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Common Defenses In Wrongful Death Claims


Every year, a combination of motor vehicle collisions, unintentional poisonings, mostly drug overdoses, and falls causes almost 90 percent of the wrongful deaths in the United States. Negligence or a defective or dangerous product causes almost all of these incidents. For example, driver error causes about 98 percent of the vehicle collisions in Texas. Generally, legal claims are the last thing survivors think about in these situations. No amount of money changes what happened.

A Missouri City personal injury lawyer cannot turn back the clock and alter the past. However, an attorney can obtain the compensation these survivors need and deserve. Quite frankly, these survivors need money to pay medical bills and other incident-related expenses. Generally, the medical bills in a fatal injury case exceed $100,000. Furthermore, the compensation helps survivors move on with their lives. At that point, moving forward is the best possible outcome. However, insurance companies do not simply give this compensation away.

Negligence Defenses

Falls and car crashes are usually negligence matters. Drivers have a duty of reasonable care to avoid accidents when possible and always drive defensively. Generally, property owners have a duty of care to provide a safe environment for their social guests or business customers.

Comparative fault may be the most common defense in both these matters. Essentially, comparative fault shifts blame from a tortfeasor (negligent actor) to a victim. Such tragedies often have multiple causes. Driver A may have been speeding when Driver B changed lanes unsafely, or Bill may have been glued to his cell phone when he slipped and fell on an icy sidewalk.

Jurors must listen to the evidence in these cases and divide fault on a percentage basis, such as 50-50 or 70-30. Texas is a modified comparative fault state with a 51 percent threshold. If the victim is no more than 49 percent responsible for the incident, the tortfeasor is liable for a proportionate share of damages.

Usually, assumption of the risk, which is a voluntary assumption of a known risk, is a similar defense in Texas. If Bill didn’t pay attention to a caution sign, jurors must once again divide responsibility on a percentage basis.

Express (contractual) assumption of the risk is a complete defense. People routinely sign gym membership and other injury waivers. Usually, these waivers are illegal take-it-or-leave-it contracts of adhesion.

Strict Liability Defenses

Most unintentional poisonings involve a dangerous or defective product. Basically, products are dangerous if manufacturers fail to adequately warn customers about known side-effects. Drug companies often bury such negative information, so the information doesn’t adversely affect sales.

Note that the warning must be adequate. Serious side-effects, like cancer, cannot be buried on a list of dry mouth, nausea, and other mild side effects.

In the Lone Star State, manufacturers are also strictly liable for any injuries that their defective products cause.

Few affirmative defenses are available in strict liability claims. So, these companies usually challenge the cause of the injury. A Missouri City personal injury attorney asks expert witnesses, like top-notch doctors, to testify about the effects of the drug. However, these companies also call upon “experts” who testify that the most dangerous drug imaginable is as safe as mother’s milk. Jurors often must decide which side is right in these situations.

Reach Out to a Dedicated Harris County Attorney

Injury victims are entitled to significant compensation. For a free consultation with an experienced personal injury attorney in Missouri City, contact the Henrietta Ezeoke Law Firm. You have a limited amount of time to act.


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