Negligence and Damages in Drunk Driving Accident Cases

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This article is the third in a series of articles discussing why the injury lawyers at Tate Rehmet Law Office typically file a lawsuit against drunk drivers when we represent someone who a drunk driver has injured.  This article explains that our lawyers allege both negligence and gross negligence in the lawsuit against the drunk driver.  Drunk driving fits well within the definitions of negligence and gross negligence under Texas and Oklahoma law and it is advantageous to allege both causes of actions.  

Most people are generally familiar with the idea of negligence and understand that it means someone was unreasonably careless and caused damage to another person. Under Texas law, negligence is a cause of action which has a particular definition.  A cause of action is legal jargon meaning proper legal grounds that will support a lawsuit.  Negligence is defined as follows: 

“Negligence” means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

“Ordinary care” means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.

Ordinarily careful people don’t drive under the influence because they know DUI is a major cause of wrecks, injury, and death on our Texas and Oklahoma roadways.  DUI fits nicely within the Texas definition of negligence.  If a jury finds that a drunk driver is negligent, then they can proceed to assess damages for personal injuries.  These include things such as past and future medical bills, past and future pain and mental anguish, and loss of income, among others. 

In addition to negligence, we also allege that the drunk driver is grossly negligent.  Most people understand that gross negligence means the defendant was reckless in their actions and another person was damaged as a result.   Under Texas law gross negligence is defined as follows: 

“Gross negligence” means an act or omission by the defendant,

  1. which when viewed objectively from the standpoint of the defendant at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
  2. of which the defendant has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

DUI fits nicely into Texas’ and Oklahoma’s definition of gross negligence.  DUI carries a risk of serious injury and death to others. The dangers of DUI are widely known and accepted to be true and it is easy to conclude that the drunk driver knew of the dangers at the time, but proceeded with indifference to everyone else on the roadway. Driving while intoxicated is gross negligence. 

Several advantages follow the gross negligence allegation.  The first advantage is that gross negligence opens up an additional element of damage called punitive damages. Punitive means to punish, and when someone is grossly negligent a jury can assess an amount of money in the verdict to punish the reckless behavior of the defendant. Punitive damages are sometimes called exemplary damages and they are only available if a defendant is shown to be grossly negligent.  

The gross negligence allegation can place the defense attorney, the defendant, and the insurance company in an awkward position. The insurance company may take the position that their policy doesn’t cover punitive damages. In that case, the defendant’s attorney has to tell the defendant his own insurance company might not cover all the damages. This can throw a wrench into the relationship and motivate a higher settlement valuation.

For drunk driving injury cases, a jury can award two types of damages to the victim of the drunk driver: economic damages and non-economic damages. These damages apply to cases involving both negligence and gross negligence and are called compensatory damages. Juries can also award additional punitive damages for gross negligence. Punitive damages are generally based on the amount determined for economic damages and non-economic damages. 

 

Compensatory Damages Include Economic and Non-Economic Damages: 

 

Economic Damages

  • Past and future medical expenses
    • Bills from doctors and other medical services
    • Prescription medicines and medical equipment
    • Physical therapy or rehabilitation
    • Cost of making home accessible for related disablement
  • Cost of travel to and from hospital appointments
  • Lost income, lost future earning potential, lost opportunities
  • Rental car expenses
  • Vehicle repair or replacement

 

Non-Economic Damages

  • Suffering, Pain, and Discomfort
    • Depression, anxiety, and mental disorders
    • Emotional distress
    • Loss of enjoyment
  • Physical impairments
  • Disfigurement and scars
  • General inconvenience
  • Loss of Consortium (sexual relations) or companionship

 

Punitive Damages

Punitive damages are meant to deter bad conduct in the future. These damages are only available in cases where there is gross negligence. The amount set for punitive damages awarded may be subject to limitations set by both statutes and constitutional law. There are some exceptions to the statutes, however, which remove the limits on punitive damages for drunk drivers who cause their victims a serious injury.  

The drunk driving accident attorneys at Tate Rehmet Law Offices represent victims of drunk drivers, and our personal injury law firm has over three decades of experience in handling injury cases throughout Texas and Oklahoma. We serve North Texas, South Oklahoma (Texoma), including McKinney, Dallas, Sherman, Durant, Gainesville, Bonham, Pottsboro, Ardmore, Denison, Marietta. If you’ve been injured by a drunk driver or know someone who has, we encourage you to contact us now so we can answer your questions and discuss recovering your losses. You can reach us by phone, chat or email, 24 hours a day, 7 days a week by calling (903) 892-4440 or by using the chat feature linked at the top and bottom of this webpage. Or you can use our contact form to send us an email.

