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.

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.

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.

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.

As a Starr County personal injury lawyer, with offices in Corpus Christi, I am very familiar with damages awards.  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 "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:

(1) the fact that its intervention brings about harm or injury which is different from that which would have otherwise resulted from the actor’s negligence;

(2) the fact that the intervening force’s operation or the consequences thereof appear after the fact to be extraordinary, rather than ordinary or usual, in view of the circumstances existing at the time of its operation;

(3) the fact that the intervening force’s operation is due to a third person’s act (or failure to act);

(4) the fact that the intervening force operates independently of the situation which was created by the actor’s negligence, or, conversely, is or is not a normal result of such situation;

(5) the degree or amount of culpability of a third person’s wrongful act which actually sets the wrongful act into motion; and

(6) the fact that the intervening force is due to a third person’s act which is wrongful toward the other and, therefore, subjects the third person to liability to the actor.

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

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.