Pushing for a Nationwide Ban on Driving While Texting | Dallas, Texas Personal Injury Attorney Blog

Pushing for a Nationwide Ban on Driving While Texting

By Rachel E. Montes posted in Auto Accidents: Drivers Distracted by Text Messaging and Using Cell Phones While Driving on Monday, September 28, 2009

As a general rule, it is not illegal to text while driving in Texas. AAA has initiated a nationwide campaign to pass federal and state laws banning text messaging by all drivers in all 50 states by year 2013. AAA is seeking to implement legislation that will make it illegal to send, write or read text messages or e-mails while driving.

As of September 1, 2009, for the first time, the Texas legislature imposed state-wide restrictions on the use of cell phones and pda’s. The new laws include:
•1. No handset talking or texting while driving are allowed when the school zone is active. Hands-free devices while driving and handset use WHILE STOPPED are allowed as are calls in certain emergency situations.

•2. Teenage drivers are prohibited from using wireless devices while driving. This includes a ban on talking on a cell phone, from sending or receiving text messaging and from sending or reading emailing while driving.

•3. Learners permit holders are prohibited from using handheld cell phones in the first six months of driving.

•4. School bus operators prohibited from using cell phones while driving if children are present.

Research also shows that approximately one in five drivers admit to texting while driving at least once in the last 30 days. The popularity of texting is unquestionable. About two-thirds of Texas teenagers surveyed said they have talked on a cell phone while driving in the past six months, according to the state Transportation Institute. More than half said they had read or sent text messages while driving. A 2007 study said cell phone use was among the primary causes of fatal car crashes among teens. According to CTIA, the number of monthly texting messages reached 110 billion at the end of 2008, a more than 11-fold increase in three years. AAA is asking drivers to go to its website at www.aaafoundation.org/multimedia/headsup.cfm to learn more about its efforts to stop driving while texting.

The Montes Herald Law Group, L.L.P. is a law firm with offices in Irving and Dallas Texas. We are experienced and qualified attorneys who dedicate our practice to the representation of personal injury victims, including victims of car accidents and other cases where people are severely injured through the negligence and reckless conduct of others. Please visit our website at www.MontesHerald.com for more information concerning our law firm and attorneys Rachel Montes and Tom Herald. If you desire a free consultation on a personal injury matter, please call us at (214) 522-9401 or email us at Rachel@MontesHerald.com or Thomas@MontesHerald.com for a free case evaluation.

ANOTHER HEAD-ON COLLISION ON THE TOLLWAY INVOLVING A DRUNK DRIVER | Dallas, Texas Personal Injury Attorney Blog

ANOTHER HEAD-ON COLLISION ON THE TOLLWAY INVOLVING A DRUNK DRIVER

By Rachel E. Montes posted in Auto Accidents: Drunk Driving on Thursday, September 24, 2009

On September 17, 2009, Holly Harding (23) became the 7th victim of a wrong-way driver in 2009 on the Dallas North Tollway. Once again, the accident involved the same two factors:

  • The crash took place late at night or early in the morning. This crash occurred at approximately 3:00 a.m.
  • The wrong way driver, Isidoro Camacho (47) has been charged with driving while intoxicated (DWI). According to Sherita Coffelt with the NTTA, every wrong-way wreck this year has involved an impaired driver. “Wrong way driving, the only common denominator is drunk driving. That’s, that’s what we’re looking at and it’s been the same with wrong way accidents publicized across the nation.”

In addition to the DWI charges which could be changed to charges of Intoxication Assault, Isidoro Camacho may also be charged with driving without a valid driver’s license.

This wreck occurred in the southbound lanes of the tollway where Mr. Camacho was traveling northbound in the southbound lanes. Both vehicles were heavily damaged in the crash. As a result of the crash, Holly Harding was injured and was transported to Parkland Hospital. Fortunately, Ms. Harding survived the crash unlike most of the other people that were struck head-on by drunk drivers.

Montes Herald Law Group, LLP certainly hopes that you and your family are never involved in a head-on collision such as this or struck by a drunk driver. In cases such as this one, if you or a loved one has been injured or killed by a drunk driver, it is very important that you seek competent legal representation immediately to make sure that a thorough investigation is performed, to ensure that evidence is preserved, and to hold all of those involved with the incident accountable to the fullest extent allowed by law.

Many people assume that in cases such as this that it is easy to hold those legally responsible accountable for their actions or that the insurance companies involved will quickly pay this type of claim. However, often times not only is the drunk driver legally responsible for the crash, but so is the bar that served alcohol to the drunk driver to the point that he or she was obviously intoxicated. However, because the focus of the police is on the crash and not where the drunk driver was served alcohol, the police may not even attempt to gather that evidence.

