Law Office of Scott A. Nelson, P.C.

Persons working on construction projects suffer injury rates which are are on the average much higher than other injuries which occur on the job. There are many causes for construction accidents, including:

1. Insufficient worker training;

2. Unsafe equipment;

3. Broken equipment;

4. Dangerous working conditions; and

5. Improper supervision

Of course, with all of the new construction projects in the world today which use more sophisticated and more dangerous construction situations, such as modern high-rises, hotels and office buildings, there will be more catastrophic accidents.

Personal injury lawyers need to understand the dynamics of a construction site and how catastrophic accidents can occur. It is certainly true that a construction site can never be completely safe and accident proof, even with the most sophisticated and careful processes used today. Unfortunately, construction contractors and supervisors often ignore safety precautions for time and money concerns. This will expose workers to unnecessary risks and dangerous conditions.

Wind, temperature and general weather conditions also have a huge impact on construction site safety. These factors cannot be controlled, but they must be considered in determining the safety of construction workers.

Thousands of construction workers are hurt in the following ways:

If you or a loved one are injured in a construction accident, call Corpus Christi construction accident attorney Scott Nelson, serving Houston, Brownsville, San Antonio, Laredo and all of Texas.

If you work on an oil rig anywhere in the world, you know how dangerous an accident can be. Injuries suffered to workers on oil rigs are often very serious. They may include, broken bones, serious burns, head trauma and spine trauma. When an oil rig worker is seriously hurt, his livelihood and ability to help his family is in serious jeopardy.

A good oil rig accident attorney knows that many of these accidents are completely preventable. Often, the severe injuries and death are caused by unsafe working conditions or defective wellheads or other equipment. Oftentimes, the oil companies which own or manage the rigs will be found liable because they failed to implement sufficient safety and security measures or failed to properly maintain the oil rig.  Oil rig operators are also under a lot of pressure to work as fast as possible because time is often money.  Safety is often overlooked for money.

An injured worker may be able to recover damages for lost wages, lost future wages and income, pain and suffering, past medical bills, future medical care, funeral costs. Punitive damages, designed to punish the wrongdoer, may also be awarded in some cases.

 Some of the more common causes for oil rig accidents include:

A cruise ship accident lawyer needs to know that typical maritime law does not always apply to cruise ship accidents. Often, cruise lines have certain provisions in their passenger tickets (which are authorized by United States federal statutes) which change (and often shorten) the time in which an injured passenger may file a lawsuit. Although the usual statute of limitations for maritime cases is three years, these provisions often shorten the time to one year. Moreover, cruise ship lines also have forum selection clauses, which mandate that they can only be sued in a certain place (often Miami, Florida).

Another trick they use is to have the ship registered in a foreign country while flying a foreign flag. As such, typical United Sates maritime law may not be applicable. Various international treaties signed by the United States and the "flagged country" may need to be considered.

Once you are on a cruise ship, you are pretty much stuck there. As such, vacationers on cruise ships must truly place their trust in the company. As such, the cruise ship operators must provide security to the passengers to protect them from operators of the ships, as they have few means to leave the ship once a cruise starts. Because of this, cruise lines must be diligent in providing security to passengers to protect them from other vacationers and from assaults by crew members.

If you are injured on a cruise ship, here are some things to remember:

1. Make a written report to the ships’ security department. Make sure you get a copy.

2. Get treatment from the ship’s doctor or medical staff.

3. Go to the shore side doctor at the next stop. If the matter is serious, see your doctor when you get home. Cruise ship doctors are not the best in the world.

4. Take photographs or video of the accident scene.

5. Get the name and contact information of all witnesses and cruise line personnel that have knowledge of the accident.

Contact Texas cruise ship accident attorney Scott Nelson if you or a loved one has been injured on a cruise ship. Serving Galveston, Houston, Brownsville, Corpus Christi and all of Texas.

The Death on the High Seas Act (DOHSA) applies to persons, including passengers, when the death is caused by a wrongful act on the high seas beyond a marine league from the shore of all states, dependencies and territories of the United States.  DOHSA does not apply to deaths on the Great Lakes or the rivers or lakes within the country.  All suits under DOHSA must be brought in admiralty.  The statute of limitations for DOHSA lawsuits is now three years.   

DOHSA actions may only be brought by the decedent’s personal representative, for the exclusive benefit of the decedent’s parent, child, spouse, or “dependent relative.”  Children, parents and the spouse do not have to prove dependency to recover.  The other relatives must show dependency.

The case can only be in United States district courts, in admiralty, and without a jury.  However, actions brought under general maritime wrongful death or survival law or under the Jones Act may be brought either in state or federal court.

Maritime lawyers should be aware of the limited damages recovery under DOHSA.  Damages are limited to the pecuniary loss only of the persons for whose benefit the suit is brought.  This means a recovery of only the actual economic losses (salary, paychecks, etc.) which the beneficiaries could reasonably have expected to have received from the life of the decedent.  There is no recovery for loss of love and affection, loss of consortium, loss of society, loss of companionship, or mental anguish. However, included in the pecuniary losses is the value of nurture to children, funeral expenses, loss of services around the home, and the value of the financial contributions that the decedent would have made to his dependents.

Decedents included in DOHSA are any person whose death was caused on the high seas, including seamen, passengers and crewmembers of a vessel, as well as the crew and passengers of aircraft crashing on the high seas, if the cause of death was a “maritime tort.”

Contact Corpus Christi maritime attorney Scott Nelson if you need help with a maritime matter.  Serving Brownsville, Galveston and all of South Texas.

Reflex Sympathetic Dystrophy Syndrome (RSDS) is a condition with multiple conflicting and odd, even bizarre symptoms. The one symptom which seems to be consistent is pain, often excruciating. The injured person’s complaints of severe pain often are not accepted at face value because the factor causing the pain is often not the one which is associated with the extreme symptoms.

