Archives for the month of: April, 2015

Most people who are involved in an automobile accident can easily blame the other driver as being responsible for the collision. What many of these people don’t realize is that the other driver will try to blame them for the wreck, either in whole or in part–claiming what is commonly known as contributory negligence. When this happens, a jury will be asked to sort out who they believe was at fault, either in whole or in part, and then, if both parties are believed to be at fault, the jury will then assign a percentage of responsibility to each driver. For example, let’s say that the jury found the defendant was negligent because he pulled in front of you without warning while trying to get into a restaurant parking lot; but the jury also found you liable because you were trying to find a radio station to listen to which prevented you from acting sooner to avoid the wreck. In this scenario, the jury would then be asked to assign a percentage of responsibility to each of you. Why is this important? Because the percentage of liability that the jury assigns to you will reduce any damages awarded to you by that percentage (if 50% or less); or completely bar your ability to recover damages (if the jury finds you 51% or more responsible for the wreck). For example, if a jury found the defendant driver 60% responsible and you 40% responsible, and awarded $100.00 in damages, then your $100.00 recovery would be reduced by 40%, meaning you would only get $60. Conversely, if the jury found you 60% responsible and the defendant driver 40% responsible, you would not recover anything because the jury found you 51% or more responsible for the wreck. All of this can get rather confusing so the bottom line is do not put off consulting with a qualified personal injury trial attorney to assist you in determining if you have a claim and when a lawsuit must be filed to preserve that claim. Therefore, please feel free to contact me at 940.891.0003 to set up a cost-free consultation to discuss your case. *Please note that this Blog does not address cases involving multiple defendants. This is a separate beast which is better discussed in a consultation. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood Cartwright Burke PC.

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If you’ve been hit by another car or truck, check to see if the driver is wearing a uniform or if the vehicle they are driving has company logos on it. In addition to the driver being held liable for his or her own negligence, their employer may also be liable if the driver was acting in the scope of their employment (in other words, if they are acting in the furtherance of the employer’s business). For example, if the defendant driver is making a delivery for his or her employer and hits you, he or she is probably acting within the scope of their employment. However, an employee is not acting within the scope of their employment if he or she departs from the furtherance of the employer’s business for a purpose of his or her own not connected with their employment and has not returned to the place of departure or to a place the employee is required to be in the performance of their duties. For example, if the defendant driver, while making a delivery, decides to run home to check on their dog and hits you pulling out of their driveway, the defendant driver would have deviated from the furtherance of his employer’s business. While the defendant driver is individually liable for his negligence, the employer would not be. If you have been injured in an automobile or truck accident, call Brian Cartwright at (940) 891-0003 to set up a cost-free consultation to discuss the facts of your case and determine what your rights are. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood Cartwright Burke PC.