We strongly recommend that if you are the victim of a drunk driving accident, immediately contact Rachel Montes or Tom Herald of Montes Herald Law Group, LLP to discuss your case and to understand your rights. We are experienced and qualified attorneys. We handle drunk driving collision cases on a regular basis. Call us at (214) 522-9401 and visit our website www.MontesHerald.com for more information about our attorneys, our practice areas, and they way we approach cases such as this. While we are located in Irving, Texas, we handle cases such as this all across the State of Texas. Montes Herald Law Group, LLP is a proud supporter of Mother’s Against Drunk Driving (MADD).

TWO MEN DIE IN ROLLOVER ACCIDENT | Dallas, Texas Personal Injury Attorney Blog

TWO MEN DIE IN ROLLOVER ACCIDENT

By Rachel E. Montes posted in Auto Accidents: Fatality Collisions on Thursday, September 24, 2009

John Farris (30) of Fort Worth, and another unidentified man died Thursday afternoon when a 2002 Acura rolled over in western Tarrant County, in a single-vehicle wreck at 10204 Confederate Park Road, also called Farm Road 1886. The Sheriff’s department indicated both men were ejected from the car and they were pronounced dead at the scene. The cause of the crash is still under investigation.

Rollover accidents kill thousands of people each year, particularly in cases where a person is ejected from the vehicle. However, often times it can be proven that the design or manufacture of the vehicle was unreasonably dangerous and that the vehicle could have been designed in such a manner as to reduce the risk of a rollover accident and thereby preventing serious injuries or death. Contact Montes Herald Law Group, LLP to discuss your case if you or your loved one has been injured or killed in a rollover accident.

MAN DIES FROM INJURIES AFTER BEING EJECTED FROM CAR | Dallas, Texas Personal Injury Attorney Blog

MAN DIES FROM INJURIES AFTER BEING EJECTED FROM CAR

By Rachel E. Montes posted in Auto Accidents: Fatality Collisions on Thursday, September 24, 2009

Kent Powell (27) of Decatur man was ejected from a Corvette Saturday in a crash in Watuaga died Wednesday. Police said the driver lost control of the vehicle and hit a telephone pole at about 1:45 a.m. in the 6200 block of Chapman Road. The driver, who was not identified, was taken to a hospital where he was treated and released shortly after.

Rollover accidents kill thousands of people each year, particularly in cases where a person is ejected from the vehicle. However, often times it can be proven that the design or manufacture of the vehicle was unreasonably dangerous and that the vehicle could have been designed in such a manner as to reduce the risk of a rollover accident and thereby preventing serious injuries or death. Contact Montes Herald Law Group, LLP to discuss your case if you or your loved one has been injured or killed in a rollover accident.

THREE KILLED IN NATIONAL GUARD HUMVEE CRASH | Dallas, Texas Personal Injury Attorney Blog

THREE KILLED IN NATIONAL GUARD HUMVEE CRASH

By Rachel E. Montes posted in Auto Accidents: Fatality Collisions on Thursday, September 24, 2009

A National Guard Humvee went airborne on a Texas interstate Wednesday and vaulted into an oncoming lane, triggering a six-vehicle crash that killed a soldier and two other drivers. The Humvee was traveling southbound in the rain on Interstate 35 in the small town of Troy about 11 a.m. when it went airborne, cleared the center barrier and slammed into the oncoming car and an 18-wheeler. The 18 wheeler then crashed into a truck towing a trailer, and then into a garbage truck.
Troy police Sgt. David Lowry told the Temple Daily Telegram that the driver of the Humvee has been identified as Altha Gibson, 21, of DeSoto; the driver of the tractor-trailer rig as Donald Johnson, 44, of Burleson; and the driver of the car as Douglas Ashcroft, 41, of Austin.

Although the specific reasons for the crash have not been released, this case is an important example of why it is important to promptly seek legal advice. In a case where an automobile accident is caused by a member of the military while that person is on-duty, the law imposes a number of unique requirements for the case. While there is still a 2 year statute of limitations, any person who desires to make a claim under the Federal Tort Claims Act for personal injuries or property damage will actually have to make that claim against the United States of America. In addition, it is required under the Federal Tort Claims Act that the person making the claim give written notice of the claim to the appropriate branch of the federal government. The form of the notice is very specific and the details of the notice letter must be provided in a particular and specific detail or you lose the ability to make your claim or to even file a lawsuit for your damages. For this reason, anytime you or a loved one is involved in an accident against any governmental entity, you should immediately contact a lawyer and make sure that the proper notice of claim is given so that your rights are protected.

Contact Rachel Montes or Tom Herald at Montes Herald Law Group, LLP to discuss your case.

