Welcome to Texas:
Fall, football & this wonderful weather!
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Summer is officially over. Fall has officially begun. Here in Texas, the temperatures are still hovering near the 90s, though the triple digit temperatures at least appear to be over. For those experiencing the cool, crisp autumn air, we will try not to be too jealous. Regardless of the weather, Fall brings some of the most exciting events of the year – football, fairs, football, Oktoberfest, football, trick or treating…did I say football? It’s hard to believe we are already almost halfway through football season. Sic ‘em Bears! For those whose teams are already off to a disappointing start (sorry Aggies and Sooners), there is always next year…or the year after that.
Another exciting event happening this Fall is our annual Texas Law Update, which will be held Friday, October 14, 2022, in Dallas. This is a great opportunity for a day’s worth of free CE. For our team, it is an opportunity to get together with old friends and hopefully make some new ones. The details and registration link can be found here. We hope you can make it and look forward to seeing as many of you as possible tomorrow!
**The event is free of charge and breakfast and lunch are served courtesy of Fletcher Farley Shipman & Salinas.**
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Click It or Risk It :
Proportionate Responsibility Due
to a Plaintiff’s Failure to Buckle Up
by Lane Newbold
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With Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d 553 (Tex. 2015), the Texas Supreme Court overruled decades of precedents and allowed for the admission of evidence relating to a plaintiff’s failure to wear a seatbelt. This was due mostly to two factors:
1) seatbelts are common, scientifically proven to be safe, legally required, etc.
and
2) Texas had a new proportionate responsibility standard that allows a plaintiff to recover from whoever is at fault for causing “. . .the personal injury, property damage, death, or other harm. . .” This was a significant change from the old liability statute, which allowed for the recovery from whoever caused the accident. The Court plainly stated that the new liability question “. . . is not simply who caused the car accident, but who caused the plaintiff’s injuries.”
This distinction is often overlooked or viewed as synonymous. However, there are instances where a plaintiff’s pre-accident negligence could exacerbate their own injuries even though they were not liable in causing the events at issue – think of it like failing to mitigate injuries/damages before they occur. The Court explained by citing a similar case out of Arizona: “[t]here is nothing to anticipate; the negligence of other motorists is omnipresent.” Effectively, a person has a duty to themselves to wear a seatbelt and protect themselves from negligent drivers. The Court ruled that given modern safety features, seatbelt laws, and the everlasting dangers of the road, it is a negligent act to not buckle up.
Of course, there is a difference between pre-accident negligence and failing to mitigate damages, which the Nabors Court explained at length. Damage mitigation does not go towards the jury’s determination of liability but towards how much is owed in damages. However, pre-accident negligence does go towards a jury’s determination of liability. Further, if a jury finds the plaintiff is more than 50% liable for causing their own injuries, they will be barred from recovery.
While pre-accident negligence is most easily explained through failing to wear a seatbelt, keep this distinction in mind for other fact patterns where a plaintiff might have breached a duty to protect themselves from harm. For example, other courts have applied the standards discussed in Nabors to cases ranging from similar car accidents to multimillion dollar breach of contract claims. In conclusion, failing to wear a seatbelt or take other steps to protect oneself from harm is not simply a question of mitigation of damages; rather, it can be a complete bar to recovery if such failure was the primary cause of the injuries alleged, regardless of whether the individual caused the subject accident.
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IT'S NOT TOO LATE!
Join us in Dallas TOMORROW, October 14th for the annual Fletcher Farley Texas Law Update! Attendees will have the chance to earn continuing education hours, obtain the latest industry knowledge, and enjoy limitless networking opportunities with other insurance claim professionals, risk managers, in-house counsel and other industry-related partners.
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Congratulations to
Mike Shipman!
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We are thrilled to announce the election of our own Michael Shipman as Executive Vice President of the Texas Association of Defense Counsel. Mike's commitment and leadership within TADC led the group to award him their President's Award to honor his service to this fantastic organization.
Great job, Mike! We congratulate you on this recognition and honor and appreciate all you do. Well-deserved!
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If you would like more information or have questions, please contact:
Doug Fletcher
Firm Managing Partner
214.987.9600
Joanna Salinas
Austin Office:
Managing Partner
512.476.5300
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