Personal injury lawyers should understand that RSDS may occur in any area of the body, but the most common is in the person’s extremities. One of the biggest problems with RSDS is the failure of the treating doctors to diagnose it. The typical history of a very slight blunt trauma to a small area of an extremity usually does not result in serious problems to the entire extremity. The doctor may then think the problem is in the person’s head and then send them out for psychological help. Moreover, the person’s family also may think that the problem is in the person’s head. This may cause great despair and sadness to the injured person.

There may be a significant negligence or personal injury action against the defendant who caused the initial slight trauma. This is similar to a case where a hemophiliac bleeds to death from a slight cut. Moreover, there may be a medical negligence claim if the doctor failed to make a timely diagnosis.

RSDS was described in a study by various doctors in 1864. These doctors studied Civil War soldiers who were shot in the extremities and developed a syndrome consisting of constant and persistent burning pain with progressive trophic changes. They named the condition "erythromelalgia." Over the years, the condition has had many names.

The cause of RSDS is not clearly known at this time. It appears that the sympathetic nervous symptom may turn on in an attempt to help the person’s body deal with the original trauma, but then fails to turn off and remains "hyperactive." RSDS may affect all levels of tissue, including muscle, bone, skin, subcutaneous, fascia and synovium. Symptoms are often varied and contradictory, if not bizarre.

Contact Corpus Christi personal injury lawyer Scott Nelson if you have been seriously injured and need assistance.  Mr. Nelson serves Houston, San Antonio, Corpus Christi, Brownsville, Laredo and all of Texas.

Sometimes, the changes in personality in the brain-injured person may be subtle. Thus, the correct diagnosis and assessment of long-term impact may be very difficult to determine in those cases where the injury does not appear to be that severe. As such, the neurosurgeon or neuropsychologist may need to rely on input by friends and family.

Expert testimony can be used to prove the presence of trauma to the brain. Often, the manner of proof is by neurological testimony which is based on examination and treatment by the testifying expert. Evidence from family, friends, employers, etc., of the person’s "before and after" personality is also very helpful in showing loss of ability, personality, or other mental functions. A good resource for attorneys to use is the National Head Injury Foundation, which maintains a list of various states with Foundations, along with a bibliography of useful texts.

Brain injury lawyers must be cautious in attempting to separate the mental aspects of the head trauma from the emotional aspects. The emotional aspects of the head injury may be more severe than the mental aspects. However, a jury may not understand this fact and may look for identifiable explanations. Evidence of the "new and different" person after the accident may help the jury understand the extent of the injury.

Where a person has been severely impaired, the defense may focus more on the economic aspects of the case than the medical issues. However, where the impairment is more subtle, a vigorous defense may be mounted. Jurors are often more sympathetic to persons who have obvious deficits such as loss of memory, intellectual function, speech of cognition.

The families of the injured person often undergo tremendous stress, anxiety and changes as they go through months and years of uncertainty. Family members may need counseling to help them deal with the injured individual. The costs associated with catastrophic illness and injury, such as is found with brain injuries, is enormous and poses additional problems for families who do not have adequate insurance.

Contact Texas traumatic brain injury lawyer Scott Nelson if you or a loved one needs assistance. Mr. Nelson serves Houston, Dallas, Corpus Christi and all of Texas.

Traumatic brain injury lawyers need to understand that injuries to the head often result in physical, mental and psychosocial damages. This is not the same as "post-traumatic stress disorder." A true head injury action concerns trauma to a person’s head. The damage to the person’s head can affect not only a person’s thinking, but also their emotional condition.

Some commentators have labeled the head injury epidemic as the "silent epidemic". There are ten times as many people suffering head injuries as there are the combined total of muscular dystrophy, multiple sclerosis and spinal cord injuries. Many times the injured person becomes an incompetent, violently aggressive individual.

The results from head injuries can be broadly categorized into three categories. The first is psychosocial changes, which may be even more disruptive than physical impairments. A frequently observed result from a head injury is greatly increased aggressiveness. This is the most difficult symptom to manage, with very little improvement over time. Indeed, the bad temper or aggressiveness can actually get worse over time. This can often have a devastating impact on family members. The mood-disordered patient can also have manic episodes, or become schizoid, psychotic, or anxious. Depression is also very common, as well as self-hate, stealing, bulimia, and inappropriate sexual behavior.

The second category of results from brain injuries is impaired cognitive abilities. Cognition is a blend of memory, thinking and perceptions, which gives a person their own understanding of the world. Divorce often occurs with brain-injured patients. They are extremely difficult to manage because they are very reactive to unspoken anger and tension. There may also be significant memory deficits.

The third category of results from brain injuries is impaired physical abilities. There are many physical abilities which can be impaired after a brain injury. Expert advice in the areas of neurology, physical medicine and psychiatry is needed to deal with the various physical problems of the brain-injured patient.

Contact Texas brain-injury lawyer Scott Nelson if you or a loved one has sustained a brain injury. Serving Corpus Christi, Houston, San Antonio, and all of Texas.

Carriers in trucking accident cases often hire biomedical "experts" in defending a case. These supposed experts are hired to look at photographs of the vehicle and the plaintiff’s medical records and state that it was physically impossible for the plaintiff to have been injured severely in the wreck.

These "expert opinions" are the hallmark of junk science. They make untold millions testifying for insurance companies. Their conclusions and opinions are often completely unsupported by the facts of the case. When these "experts" appear in trucking accident cases, it is very important to try to discredit and disqualify them. Juries need to know their biases so they can properly determine a case. Often these experts are both physicians and engineers, so the jury gives them great credence. In truth and fact, they are paid assassins to confuse the jury.

It is extremely important in trucking accident cases to get information regarding the financial ties between the insurance companies and their "experts." When you show a jury that the "expert" makes a fortune from the insurance companies saying the same thing over and over, the jury can understand how disingenuous the opinion is. Lawyers should always share this information with each other rather than trying to reinvent the wheel every case.

