Wednesday, March 13, 2019

Q: Can an intentional malicious act be the basis of a wrongful death lawsuit?

When people think of a Texas personal injury lawsuit, they may think it arose from one of the more common accidents like medical malpractice or a car accident.

So, when police say a man admitted to punching his girlfriend’s baby hard in the head two times “causing the child’s hands and feet to begin to twitch and shake” before “he died from blunt force injuries”, most people think of the criminal charges.

But the alleged malicious infliction of harm which causes injury can be the basis of a civil personal injury lawsuit as well—regardless whether criminal charges are pursued. And if the victim dies, it can be the basis of a Texas wrongful death lawsuit by the victim’s closest surviving family members.

When someone seriously injures another person through their negligent, careless, or malicious actions, the victim can sue for compensatory damages in a personal injury lawsuit. In addition, if the liable party acted willfully or was grossly negligent, punitive damages may be recoverable. Very often, we see physical attacks– like the one alleged here–that result in traumatic brain injury lawsuits.

Wrongful death lawsuits are complicated and differ on a case-by-case basis as to who has to stand to sue and what kind of damages they may be entitled to collect. That’s why it’s important to seek counsel from a skilled wrongful death attorney as soon as possible after the death–especially since there are relatively short time limits on commencing these lawsuits.

While wrongful death lawsuits and the awards associated with them differ, generally the victim’s final medical expenses and funeral expenses are awarded along with other compensation that’s determined based on the victim’s relationship to the surviving family member.

In some instances where an adult wage-earner has been killed, there may be damages for loss of the victim’s financial support, benefits, services, and prospective inheritance. But even in cases where the victim was a child, family members can be awarded damages for trauma and loss of their relationship with that child. Damages can also be awarded based on the victim’s degree of consciousness and duration of suffering as well as their apprehension of their impending death and severity of their pain.

If you or a loved one have been injured, or a loved one has been killed, as a result of the actions or inactions of somebody else, the legal team at Chandler, Mathis & Zivley, PC can help maximize the compensation to which you may be entitled to. While we cannot undo the pain, taking legal action can help relieve the financial burden associated with your loss. Contact us today for a free consultation.

From our offices in Houston and Lufkin, Texas, we serve clients throughout East Texas as well as many other states.

Over in Galveston County a tragic family drama is playing out. A young man is suing his father for the wrongful death of his mother. The case has a lot of people asking just who can sue for wrongful death, and who can be sued?

The Case That Has Everyone Talking

Johnny Eugene Oliphant has been charged with murder for the December 2016 shooting of his wife, Gina. Johnny is accused of shooting Gina in the head during a fight that occurred after he mixed sleeping pills and alcohol. While on the line with a 911 operator after Gina was shot, Johnny reportedly said, “I guess I won that one.”

Johnny is currently out on bond and awaiting trial, but now he has another case pending against him. Johnny and Gina’s youngest son, Dylan, has sued his father for the wrongful death of his mother. Referring to his late mother as his “best friend,” the plaintiff asserts “her loss has wreaked absolute havoc in his life.” He is seeking unspecified monetary damages to compensate him for his financial losses, including an expected inheritance, along with mental anguish and emotional pain and suffering.

Who Can Sue?

This case is getting a lot of attention because it is such a shocking story, but it also has a lot of people asking us “who can sue for wrongful death?”

Texas law allows spouses, children of any age, and the parents of a deceased person to file a wrongful death lawsuits. Grandparents and siblings of a deceased person cannot file this kind of lawsuit.

All of the eligible plaintiffs may band together and sue the defendant as a group, or one family member can take the lead.

If no suit is filed within three months of the date of the death, the executor of the deceased person’s estate may file a suit instead. However, the surviving family members can ask that such a suit be dismissed.

People have been wondering how old Gina Oliphant’s son Dylan is since he is the one bringing a wrongful death suit, but that does not matter under the current law.

Who Can Be Sued?

People have also been shocked that a son is able to sue his own father.

In order to properly explain who can be sued for wrongful death, it is helpful to go over what a wrongful death lawsuit actually is.

A wrongful death suit is a personal injury lawsuit that is filed against someone whose “wrongful act, neglect, carelessness, unskillfulness, or default” has caused the death of another.