 

The Repetitive Nature of Driving Under the Influence

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This article is part of a series on driving under the influence (DUI) which highlights numerous reasons why our firm almost always sues the drunk driver.  This article focuses on some of my experiences suing drunk drivers and how I came to join Mothers Against Drunk Driving (MADD).  What I’ve learned through these experiences is that the vast majority of drunk drivers drive under the influence on a regular basis.   Over time, this means that a person who is arrested for DUI or causes a wreck when drunk has most likely driven under the influence hundreds or even thousands of times before they got caught.

Years ago, after suing a few drunk drivers, I sued a drunk driver who hit our client and it was the drunk driver’s second offense.  He had been convicted of DUI some years before in my county.  I knew that all the criminal judges in my county sentenced every drunk driver who was convicted of DUI in the same fashion, and the sentence included an order to attend a short seminar called the Victim Impact Panel. Most judges in Texas and Oklahoma order drunk drivers to attend a Victim Impact Panel in their county.  The Victim Impact Panel (VIP) is a presentation which is organized by Mothers Against Drunk Driving. MADD recruits a victim who has either been seriously injured by a drunk driver or had a family member killed by a drunk driver to tell everyone convicted of DUI or DWI about the victim’s injuries or loss.

Although I had not attended the VIP in my county, I knew there was most likely a tragic story that was told to everyone convicted of DUI.  I knew the drunk driver who I was suing heard that story because he was sentenced to attend the VIP after his first offense. Even though he heard that story, he chose to drive under the influence again.  I wanted to know what the drunk driver heard at the VIP so I could force him to admit that he knew all the dangers associated with driving under the influence but chose to do it again.

The next Saturday I went to the VIP to hear the presentation and it was excellent.  Ron Barton is the victim who puts on the VIP in my area and his story is very compelling.  His daughter and her grandmother were horribly killed by a drunk driver. I prepared for the seminar by reading MADD materials which discuss the costs of DUI in terms of criminal fines and fees.  I knew those types of fines and fees are really small compared to some of the civil jury verdicts rendered against drunk drivers.  After the seminar, I spoke to Ron and he invited me to join MADD and speak at the next VIP about the civil liability associated with drunk driving.  I’ve been speaking monthly at that seminar ever since.

When reading MADD’s materials there was one statistic that jumped off the page.  The statistic had to do with how many times the average drunk driver drives under the influence before they get arrested the first time.  According to MADD, the average drunk driver drives under the influence 80 times before they get arrested.  I found this number hard to believe for a few reasons.  I couldn’t understand how MADD came to the conclusion.  What data were they relying upon to conclude the average number of times a person drove drunk?  I also found the stat hard to believe because the number was so high.  How can someone drive drunk 80 times?

At the next VIP, I put the question to the panel of attendants.  How many times did they think the average drunk driver drives under the influence before they get arrested the first time?  A middle-aged lady raised her hand and said, “Hundreds.” I asked her to tell me about her answer and she responded honestly, telling the group she had been drinking wine on a regular basis since high school and had driven under the influence hundreds of times and never got caught until she was in her forties.

I’ve continued to ask that question at every VIP over the years and the panel members always give me the same response.  The number is usually greater than one hundred and lower than one thousand.  The VIP attendants (who all recently got caught driving under the influence) are telling me on a consistent basis that the MADD statistic is valid.  But how did MADD get the stat?

The answer is that the stat is derived from the CDC (the Center for Disease Control and Prevention).  The CDC conducts a systematic study of drunk driving because it accounts for a significant percentage of traffic wrecks, injuries, and fatalities.  In 2013, for instance, over 10,000 people died in traffic wrecks where one of the driver’s blood alcohol content exceeded .08 g/dl (this BAC defines drunk driving per se in many jurisdictions). As part of their study, the CDC conducts large-scale random phone surveys asking people across the US how many times in the last thirty days they have driven when they were impaired by alcohol.  From this data, the CDC can estimate the number of times drunk driving occurs across the population.  The number is shockingly high.  In 2015, the CDC estimated that over 121 million episodes of DUI occurred.  Every year the CDC conducts a phone poll and comes to a similar conclusion.  MADD bases its stat on this research.