Some of the important discovery requests in trucking accident cases are as follows:

After a trucking accident, it is also very important to take lots of high-quality pictures of your client’s vehicle. Also, try to take pictures of the defendant’s truck before it is repaired. Photograph the scene and talk to all witnesses and physicians.

Contact Corpus Christi trucking accident lawyer Scott Nelson if you are injured in a trucking accident. Mr. Nelson also serves all of Texas.

Many cases in Texas have discussed the litigation of mesothelioma and asbestos-related physical injuries. For any actions filed after June 3, 2003, the successor asbestos-related liabilities for a corporation are limited to the fair market value (FMV) of the total gross assets of the transferor at the time of the consolidation or merger. The corporation has no responsibility for successor asbestos-related liabilities above this limitation. This is a very important law, as mesothelioma claims (please check our "Mesothelioma FAQ" section for more information) and their defense are very expensive.

The Texas Civil Practices and Remedies Code ("CPRC") defines an asbestos claim as follows:

A "successor" is a corporation which incurs or assumes, or has incurred or assumed, successor asbestos-related liabilities. A "transferor" is a corporation from which successor asbestos-related liabilities are or were incurred or assumed.

For purposes of the CPRC, a corporation can establish the FMV of total gross assets through any method reasonable under the circumstances, including by reference to the going concern value of the assets or to the purchase price attributable to or paid for the assets in a fair (arm’s length) transaction. If there is no readily available information through which the FMV may be determined, reference to the value of the assets recorded on a balance sheet is acceptable.

Our firm represents mesothelioma clients in Corpus Christi, Houston, Galveston, Brownsville, Laredo, and throughout Texas. Contact Galveston mesothelioma lawyer Scott Nelson if you need help with a mesothelioma claim.

Expert evidence is required for product liability (defective products) actions involving toxic products. Plaintiffs must prove their case by a preponderance of the evidence. As such, liability will not be found in products liability cases when scientifically reliable evidence is not available. The offering party must show the reliability of the expert evidence.

Epidemiological evidence is often used in toxic tort cases. Epidemiological studies examine existing populations in an attempt to determine whether there is an association between a particular condition or disease and a factor which is suspected of causing that condition or disease. When a plaintiff uses epidemiological studies to prove specific causation, the plaintiff must show that he is "similar to the individuals in the study. A court must determine whether the epidemiological is reliable before a plaintiff or defendant may use the evidence to support the expert’s opinion. The expert has to identify the particular study, get the study admitted into evidence, and explain how the methodology of the study is scientifically reliable. It should be noted that epidemiological studies have no evidentiary significance if the injured person cannot show that his exposure or dose levels were comparable to or greater to that in the studies.

Causation in toxic tort cases is sometimes viewed in terms of general and specific causation. General causation means that a substance is capable of causing a particular condition, injury or disease. Specific causation means a substance caused a particular person’s harm or injury.

Knowledge concerning the amount of exposure to a particularly harmful substance is essential for any reliable expert opinion that the particular substance caused a condition or disease. As such, to carry the required burden of proving that a plaintiff’s harm or injury was caused by exposure to a specific substance, the plaintiff must show the levels of exposure which are hazardous to humans, as well as the plaintiff’s actual exposure.

Scott Nelson represents products liability clients in Galveston, Corpus Christi, Brownsville, Laredo, Houston and all of Texas. Contact Corpus Christi product liability lawyer Scott Nelson if you need help with a products liability claim.

Generally speaking, "products liability" (or defective products) refers to the liability of a manufacturer, seller, or other person or individual responsible for placing a product in the stream of commerce for property damage or personal injuries that the product caused. Although manufacturers of products that harm or injure consumers are liable for injuries, they are not insurers of the safe use of a product.

A manufacturer’s duty to provide an appropriate warning is virtually absolute for products which contain dangerous or toxic ingredients which are not obvious to the typical user. Further, the failure to provide a warning constitutes negligence. Moreover, it may even be negligence in failing to label as toxic a product with a known toxicity. In deciding whether there is a duty to warn, a supplier or manufacturer must consider the common knowledge held by foreseeable users, as well as whether the warning would reach users.

If a product’s manufacturer knows that when there is a severe reaction to the product, the person will die without an antidote, and the need for the antidote would not be known to an ordinary purchaser, a label is inadequate if it only states that if an allergic reaction sets in, the product should be discontinued.

Under the Texas Civil Practices and Remedies Code, a product manufacturer or seller is not liable if:

There are several kinds of products liability actions. These include manufacturing defect, design defect and marketing defect (such as the failure to warn of a toxic product). To prove that a product is defective, it must be shown that the product was unreasonably dangerous in construction, in design, or because inadequate instructions or warnings were provided.

Our firm represents products liability clients in Corpus Christi, Galveston, Brownsville, Laredo, and all of Texas. Contact Corpus Christi defective product attorney Scott Nelson if you need help with a defective product lawsuit.

Survival actions are often brought along with wrongful death actions. A personal injury action does not abate, or end, because of the death of the injured party or the person causing the injury. When the injured party dies, the action survives and is then brought in favor of the deceased’s heirs, estate and legal representative. Just as with any other claim, a plaintiff bringing a survival action on behalf of a decedent must have both legal capacity to sue and standing.

An heir has capacity to bring a survival action when the decedent’s personal representative either will not or cannot bring the suit, or when the representative’s interests are different or antagonistic to that of the estate.

There is not a survival action for the death of a fetus. A child must be born alive for there to be a survival action. However, parents have various remedies under the Wrongful Death Act for the death of a fetus. Additionally, damages relating to the mother’s mental anguish because of her negligent treatment may be recovered.

Under the survival statute, the damages recoverable are limited to the damages suffered by the decedent prior to his death. Accordingly, the legal representatives or heirs of an estate may recover for the physical pain, suffering, and property damage suffered by the deceased prior to his death.