The key to determining who can be sued for wrongful death is to look at the above definition and see if it applies given the circumstances of someone’s death. There is nothing in the law that says family members are not allowed to sue one another for wrongful death.

However, since every case is different, it can be hard to say if someone’s death was wrongful. That’s why wrongful death cases are tried in front of a jury.  

If you are mourning the loss of a loved one, and are considering bringing a lawsuit against those you believe are responsible, please consider contacting our office. We can help you evaluate your case and answer any questions you have free of charge. We represent our personal injury and wrongful death clients on a contingency fee basis, which means you pay nothing unless we recover compensation on your behalf.

According to court documents and news reports, on May 16, 2013, police officers in Fort Worth executed a “no-knock” search warrant at a residence on Thannisch Avenue; bursting into the house without warning in a search for drugs. 34-year-old Jermaine Darden was in the home at that time, and his family alleges that the police officers’ actions killed him.

Darden’s family alleges that he suffered a heart attack and died after officers needlessly choked, kicked, and shot him with a stun gun. They filed a wrongful death lawsuit against the officers involved at the scene and the city of Fort Worth.

Lawyers for the city contended that Darden tried to resist arrest, but witnesses said he made no attempt to flee, attack, or resist.

The Tarrant County medical examiner’s office determined that Darden, who weighed 340 pounds, died of natural causes, suggesting that his heart attack was associated with the fact that he had high blood pressure and was physically restrained.

The case went all the way up to the United States Supreme Court, which determined that there was enough evidence available about what happened on the night of the raid that a jury should weigh in.

Depending on how this case turns out, it may become easier for families who have lost loved ones during an incident where police are involved to sue Texas cities for wrongful death. This would be a welcome change. Families who suffer the loss of a loved one should always have the option of seeking redress from those they believe caused their loved one’s death. These suits help families who have lost loved ones by providing them with financial compensation for their loss, and by giving everyone a sense of closure.

Family members can seek compensation for:

• Loss of financial support (typically income),
• Loss of services (like general homemaking, but also love, companionship, and society),
• Loss of prospective inheritance,
• Mental and emotional anguish, pain, and suffering,
• Medical and funeral expenses, and
• Interest calculated from the date of the victim’s death.

Such claims must typically be filed within two years of a loved one’s death.

At Chandler, Mathis & Zivley, PC we have the compassion and the conviction to fight for clients who have tragically or unexpectedly lost a loved one. We passionate about uncovering the truth, and bringing those who have acted carelessly to justice.

In October 2015, as hurricane Joaquin bore down on the Gulf Coast states, Puerto Rico-based cargo shipping company Totes Services made the doomed decision to send its El Faro vessel from Jacksonville to San Juan, Puerto Rico – despite high winds and unsafe conditions in the seas. Tragically, 33 seamen lost their lives that fateful day when the ship lost all electric power and eventually succumbed to the depths of the ocean. The incident, deemed by the U.S. Coast Guard and National Transportation Safety Board as one of the worst maritime disasters in recent U.S. history, led to not only a series of investigations by interested public and non-profit agencies, but nearly three dozen wrongful death lawsuits filed by surviving family members.

Surviving loved ones were located across the Southern United States, however many of the claims were handled by Houston-based counsel who, like us, are well-versed in the nuances of wrongful death and maritime litigation. As of April 2017, the last three of the wrongful death lawsuits settled for undisclosed amounts, and the grieving families may finally be able to accept closure in the wake of a likely avoidable tragedy.

When pursuing a claim under Texas wrongful death laws, the surviving family member must essentially prove a claim of negligence – which resulted in the death (as opposed to injury) of the victim. In essence, wrongful death laws are meant to hold defendants accountable for negligence even if the victim is no longer available to initiate the claim. Here, the defendants have not actually admitted to wrongdoing. However, parties are often prompted to settle in light of facts that may not impress a jury, such as sending a vessel on a voyage amidst a violent hurricane. By settling a case, a defendant can avoid a potentially staggering – and unpredictable – jury verdict in exchange for an agreed-upon amount.

Contact an experienced personal injury lawyer today!