The CDC survey and the honest answers from the VIP attendants caused me to change my mind about the MADD stat.  Not only do I believe the stat, I think it’s low.  There is a substantial group of people in any given community that drive under the influence frequently.  People in this group have driven under the influence on a regular basis for years, most likely weekly or several days a week.  They are fortunate to have never been pulled over or hit someone or something, and so they believe that they can drive drunk and make it to their destination.  They have driven under the influence so many times that they believe driving under the influence is permissible.    If you have been hit by a drunk driver, you can rest assured this isn’t the first time the person drove under the influence.

 

About the Author

Christopher Rehmet is the lead litigator at Tate Rehmet Law Office and has been practicing the area of personal injury for twenty years. Prior to practicing as a civil litigator, he was a prosecuting attorney in a District Attorney’s office.

 

 

 

 

 

 

Why Our Injury Lawyers Sue Drunk Drivers

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This article is one in a series of articles explaining why we, as civil lawyers handling personal injury and auto accident cases, almost always sue the drunk driver when we represent the victim. Our primary objective is to recover maximum compensation for the victim’s personal injuries.

We sue the drunk for several reasons.  First, the insurance adjusters who are initially assigned to handle the case extend low offers to victims of drunk drivers.  Second, drunk driving fits well within the definitions of both negligence and gross negligence under Texas law.   Third, intoxicated drivers often do not get adequately punished by the criminal system.  Fourth, there may be an additional civil lawsuit that can be brought against a bar, called a dram shop cause of action.  Fifth, once the drunk driver has pleaded guilty, we can depose them under oath. Finally, jury verdicts against intoxicated drivers can be quite large.

This article addresses the first reason we always sue the drunk driver: the initial insurance adjuster usually makes a low offer before a lawsuit is filed.

In my experience as a lawyer representing DWI victims, most of the large personal auto insurance carriers make low offers to resolve the injury claims caused by DUI and DWI.  This is counterintuitive, but it happens frequently.  It would seem like the initial adjuster would be motived to resolve the injury claim upfront and offer more money in order to get a release in favor of the drunk driver.  But this rarely occurs.  In fact, the first insurance adjuster might make offers of less than the medical bills.  These low offers do not reflect the value of personal injuries caused by drunk drivers.

For instance, we handled a case where a drunk driver hit another car in a parking lot, injuring the driver.  The wreck was not a large collision, the property damage was minimal, the injuries were essentially soft tissue in nature, and the bills were fairly low.  While this was not a case involving serious injury, it illustrates the low offers we often see on DUI cases.  Before filing the suit we tried to resolve the victim’s personal injury claims against the drunk driver by negotiating with the drunk driver’s insurance company.  The insurance adjuster offered less than our client’s medical bills to settle the personal injury claim.

In response, we sued the drunk driver.  There are many reasons to sue the drunk driver, and one reason is that a new adjuster is often assigned to handle the claim after the suit is filed. The first adjuster is usually replaced by a new litigation adjuster.  The litigation adjuster may have a more realistic evaluation and realize that the drunk driver has a large amount of liability. In addition, a civil lawyer is assigned by the auto insurance carrier to defend the civil case. This civil defense lawyer will most likely know about the size of civil jury verdicts rendered against drunk drivers, which can be quite large.  The new adjuster and lawyer, along with the pressure of the civil litigation, will cause the insurance company to re-evaluate their offer, and that is exactly what happened in our case against the drunk driver that hit our client in the parking lot.

In that case, even though the drunk driver had not pleaded guilty, the investigating police agency released their investigation to us in response to a subpoena. Those records and videos showed the drunk driver was very intoxicated, someone was passed out the back seat of her car, and she was not cooperative with the police officer. We gave that evidence to the drunk driver’s lawyer and requested that the drunk driver give a deposition.  The insurance company re-evaluated the case and offered our client 100% of the drunk driver’s personal injury insurance policy limit in exchange for a release of the drunk driver.

That case was resolved for several reasons, all of which stemmed from the lawsuit.  The point of this article is that when we sue to recover for the victim of a drunk driver, a new adjuster and lawyer are assigned to handle the claim.  They will most likely evaluate the personal injury claim with a more realistic valuation in the context of litigation.

If you have been hurt by a drunk driver please call our firm at (903) 892-4440.  The consultation is free and we can discuss suing the drunk driver for your personal injuries.

 

About the Author

Christopher Rehmet is the lead litigator at Tate Rehmet Law Office and has been practicing the area of personal injury for twenty years. Prior to practicing as a civil litigator, he was a prosecuting attorney in a District Attorney’s office.