Circumstantial evidence may be used to establish the existence of conscious pain and suffering by the deceased. Moreover, pain and suffering may be presumed or inferred as a result of severe injuries. There needs to be some degree of consciousness to support an award of pain and suffering. However, the consciousness does not have to be complete. In one case, five seconds of conscious pain suffered by a minor who was electrocuted was enough to support a pain and suffering award.

The judge or jury may award money damages for the decedent’s mental suffering, as well as for the physical pain and suffering.

The Nelson law firm represents clients in Corpus Christi, Brownsville, Houston, Galveston, Laredo, and all of Texas. Contact South Texas wrongful death lawyer Scott Nelson if you need help with a wrongful death lawsuit.

A decedent’s minor child may recover an money damages representing the amount the decedent would reasonably have contributed to the child’s maintenance and "the value of the services which the (deceased parent) in reasonable probability would have rendered them in training, advising and educating them." Similarly, the adult children of a decedent may receive damages for the loss of expected contribution from a parent. There is no need to show evidence of exact amounts of money received or expected to be received form the decedent.

A deceased parent’s children can also recover damages under the Wrongful Death Act for the loss of their parent’s companionship, as well as for mental anguish caused by the death of their parents. Recovery of damages for mental anguish does not depend on the child’s mental anguish manifesting itself physically.

The surviving spouse and the decedent’s biological heirs may also receive exemplary, or punitive, damages in a wrongful death case where the defendant’s conduct was grossly negligent, willful, malicious or fraudulent. Surviving parents cannot receive exemplary damages for wrongful death. Surviving parents may, of course, receive actual damages in a wrongful death action. They may only receive punitive damages through the decedent’s estate in a survival action.

In general, an award of punitive damages must be supported by an actual damages award. Funeral expenses are generally not recoverable in a wrongful death action because they involve obligations of the estate. As such, they may be recovered in the survival action.

All plaintiffs who are statutory beneficiaries under the Wrongful Death Act may recover damages for mental anguish and loss of companionship. It is advisable to instruct the jury that loss of society and mental anguish are two distinct elements of recovery.

One other element of damages which is recoverable is damages for loss of inheritance.

Our firm represents clients in Corpus Christi, Houston, Galveston, Brownsville, Laredo, Victoria and all of Texas. Contact the Law Office of Scott Nelson if you need assistance with a wrongful death claim.

A jury may award as compensation for a wrongful death the damages that it finds proportionate to the injury or harm sustained by the statutory beneficiaries because of the death. A jury will also divide and apportion the award among the beneficiaries enumerated by statute. The damages will be determined as of the date of death.

In an action for a child’s death, the child’s parents may recover the pecuniary (or dollar value) of the child’s services from the time of death until the child reaches the age of 18. However, the cost of the child’s education, support and maintenance is subtracted. The value of any pecuniary contributions the child would have, in reasonable probability, given his parents after the age of 18 is added to the award.

To determine the amount the child would have contributed to the parents had the child lived, courts consider the following factors:

(1) the age, intelligence, health and disposition of the child;

(2) the amount and value of the child’s labor around the house; and

(3) the child’s expected contribution to the family while the parents were alive;

Where there is an adult child, the parents can generally recover the amount of future pecuniary contributions that the child, would have been expected to make to the parents. Some of the factors to be considered include the child’s financial condition, the child’s disposition toward the parent, and the financial condition of the parent. Parents may also recover for the loss of companionship and society of their child and for mental anguish caused by the child’s death.

A surviving spouse may recover the financial contributions which he or she would have received, as well as pecuniary value of intangible services which the surviving spouse would have received. The may also recover damages for mental anguish and loss of companionship.

Contact Galveston wrongful death lawyer Scott Nelson if you need assistance with a wrongful death claim.

Under the Wrongful Death Act, a surviving spouse is a statutory beneficiary. A surviving common-law spouse is also considered to be a statutory beneficiary. However, a surviving putative spouse is not considered to be a statutory beneficiary.

Adult or minor children can bring an action for the wrongful death of a parent. Although legally adopted children are considered statutory beneficiaries, a child who was treated by the decedent as an adopted child but without formal adoption proceedings will not be considered as a statutory beneficiary. An adopted child van not sue for the wrongful death of a natural parent whose parental rights were terminated. Since the right to sue for wrongful death is a statutory right and not a right which was inherited from the parent, it is divested from the child at the time of termination of the parental rights. Regardless of the marital status of the parents, a child has a wrongful death cause of action for the death of his biological parents.

Under the Texas Wrongful Death Act, parents of a decedent are statutory beneficiaries. Whether the child was a minor or an adult when the child died does not matter. Since children who have been formally adopted are treated in the same manner as natural children, an adoptive parent may bring an action for the wrongful death of an adopted child. Someone who acted in the place of a parent but without formal adoption proceedings may not sue for wrongful death.

A mother and father have a cause of action for the death of their child because of prenatal injuries if the child was viable when the injuries occurred and was born alive. There is not a wrongful death cause of action for the death of an unborn fetus. However, damages from the death of an unborn fetus may be recovered as elements of the mother’s damages. These damages include medical and funeral expenses for the fetus.

Contact Corpus Christi wrongful death lawyer Scott Nelson if you need assistance with a wrongful death claim.

Two separate actions may be brought when wrongfully inflicted injuries lead to a person’s death. The first one is based on the Wrongful Death Act. This act provides a statutory cause of action for the surviving spouse, children, and parents of the deceased. The act is intended to compensate them for the losses suffered as a result of the wrongful death. There is no common law wrongful death cause of action.

The other action which can be brought because of wrongfully inflicted injuries which result in death is a common-law action for damages sustained by the deceased. If not for the death, no statutory authority would be necessary to support the action. The Survival Act provides that most actions for personal injuries do not stop or abate because of the death of the tortfeasor or the victim.

The wrongful act, carelessness or negligence which forms the basis of liability in a wrongful death action must be of such degree or character that the act would have allowed the injured party to maintain an action for the injuries if he had not died. The defendant may present any defense which would have been available in a suit brought by the deceased. Since wrongful death actions are seen as derivative of the deceased’s rights, plaintiff stands "in the legal shoes of the decedent. Accordingly, wrongful death claims are not allowed when the deceased’s action would have been barred because of governmental immunity.