If you would like to speak with an experienced wrongful death attorney in Houston, please contact our office today: 877-739-7744.

The laws of negligence assign liability to anyone who acts unreasonably and carelessly, causing injury and harm to another person. In most cases, there is no need for the responsible party to have acted intentionally, so long as their actions represent a deviation from reasonably “prudent” (i.e., careful) conduct. In some cases, negligent conduct results in the death of the victim from the injuries sustained in the accident. Under the laws of wrongful death in Texas, lawmakers and courts set out to ensure that no responsible party would be alleviated of financial responsibility simply because the victim is deceased – and created a system whereby surviving loved ones could recover compensation on behalf of their beloved family member.

Under this system, a representative for the deceased must still prove that negligence occurred and must present a case to the judge and jury that meets the four elements of negligence: duty, breach, causation, and damages.

In one recent case, which actually occurred in nearby Magnolia, Arkansas, a Texas woman is suing an apartment complex on behalf of her deceased brother, who tragically perished in a fire at the complex in August 2015. Named in the lawsuit are five individuals who run a “joint partnership” as owners of the buildings. Specifically, the surviving family member asserts that the defendants failed to keep the building in a safe condition, and did not regularly inspect the building to ensure it was safe for not only the occupants, but those living adjacent.

According to the allegations, none of the smoke alarms were operational in the building, so the victim was never alerted that a fire was underway. For this reason, the plaintiff alleges, the building owners should be held responsible for the death of the victim, citing the non-operational smoke detectors and the actual and proximate causes of his death. In a case such as this, the plaintiff would undoubtedly need the assistance of a forensic fire expert to determine whether the lack of operational smoke alarms would have made the difference between the victim surviving or not – which would ultimately be the pivotal issue for the jury to decide following the wrongful death trial.

Contact experienced personal injury attorneys today!

To learn more about negligence, personal injury, and wrongful death in Texas, please contact Chandler Mathis & Zivley today: 877-739-7744.

A Texas family has initiated a lawsuit against the technology giant Apple following the death of their five-year old daughter as a result of a horrific motor vehicle crash. According to documents released so far, the family claims it was involved in the collision due to the fact the other driver was actively using the ‘Face Time’ app while driving in traffic. The plaintiffs claim that, but for the use of the app, the entire accident would have likely been avoided.

The incident occurred in the evening hours of Christmas Eve 2014, in an area near Dallas. According to reports, the victims were operating their vehicle when they came upon police activity and rolled to a stop. Behind them, a Toyota Rav4 continued operating full speed at 65 miles per hour, careening into the back of the victims’ vehicle and completely destroying its frame. Two adults and one other young child were treated for injuries in local area hospitals, while the victims’ young daughter succumbed to her injuries in a nearby children’s hospital.

In the plaintiff’s complaint, they allege that Apple had installed software in the iPhone that could automatically disable Face Time when traveling at highway speeds. However, the software was not set to automatically engage this feature. In other words, an iPhone user would need to manually set the feature, which did not occur in this case. The other driver has since been indicted on manslaughter charges, and is set to begin his trial in February, 2017.

This case presents an interesting take on the assignment of liability following a tragic motor vehicle accident. Negligence on the part of the driver is likely pretty clear – especially given the face he admitted to using the video chatting app immediately following the crash. However, in order to connect Apple to the victim in question, the plaintiffs will have to prove the causation element is met, and that Apple could have reasonably foreshadowed this type of accident could occur notwithstanding the default settings on the FaceTime app.

Contact an experienced personal injury attorney today!

If you were recently involved in a motor vehicle accident in Texas, please contact Chandler Mathis & Zivley today: 1-800-657-2230.

Q: Is a bar or tavern owner liable for a drunk driving death caused by one who drank there then drove?

He died while on duty when his patrol car was struck “nearly head on by a drunken driver” who had just left her shift as a stripper. The hero police officer reportedly “took the hit for another citizen who was coming behind him.”  He is survived by his reported common-law wife and their young son, who have commenced a wrongful death lawsuit against the stripper and the strip club owners. She is also seeking death benefits from worker’s compensation.