hearsayMost everyone has heard of hearsay. No rule of evidence is so more recognized in popular culture. Rarely is a trial conducted in this country when at least once if not on multiple occasions a lawyer will rise to say, “Objection hearsay.” Generally, a hearsay rule prevents a witness from testifying about what a third party said in order to prove the truth of that out of court statement. It has been said that a juror should be like a blank sheet of paper, know neither plaintiff nor defendant, but judge of the case only upon the evidence produced before him. Borrowing from this metaphor, the hearsay rule limits what may be written on that piece of paper. Although the ideas of jurors as blank slates and the hearsay rule are relatively modern, the roots of hearsay reach back to Roman times. A cousin to the hearsay rule, the right to confront witnesses is contained in the United States Constitution. The Confrontation Claus of the Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” Generally, the right allows an accused to have a face-to-face confrontation with witnesses who are offering testimonial evidence against them in the form of cross-examination during a trial. The right only applies to criminal prosecutions, not civil cases. The Confrontation Clause has its roots in both English common law and Roman law. In noting the right’s long history, the United States Supreme Court has cited Acts of the Apostles 25:16, which reports the Roman governor Porcius Festus, discussing the proper treatment of his prisoner Paul: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.” It is also cited to Shakespeare’s Richard II, when Richard, who set himself up and judge and jury over a dispute, says “Then call them to our presence. Fact to Face and frowning brow to brow, ourselves will hear the accuser and the accused freely speak”. The history of the hearsay rule is not quite so ancient. Writing in a Harvard Law review article published in May, 1904, J. H. Wigmore wrote, “[t]he history of the hearsay rule, as a distinct and living idea, [began] only in the 1500s and it [did] not gain complete development and final precision until the early 1700s.” Beginning in the later 1400s, the development of the jury trial, with witnesses testifying about the facts of a particular case was an important factor in the development of the hearsay rule. Interesting, it appears that prior to the later 1400s juries conducted their own investigations in civil cases. Toward the end of the Middle Ages, the function of the jury transformed from persons who were active investigators that had knowledge of the case to our present day juries who are passive triers of fact with no prior knowledge of the case presented. By the 1500s, testimony of witnesses in open court was becoming the main, thought not exclusive source of proof. During this time statements were received into evidence, but the reliability of hearsay statements was beginning to be questioned as “a tale of a tale” and “a story out of another man’s mouth. In the trial of Sir Walter Raleigh for treason in 1603, the primary evidence against him was a sworn “confession” of Lord Cobham, Raleigh’s alleged co-conspirator. Raleigh alleged that Cobham had recanted. Raleigh objected to the admission of this hearsay statement and demanded that Cobham, who was being held in the Tower of London where the trial was being held, be bought to court to testify. Raleigh’s objection was ignored and he was convicted and later executed. His conviction and execution may have helped fuel outcry against the reliance on hearsay in criminal prosecutions. During this period use of witness hearsay statements, both oral and written, including sworn statements, as was the custom in civil law systems, was becoming increasingly criticized and the reliability of such statement was increasingly questioned. One factor that may have also played a role in the development of the hearsay rule was the failure of the English system to develop a system of proof comparable to the two witnesses rule found in civil and canon law systems. From the 1600’s through the 1800’s the rule developed slowly. At first, hearsay was to fully excluded. Hearsay could be received in confirm or corroboration other evidence, though it was not independently admissible. Although the precise timing and reasons for the hearsay rule can never be completely unknown, the rule became universally accepted in the English and American legal system by the mid to late 1800s. Much has been written about the purpose of the hearsay rule. Some commentators have suggested that its purpose is to support the modern jury trial process, ensuring the parties’ right to cross-examination and confrontation. Other scholars have suggested its intended purpose is to ensure the acceptability of a verdict; control highly adversary procedures and unchecked fact-finders; or contribute the justing, protect competitive advantage and limit judicial discretion. The modern rule of hearsay has been exceptions. Most developed in common law every decades if not longer. Generally, these exceptions are tied to some corroborating factor or factors that support the reliability of the statement. Scholars may argue about how the precise development or purpose of the hearsay rule and the ideals it protects; regardless, the hearsay rule is clearly supported by worthy ideals that have withstood the test of time.

In my last two blogs, I discussed the standard for simple negligence and negligence per se. What happens if you are injured as a passenger of a common carrier, like a taxi, train, or bus? What is the negligence standard for these common carriers? In such situations, the standard of negligence is elevated from ordinary care (i.e., simple negligence) to a high degree of care. In other words, negligence will mean failure to use a high degree of care, that is, failing to do that which a very cautious, competent, and prudent person would have done under the same or similar circumstances or doing that which a very cautious, competent, and prudent person would not have done under the same or similar circumstances. If you are injured while a passenger in a taxi, train or bus, you can contact me at 940.891.0003 to set up a cost-free consultation to discuss your case. I look forward to visiting with you next time.
Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood&Cartwright, P.C.

If you have been attacked by a dog, you may be able to seek recovery of your medical expenses and other damages from the owner of the dog. To prove liability against an owner, you must establish: (1) the defendant was the owner of the animal; (2) the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others; (3) the defendant breached the duty; and (4) the defendant’s breach proximately caused your injuries and damages. Of course, the first thing you will hear Fluffy’s owner say is that the dog was always docile and never hurt anyone. Believe it or not this can be a defense to avoid liability. In other words, if an owner did not know and should not have known that their otherwise docile dog might attack you, then the law may not impose liability. The key is to determine what is “reasonable” under the circumstances, which is usually a question for a jury. For example, while Fluffy may have normally been a docile, loving dog, if the owner knew that Fluffy was a female with puppies, then the owner could be charged with knowledge that Fluffy would become aggressive and potentially attack someone in a misguided belief that she was protecting her puppies, requiring the owner to take steps to protect persons who might come in contact with the dog. Another key in determining what is reasonable is finding out if there were any laws or local ordinances, sometimes called “Leash Laws,” governing the handling of the animal. These may help you in establishing liability. Obviously, this is a very cursory overview of Texas law involving a lawsuit against an owner of a dog who attacks you. There are other considerations that must be taken into account to determine if you have a case or not. Therefore, if you have been bitten by an animal, please call me at (940) 891-0003 to set up a cost-free consultation to discuss your case.
*Please note that this Blog does not apply to wild animals, dangerous domesticated animals, or landlord liability, which are separate issues better discussed in separate blogs. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood&Cartwright, P.C.