The defenses of justifiable homicide and self-defense may be raised in wrongful death actions. In 2007, legislation expanded the right of a person to use force, including deadly force, in self-defense and to prevent murder, sexual assault, aggravated sexual assault, robbery, aggravated robbery and aggravated kidnapping.

In a wrongful death action, recovery of actual damages may be reduced or even barred because of the responsibility of the deceased or a beneficiary, or both, for the death. The wrongful death action may only be brought by the statutory beneficiaries, not by other surviving relatives, such as brothers or sisters.

Contact Galveston wrongful death lawyer Scott Nelson if a loved one has been killed by someone’s negligent activities and you need counsel.

Although the duty owed to children is generally the same as that owed to adults, the exercise of ordinary care to a child may require different conduct than would be required to an adult. This different conduct may be required because the risk of injury to a child may be greater than that posed to an adult by the same act or condition.

Common carriers, such as operators of buses, taxis and streetcars, are charged with a high degree of care with respect to their passengers. Generally speaking, common carriers have to protect their passengers from injuries by strangers or intruders. The standard has been defined as that used by a very cautious, prudent and competent person under the same or similar circumstances. The reason for holding common carriers to this higher standard of care is that passengers need to feel safe while traveling. In determining whether an entity is classified as a common carrier, courts look to the entity’s primary function, and it must be determined whether the business of the entity is public transportation or whether the transportation is simply incidental to the entity’s primary purpose.

"Good Samaritans" are held to a lower standard of care. For instance, if a bystander attempts to help an injured person in a oil rig accident, construction accident, or trucking accident, he may only be held liable for negligence if he is wantonly or willfully negligent. The reason for the good Samaritan statute is to lower the standard of care to encourage both medically trained personnel and laypersons to render aid in emergency situations. Thus, the statute provides a waiver for actions constituting ordinary negligence. For a person to qualify for immunity from civil damages under this statute, a person who provides care in an emergency situation must show that he would not ordinarily receive payment under the circumstances under which the emergency care was provided.

Contact Corpus Christi personal injury lawyer Scott Nelson if you have been injured in a trucking accident and need representation.

The standard of care which is owed to a particular individual depends on several factors, such as the circumstances of the particular event or whether a special relationship exists. The standard of care is sometimes a consideration in product liability and defective product cases.

For negligence purposes, the degree of care required, or the steps that would be seen as reasonable, depends upon the danger involved. Courts have found varying standards of care, such as ordinary and reasonable standard of care or a professional standard of care (for professional negligence cases).

The general standard of care to test the question of negligence is the common experience of mankind, and generally implies the want of that care and diligence which an ordinary prudent individual would use to prevent injury under the particular circumstances. To establish negligence liability, the plaintiff must prove that the defendant did something which an ordinarily prudent person exercising ordinary care would not have done under the same circumstances, or that the defendant did not do that which an ordinarily prudent person in the exercise of ordinary care would have done under the circumstances. Ordinary care is defined as that degree of care that would be exercised by a person of ordinary prudence under the same (or similar) circumstances.

Another duty of care is "due regard," which is different that ordinary care. Due regard is a midlevel or intermediate standard imposing a duty less than ordinary care, but greater than a simple lack of recklessness. In such a case, although a person does not have a duty to act, if one voluntarily acts, he must do so with due care and can be held liable for negligence.

Professionals, such as attorneys, architects, accountants, dentists, physicians and engineers must exercise that degree of skill, knowledge and judgment possessed by members of their respective professions. For instance, in the context of engineering services, professional negligence means doing that which an engineer of ordinary prudence in the exercise of ordinary care would have done in the same or similar circumstances (or, in the exercise of ordinary care, would not have done under the same or similar circumstances).

Contact Corpus Christi product liability lawyer Scott Nelson if you have been injured by a defective product and need representation.

Compensatory damages may be awarded in negligence actions. This may also include damages for mental anguish, when there are also physical injuries. Damage awards can be quite large in serious personal injury cases and catastrophic accidents.

Additionally, exemplary or punitive damages may be awarded, such as in the case of gross negligence where it can be shown that the defendant had subjective effectual awareness of an extreme risk created by the defendant’s conduct.

A person who is placed in danger or peril by the negligence of another, but escapes without injury or physical harm, may not recover damages simply because he has been placed in a perilous situation. Fright is not the subject of damages.

Texas has a comparative negligence statute, which allows for proportionate responsibility for, and recovery of damages in certain civil actions. For instance, where a jury awards a plaintiff $100,000.00, but finds that the defendant was 70% at fault and the plaintiff was 30% at fault, the plaintiff will only receive 70% of the award, or $70,000.00.

Mitigation of damages, or damages that reasonably could have been avoided, is a factor courts consider when the issue is properly plead and proven. The San Antonio Court of Appeals has noted that evidence must be shown that clearly shows a plaintiff’s failure to mitigate caused further damages, and the evidence must be sufficient to guide the jurors in deciding which damages were attributable to the plaintiff’s failure to mitigate.

The responsibility or burden of proving a failure to mitigate damages in a negligence proceeding is on the party which caused the loss. The standard is that of ordinary care, which is what an ordinary prudent person would have done under the same or similar circumstances. The duty to mitigate damages arises only if can be done with small expense or with reasonable exertion of effort.

Contact Corpus Christi personal injury attorney Scott Nelson if you are injured in a work-related accident and need representation.

A "superceding cause"can be defined as an act by a third person or other force which, by its intervention, prevents an actor from being held liable for harm or injury to another, even though the actor’s antecedent negligence is a substantial factor in causing the harm.