Texas dram shop lawsuits are cases against bar and tavern owners seeking to hold them liable for car accidents caused by negligent and drunk drivers who drank at their establishments and then injured or killed someone after leaving. Under dram shop laws, the establishment shares in the liability for the injuries or death caused by the drunk driver they served. The stripper was convicted of “intoxication manslaughter of a peace officer” and was sentenced to 32 years in prison.

In a wrongful death lawsuit, the plaintiff has to prove a person’s death was caused by another person’s negligence and that surviving family members are suffering financially as a result of the victim’s death.

Wrongful death cases are complex and damages are determined on a case-by-case basis according to the decedent’s circumstances at the time of death. Compensatory damages may include the following:

• loss of support
• loss of services
• loss of prospective inheritance
• medical and funeral expenses
• and even punitive damages in some cases.

In the case at hand, the police officer’s surviving common-law wife is reportedly facing a third legal battle to yet again prove her entitlement to receive death benefits from the police officers’ Worker’s Compensation fund after findings in her favor at an initial hearing and on appeal.

If you have questions regarding the tragic or unexpected loss of a loved one, whether through a drunk driving accident or another accident, the skilled attorneys at Chandler, Mathis, and Zivley can help you get the compensation to which you are entitled. While we can’t bring your loved one back, you shouldn’t have to suffer financial losses as well. Contact us today for a consultation.

From our offices in Lufkin and Houston, we’ve been serving Texans for over 40 years throughout the Lone Star State as well as those people injured while visiting Texas.

A wrongful death claim arises when a loved one is killed due to the fault of another person or entity. If the victim would have a personal injury claim if he or she would have survived, then a loved one will likely have a wrongful death claim.

Loved ones can recover damages for the loss of a family member, including:

• Pain and suffering that occurred before death
• Lost future earnings
• Funeral and/or burial expenses
• Loss of companionship
• Other family-related losses
• Loss of inheritance

Only certain family members can assert wrongful death claims, however. You must meet specific qualifications to submit a claim.

Who Can File a Wrongful Death Claim?

Only the parents, children, or the spouse of a deceased individual can file a wrongful death claim. Children can assert a wrongful death claim regardless of whether they are over the age of majority (18 years of age). There is no particular order in which family members must file. That is, no hierarchy applies; a child could file even though there is a surviving spouse, for example. Family members can choose to assert a claim alone or jointly.

Adoptive children can also file claims if their adoptive parent passes away. Adopted parents also have similar rights. However, adopted children cannot file a wrongful death claim after their biological parent passes away.

Siblings, aunts and uncles, and grandparents cannot file wrongful death claims in Texas. This is true even when the victim leaves no surviving children, parents, or a spouse.

When Does the Estate File a Wrongful Death Claim?

If none of the above family members assert a claim within three months of the loved one’s death, then an executor of the decedent can file a wrongful death claim on behalf of the estate. If that type of situation occurs, then any compensation obtained goes into the estate and will be distributed according to the victim’s will or the intestate laws of Texas. This type of claim is actually referred to as a “survival claim,” and it is slightly different from a wrongful death claim under Texas law.

Who Receives Compensation in a Wrongful Death Claim?

In most situations, any compensation that is recovered in a wrongful death claim will go to all of the surviving family members. A judge will often become involved to determine how the monetary benefits should be distributed. The division is also usually based on which family members who are the most affected by the loved one’s death.

For example, if the spouse depended a great deal on the family member for income, but parents did not, then the spouse is likely to take a larger portion of any compensation awarded. Your attorney will present the financial and personal losses suffered to show how much you need the compensation compared to other family members.

How Can I Get Help with a Wrongful Death Claim?

Deciding whether to assert a wrongful death claim either for yourself or on behalf of a loved one can be a difficult decision. You can get sound advice to make this tough choice from the attorneys at CMZLaw. Contact our team to request a consultation today.

Q: Will the new texting while driving law reduce accidents and personal injury claims?

Texas car accidents can be caused by a number of factors including driving while intoxicated, speeding, aggressive driving, weather conditions, mechanical defects, and more.

Car accidents caused by a driver’s negligent, reckless, or intentional actions or inactions often leave seriously injured, disabled, or dead victims in their wake and are often the basis of a personal injury lawsuit or a wrongful death action.

