

The court provided a summary of the basic rules of law, and then found that the driver did not provide evidence required to meet the law.


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