To determine whether an intervening force is a superceding cause of harm or injury to another, and therefore, the proximate cause of the injury, courts consider the following factors:

This situation may occur in trucking accident or car accident cases. In one case, the Beaumont Court of ruled that a borrower’s act of loaning a borrowed car to a driver in exchange for crack cocaine was a superceding cause of injury, where the owner did not know that the borrower had a propensity to loan out the car and the borrower had returned the car safely the week before.

Contact Corpus Christi personal injury lawyer Scott Nelson if you have been injured in by another’s negligence and need assistance.

Cause in fact is an element of proximate cause which means that the negligent act or omission was a substantial factor in bringing about the harm or injury, and without such negligence, the injury would not have occurred. A consideration in proximate cause is foreseeability. The test for foreseeability is whether the actor, as a person of ordinary intelligence, should have foreseen the danger to others created by the actor’s negligent act.

The specific or particular act need not be foreseen, but the injury must be of such general character as might reasonably have been anticipated. Timing is also a consideration. For negligence to be a proximate cause of an injury, the injury must have been foreseeable by the acting wrongdoer at the instant of the wrong.

Sometimes there is more than one proximate cause of the in juries or harm inflicted. Thus, there may be concurrent causes of an accident. This sometimes occurs in oil rig accidents or other catastrophic accidents. A "concurrent act" cooperates with the original act in b ringing about the harm or injury and does not cut off the liability of the original actor. Thus, all actors who contribute to an injury and that proximately caused such injury are liable. Just because another’s negligence is foreseeable does not mean that the chain of causation is broken. However, where the negligence of one party constitutes a new and independent cause, not connected form the original cause, which intervenes and breaks the chain of sequence, becoming itself the direct and proximate cause of the harmful event, then the parties are not liable for concurrent causes. The new and independent cause will then be seen as an intervening cause and thus will not be the proximate cause of the event.

Contact Corpus Christi personal injury attorney Scott Nelson if you or a loved one has been injured by another person’s negligence.

Many personal injury cases have a negligence cause of action. In a negligence case, the plaintiff must prove that the breach of a duty owed by the defendant to the plaintiff was both the actual and proximate cause of the injuries sustained by the plaintiff.

Two distinct concepts are embraced by proximate cause: cause in fact and foreseeability. The doctrine of proximate cause establishes the line of legal causation and ultimately involves weighing human conduct and various policy considerations. Proximate cause cannot be satisfied by guess, speculation or mere conjecture. The evidence must ultimately show that the negligence was the proximate, and not simply the remote, cause of the injuries. The conclusion must be that the injury was a natural and probable result of the negligence.

To establish cause in fact in a negligence action, a person must show that the act or omission was a substantial factor in bringing about the injuries and, without it, the harm or injuries would not have occurred. This is a delicate determination.

A "producing cause" is an act that is a substantial factor which brings about a harm or injury and without which an injury would not have occurred. Proximate cause and producing cause are not the same. Foreseeability is an element of proximate cause but not for producing cause.

The proximate cause of an event causing harm or injury has been defined as ‘that cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces the injury, and without which the injury would not have occurred." When an action sets into motion a natural and unbroken chain of events leading directly and proximately to a reasonably foreseeable result or injury, then it is a proximate cause of that harm or injury.

Contact Corpus Christi personal injury attorney Scott Nelson if you or a loved one has been injured by negligence.

Generally speaking, a person is under no duty to aid another in distress. As a matter of law, it has been held that a bystander who does not create dangerous situation is not required to help another, to become a "Good Samaritan", and to prevent injury to others. If a person has only mere knowledge of a dangerous situation, the only duty is a moral duty to warn or render aid (and no legal duty). Additionally, a person has no legal duty to protect another person from the criminal acts and activities of a third person.

However, in some situations, negligence liability may be imputed to a nonactor because of some special relationship between the defendant and the third person. These special relationships may include employer and employee (perhaps in an oil rig accident scenario), driver and passenger, owner and driver, bailor and bailee, partnership, or joint enterprise. For instance, if the party in charge of a dangerous person knew or reasonably should have known of the dangers that person posed, then the persons foreseeably exposed to such danger may be owed a duty of care.

As previously noted, in order to recover in a negligence action, the plaintiff must establish both the existence of a duty and the violation, or breach, of that duty by the defendant. Someone can breach a duty owed by acting or doing something (active negligence), or by not doing something that should have been done (passive negligence). For example, in construction accident cases, active negligence may be the dropping of scaffolding material on a worker below.

The duty owed under the particular situation is also determined by the particular situation involved. The duty owed to a foreseeable plaintiff has been held to be different from the duty owed to an unforeseeable plaintiff. Certain plaintiffs, such as rescuers, may be owed a higher degree of care than a foreseeable plaintiff.

Contact Brownsville personal injury attorney Scott Nelson if you have been injured by somebody else’s negligence and need experienced counsel.

Of all the factors used in determining whether a defendant owes the plaintiff a duty, foreseeability of the risk is the foremost and dominant consideration. "Foreseeability" requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. While the particular accident does not have to be foreseen, the injury must be of such a general character as might have been reasonably anticipated.

Where a person negligently creates a situation, it becomes that person’s duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others may be injured because of the situation. This situation often occurs in construction accident or refinery accident cases where a company creates a dangerous situation.

An affirmative duty may arise in a situation where a warning should be given to prevent injury, such as for a dangerous product, or where a person should control someone known to be dangerous, like a drunk person. There is a duty to warn third parties of a threat by a patient to kill or injure another only if the potential act is foreseeable. This often comes up in the health care context. A health care provider who can reasonably foresee that a patient poses a threat to injure or kill an identifiable victim has the duty to warn the potential victim of the threat. Also, a health care provider may have a limited duty to protect a suicidal patient from harming themself.

In certain situations, an employer may owe a duty to his employees. These duties may include the duty to provide a reasonably safe place to work, warn employees of the hazards or dangers of employment, supervise employee’s activities, and furnish reasonably safe instrumentalities with which to work.

Contact our Texas plant and refinery accident lawyer Scott Nelson if you are injured by another individual’s negligent acts.