Once liability is established, car accident victims may be entitled to compensatory damages including past and future medical bills for treatment or rehabilitation, past and future mental anguish and physical pain, Physical impairment or disfigurement, past and future loss of income and loss of earning capacity. If the victim dies from their injuries, their closest surviving family members may be entitled to damages as well through a wrongful death lawsuit, but who has standing to sue and the type of damages they can recover differs on a case-by-case basis so consulting a skilled personal injury attorney is advised.

Another common cause of motor vehicle accidents is distracted driving. And one of the biggest distractions is texting while driving.

In an effort to discourage texting while driving, new legislation went into effect on September 1, 2017. The new law, reportedly described by its own co-author as “something is better than nothing” has its share of loopholes.

According to the law, drivers are reportedly permitted to:

• make and receive phone calls in accordance with local laws
• use navigation applications
• use music applications.

Reported ambiguities surround the unaddressed use of “internet browsers, search functions, gaming, or other phone applications, although “the use of messaging and communications applications like Facebook, Facebook Messenger and Twitter appear to be prohibited”.

With respect to texting while driving, the new law offers reportedly some exemptions including:

• texting during emergency situations (though it doesn’t define what constitutes an “emergency”)
• workers texting the office so long as their phones are mounted
• on-duty emergency vehicle operators are exempt
• on-duty law enforcement vehicle operators are exempt
• hands free texting is allowed.

These loophole defenses, coupled with the mandate that ticketing officers “must not only witness offenders using their phones, but identify that the activity is specifically texting” will make the new law difficult to enforce.

Of course, the safest way to avoid being distracted or being accused of causing a motor vehicle accident is to avoid cell phone distractions entirely.

If you or a loved one has been injured or a loved one has been killed in a motor vehicle accident due to someone else’s negligence, the lawyers at Chandler, Mathis, and Zivley, PC will investigate your case and take legal action to help you obtain the maximum compensation to which you are entitled. Contact our office for a free consultation.

From our offices in Houston and Lufkin, we’ve been serving clients throughout Texas as well as many other states for over 40 years.

Who is liable when a fraternity or sorority member dies at the fraternity/sorority house?

The family of a Texas A&M University student who died as a result of an overdose recently filed suit against the Sigma Nu fraternity house.  In the wrongful death lawsuit, the family of the deceased student named the fraternity itself and several of its members as defendants.  Anton Gridnev was found dead inside the Sigma Nu chapter house.  Investigations revealed several drugs in his system.  Frat members allegedly failed to respond to Gridnev’s overdose in a timely manner, which Gridnev’s family feels lead to his death.

Overdoses at Fraternity and Sorority Houses

Sadly, Gridnev’s overdose while at his fraternity house is far from unusual.  Just three months after Gridnev’s death, another college student at Texas A&M similarly died as the result of an overdose of drugs or alcohol.  The student was a member of a different fraternity at A&M.  Authorities report that house members thought he was sleeping, only to find him dead later on.

These instances raise some important questions as to how much legal responsibility a fraternity or sorority should hold for the actions of its members.  Are other Greek life members expected to respond immediately to potential medical emergencies among members?  What if the fraternity or sorority house was supposed to be dry?  

Wrongful death cases involving overdoses among college students are complex and will often turn on the specific facts surrounding the incident.  Liability could arise in cases where the deceased college student’s family can show frat or sorority members pressured the student to consume drugs or alcohol that later resulted in death or failed to take action when a frat member was in obvious medical distress.

Hazing Related Deaths

Along with overdoses, college students involved in Greek life sometimes die as a result of hazing.  At least one pledge has died each year since 1969, and many years this figure is far higher.  In one recent incident, a young pledge out of Penn State died from internal trauma following a pledge event.  It is alleged that 18 older brothers of Beta Theta Pi forced the now deceased student to drink an excessive amount of alcohol.  Video footage showed them prodding the injured pledge and failing to call for medical help.  

While most campuses across the nation have called for an end to hazing, the illegal practice is still ongoing, mainly in fraternities.  Fraternities, frat members, and potentially even colleges may be held legally responsible for the death of a member if the family of the deceased pledge can prove hazing lead to his or her death.