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

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.