"Negligence" has been defined by the Texas Supreme Court as the doing of that which a person of ordinary prudence would not have done under the same or similar circumstances, or the failure to do that which a person of ordinary prudence would have done under the same or similar circumstances. Negligence is a very common theory of liability included in a personal injury claim. For instance, many oil rig accident and construction accident cases include a negligence claim.

Negligence liability is based on the common law and is limited by statutory law. Additionally, the Restatement Second of Torts is an authority that is sometimes consulted when a court is determining liability for negligence. At common law, a person can be negligent for the failure to do something just as a person can be negligent for doing something.

The elements for negligence are: (1) the existence of a legal duty owed by one person to another to protect that person from injury; (2) the breach of that duty; (3) damages or injuries that are (4) proximately caused by the breach.

Whether a legal duty exists is a threshold question of law for the court to decide from the facts of the case. If there is no duty owed, there cannot be liability. To determine whether a defendant has a duty to a plaintiff, the court will consider various interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against an injury, and the consequences of placing the burden on the defendant. Another factor a court considers is whether one party had superior knowledge of the risk or right to control the actor who caused the harm.

Contact Texas personal injury lawyer Scott Nelson if you are injured because of someone else’s negligence.

Maritime common law failed to provide a seaman a cause of action against his employer for damages caused by the negligence of co-employees. Congress remedied this by adopting the Jones Act, which states, in part:

Since the Jones Act is remedial legislation, it is liberally construed to accomplish its beneficent purposes and thus is an extremely effective method of recovery for work-related accidents.

Jones Act cases relax the standard of proximate cause between the wrongful act and the injury imposed by the general maritime law and shoreside tort law. The Jones Act requires a more lenient standard of "legal cause", which does not require that a negligent act be the sole proximate cause of an injury to result in liability, but only that it contributed even in the slightest degree to the injury. Legal cause under the FELA is established when an employer’s negligence plays "any part, even the slightest, in producing the injury or death for which damages are sought." This same rule applies to Jones Act cases.

The "course of employment" criterion of 46 U.S.C.A. Section 688 is liberally construed. The criterion is deemed met if the activity in which the seaman was involved was related to his duties or his living arrangements aboard ship.

There is a three-year statute of limitations on Jones Act claims. However, the employer may be estopped from asserting the defense if it has misled the seaman into withholding suit, by conduct such as active misrepresentation of the seaman’s rights, or a promise to pay or settle the claim if the seaman foregoes legal action.

Contact our Texas Jones Act attorney Scott Nelson if you need help with a maritime matter.  Mr. Nelson represents clients in Corpus Christi, Brownsville, Galveston, and throughout Texas.

A vessel and its operator owe members of the vessel’s crew the duty to furnish a seaworthy vessel (one that is reasonably fit for its intended use). This duty is owed by the operator of the vessel. Usually the shipowner is both the operator of the vessel and the seaman’s employer.

To be considered seaworthy, the vessel, its crew and appurtenances and operation must be reasonably fit for the vessel’s intended purpose. The standard is not absolute perfection. "Reasonably fit" is to be determined by a "reasonable man" standard.

Some conditions may be unseaworthy under some conditions but not in others. Ice on a vessel in a frigid climate while the vessel is underway may not be unseaworthy, but the same conditions may make the vessel unseaworthy if the vessel is in a warmer climate or is in port.

Any improper or unreasonably dangerous method of operation may amount to unseaworthiness (as distinguished from an isolated act of negligence). An unsafe method of work may constitute an unseaworthy condition. Inadequate manning which results in fatigue of crewmembers may be unseaworthiness. Cases have held that the vessel operator has a nondelegable responsibility to assure that the vessel is not "undermanned and incompetently crewed."

A "grinding work schedule" which resulted in fatigue of the master was found to render the vessel unseaworthy. Other examples include defective hull, equipment or appliances, defective packaging of stores, and defective cargo packaging and containers.

Failure or misfunction of an item of vessel equipment under proper and expected use establishes unseaworthiness. Unreasonably slippery decks or ladders amount to an unseaworthy condition. Gear, tools and other obstructions left on deck may amount to an unseaworthy condition, but the existence of a clear path across a deck may render the vessel reasonably fit for use and reasonably safe.

Contact South Texas boat accident lawyer Scott Nelson is you are injured in a boating accident.

The remedies of maintenance, cure and unearned wages are based on the obligation of the employer of seaman to provide suitable quarters, provisions and medical care to seaman while they are aboard the vessel. An employer must provide maintenance and cure to a seamman who suffers injury or illness while "in the service of" his or her ship. The remedy is similar to worker’s compensation, as liability for maintenance and cure is imposed upon the employer without regard to fault. Unlike most worker compensation schemes, benefits are limited to the seman’s medical expenses (cure) until he reaches maximum medical improvement for his condition, wages only to the end of the voyage, and a small sum for living expenese (maintenance) during the period of treatment and convalescence.

All doubts as to entitlement, defenses, and necessity of medical treatment and of attainment of maximum medical improvement are to be resolved by the employer in favor of seaman. The employer has the affirmative duty to promptly investigate any claim for maintenance, cure and unearned wages and, resolving doubts as to entitlement in favor of the seaman, promptly pay amounts due.

After the seaman has reached maximum medical cure (also called maximum medical improvement, there is no obligation to pay maintenance and cure. Maximum cure is reached when a seaman’s condition is of permanent character and/or will not further improve with additional medical treatment.

An action for maintenance and cure may be brought in personam against the employer, either as an admiralty claim in federal or state court, or, if there is diversity jurisdiction, as a law claim in federal court.

On June 25, 2009, the United States Supreme Court, in Atlantic Sounding Co., Inc. v. Townsend, determined that punitive damages remain an available remedy under the general maritime law for a failure to provide maintenance and cure. Justice Thomas noted that where a vessel owner has demonstrated a "willful and wanton disregard of the maintenance and cure obligation", punitive damages are an available remedy. This is a remarkable and important decision for injured seafarers around the world.
 

Contact Corpus Christi and Galveston maritime lawyer Scott Nelson if you are injured in a maritime accident.

The rights and remedies available to an employee against his employer and the vessel on which the employee is working are determined by the employee’s "status." The employee’s status may be (1) seaman, (2) a nonseaman maritime worker, or (3) a nonmaritime worker. Two of the seaman’s major claims-negligence against the employer and unseaworthiness against the vessel-are governed by tort principles. The other major claim, maintenance and cure, is similar to worker’s compensation but is governed not by statute, but by judicially developed principles of maritime law.

The same three requirements for seaman status must be met for eligibility for maintenance, cure and wages as eligibility for Jones Act remedies: (1) the vessel must be "in navigation;"(2) the person has an employment connection to the vessel that is substantial both in terms of duration and its nature; and (3) his employment contributes to the work of the vessel. A seaman is a worker on a vessel who is exposed to the perils of the sea as an incident to employment. Sometimes, workers who sail the high seas are referred to as "blue water" seaman and those who work on waters other than the high seas (like the Intracoastal Waterway), especially those who work in the oil and gas production business, are called "brown water" seaman.

Because seaman status requires an employment-related connection to a vessel, a worker may not attain seaman status by performing work on a fixed platform, or in a helicopter, or on a vessel under construction in the shipyard. The general rule of thumb is that a worker must spend at least 30% of his time aboard a vessel in navigation. Seaman status is normally a mixed question of law and fact for the jury.

Contact Brownsville maritime lawyer Scott Nelson if you are injured in a boating accident.

Many times, whether a matter or claim is "in admiralty"depends on whether it has a sufficient relationship to a "vessel." For instance, an injured seafarer may qualify as a "seaman" only if his employment has the requisite connection with a "vessel." This seaman status allows the seaman to gain the benefits of maintenance and cure, the Jones Act, and the warranty of seaworthiness.

Unfortunately, there is no settles definition of the term vessel. This is frequently a litigated issue on offshore oil rig accidents. There are many types of oil rigs in the Gulf of Mexico--fixed rigs, drill ships, SPARS, tension leg platforms, etc. Some may be considered vessels, while some may not.

The United States Congress has defined "vessel" as including "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." 1 U.S.C.A. Section 3. The United States Supreme Court has defined vessels as "all navigable structures intended for transportation." Cope v. Vallette Dry-Dock Co. (S.Ct. 1887). It has been said in a great admiralty law treatise that "perhaps the best approximation [of a test] would be to say that the term ‘vessel’ is applied to floating structures capable of transporting something over the water." Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 33 (2d ed. 1975).

The United States Fifth Circuit Court of Appeals (covering Texas, Louisiana and Mississippi), which gets most of the offshore oil and gas production cases, has generally settled on a test which looks to "the purpose for which the craft is constructed and the business in which it is engaged." Blanchard v. Gas Compressor Servs., Inc. (5^th Cir. 1978). The Fifth Circuit places importance on such circumstances as the manner in which the structure is attached to the shore or the ocean bottom, whether it is registered and equipped for navigation, and the extent to which it is moved. See Ducrepont v. Baton Rouge Marine Enters., Inc. (5^th Cir. 1989).

If you have questions regarding offshore oil rig accidents, please contact Scott Nelson, representing Galveston, Corpus Christi, Brownsville, and the entire coast of Texas in maritime matters.

The United States Constitution provides for federal judicial power extending to "all cases of admiralty and maritime jurisdiction." The federal courts received admiralty jurisdiction from Congress in the Judiciary Act of 1789. In general, admiralty jurisdiction extends to matters occurring on navigable waters involving some aspect of maritime commerce, and contractual matters which directly affect maritime commerce.

"What are navigable waters" becomes the next question. United States admiralty courts recognize jurisdiction over maritime activity occurring on all waters, whether or not connected to the sea, which are used or can be used in interstate or foreign commerce, either usable in their natural state or which can be made navigable with a reasonable expenditure. One often cited definition, as stated by the Supreme Court in The Daniel Ball, 77 U.S. 557, 563 (1871), is that they "form in the ordinary condition by themselves, or by united with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries, in the customary modes in which such commerce is conducted by water."

A vessel floating on "navigable waters" is treated as a part of "navigable waters" for admiralty jurisdiction. Things like, bridges, ramps, piers, jetties, boat ramps, railways in the sea, and other structures firmly attached to land are considered "extensions of land" and are not considered "navigable waters" for the purposes of admiralty jurisdiction, unless they are used primarily in aid of navigation.

Feel free to contact our lawyer Scott Nelson if you have any questions about admiralty jurisdiction.  Mr. Nelson is a maritime lawyer serving Corpus Christi, Brownsville and all of Texas.

Admiralty, or maritime law, is one of the oldest bodies of law in  the world.  Many experts believe it began in the various countries bordering the Mediterranean Sea.  A special body of law had to be created to deal with the many problems which developed between different countries. 

A typical problem in ancient times went like this:  Ship from Country A has seafarers from Country A and B and Cargo from Countries C and D.  Some of the Cargo is damaged while being offloaded in Country E.  The other Cargo is held by seafarers from Country B who haven't been paid for 6 months.   Five countries are involved with people speaking 4 different languages.  How do we get justice?  Who do we sue?  Where?

These problems led to the establishment of special courts in coastal cities to try to resolve these disputes.  These substantive rules were eventually codified in those courts.  Some of these codes were recognized in other ports.  As these codes developed, there eventually developed a body of general maritime law which was in many ways uniform among the seafaring nations.

This area of law eventually spread to England, which established maritime courts in English ports.  Eventually, these courts were replaced by courts under the jurisdiction of the Lord of the Admiralty.  The British then established in the American colonies vice-admiralty courts to which it granted power over maritime disputes.  This is how maritime law originally got to the United States.