Jury Awards Brain Injured Child $11 Million Dollars in Case Against Texas Motor Speedway | Dallas, Texas Personal Injury Attorney Blog

Jury Awards Brain Injured Child $11 Million Dollars in Case Against Texas Motor Speedway

By Rachel E. Montes posted in Premises Liability: Injuries Incurred at a Business on Monday, September 21, 2009

A Fort Worth jury awarded more than $11 million Monday to the family of a boy who was seriously injured after being struck by a car driven by another child at Texas Motor Speedway. The case arose from an incident where Ryan Davies (11 at the time of the 2006 incident) when another boy lost control of a miniature race car while driving across a pit area at the Speedway. The driver of the miniature race car was a 12-year-old boy with a pervasive development disorder experts said is similar to mild forms of Asperger’s syndrome or autism, but he had no restrictions on his activities. In any event, the young driver lost control of the race car and narrowly missed a trailer and several parked cars before slamming into Ryan Davies who was playing football with other boys in the pit area while his parents watched the incident occur. As a result of being struck, Ryan sustained a traumatic brain injury that has left him with significant cognitive deficits.

Because young driver had a disorder, it is not surprising that a large part of the case focused on whether the driver should have been driving and what precautions the Speedway should have taken that would have prevented this incident. Karen Zina and William Davies, the parents of Ryan Davies, brought a claim against Texas Motor Speedway claiming it was negligent and that the Speedway’s negligence proximately caused the wreck because the race track did not provide barricades, signs, a kill switch on the car and proper instructions to prevent an accident. The Speedway however, contended that the young driver and his parents were responsible because they knew that their son had a “mental and/or emotional condition” that made him “incompetent” to drive the car. After a three-week trial in 348th District Court before the Honorable Dana Womack, a jury found that the negligence of the Texas Motor Speedway and the parents of the young driver caused the occurrence. The jury found that the Speedway’s negligence was 80 percent of the cause of the occurrence, while the parents of the driver were each 10 percent negligent. The jury did not find the young driver or William Davies to be negligent.

While the verdict amount may sound high because it was a total of $11.4 million, the majority of the damages were only awarded to compensate the Davies family for the past medical expenses of $1.4 million and $8.5 million in future medical damages. Sadly, the injuries Ryan received are life changing injuries for this young boy. Ryan Davies spent 10 months at Cook Children’s Medical Center recovering from traumatic brain injury. In addition, a neurologist testified that Ryan will never live independently and will need help with daily tasks such as bathing, dressing and eating. In addition, because in cases such as this the jury is not entitled to award damages for attorney’s fees and legal expenses, the damages awarded will be further reduced to cover those fees and expenses.

The jury also determined that parental consent and liability waivers signed by the injured boy’s Denton County parents did not apply to the accident. Frequently, companies to try to avoid being liable for their negligence by hiding waivers and releases in forms in small print. However, Texas law is clear that those types of waivers and releases are not valid.

“We are encouraged that the jury’s award will provide the financial means necessary to provide for Ryan’s good care and treatment for the rest of his life,” Collins said. “We are also hopeful that news of this case will generate support for a heightened level of participant and spectator safety awareness for all facilities that offer motor sports to the young and inexperienced.”

Texas Motor Speedway President and General Manager Eddie Gossage said through attorney Mark Hatten that “Texas Motor Speedway respects the jury’s decision. However, we want to assure our fans that safety is our top priority.”

This case points out that just because the business may try to discourage people from holding it accountable through a waiver or release, often times the waivers and releases are not valid because they are not prepared properly. These issues involved complicated legal analysis that require an attorney to evaluate. However, Texas has specific requirements for these types of releases including the requirement that the language must meet the requirements of fair notice. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993). There are two fair notice requirements:

  1. the express negligence doctrine and
  2. the conspicuousness requirement.

In general, Texas law does not favor the releases which waive liability for causing someone’s injuries in advance of the incident occurring especially where the business providing the release tries to hide the language or prints the language in a manner that the person signing the form is not expected to see the language.

The classic example of a case where the release has been held invalid because the language was not conspicuous was therefore invalid and unenforceable because it was hidden on the reverse side of a sales order. For obvious reasons, the Court held that the language on the back of form was not conspicuous. K & S Oil Well Service, Inc. v. Cabot Corp., 491 S.W.2d 733, 737 (Tex. Civ. App.–Corpus Christi 1973, writ ref’d n.r.e.)

Another classic example of a release that has been held invalid under Texas law is where the language is printed in small print or is imbedded in a form where the person signing the form would not expect to see such language. The Houston appellate court also refused to enforce indemnity language in Scaffold Co. v. Safway Steel Prod., Inc., 570 S.W.2d 225, 228 (Tex. Civ. App.–Houston [1st Dist.] 1978, writ ref’d n.r.e.) because the language appeared in small, light type on the back of a rental form and was surrounded by unrelated terms.

To protect the public and to discourage the use of deceptive efforts to get a release, the Texas Supreme Court adopted a clear rule for determining whether the language in a release is conspicuousness if the release seeks to release a party for its own negligence in advance of the incident. The Court expressly adopted the standard set forth in the TEX. BUS. & COM. CODE ANN. § 1.201(10) (Tex. UCC). The Court noted that this standard for conspicuousness in Code cases is familiar to the courts of this state and conforms to our objectives of commercial certainty and uniformity. See Cate v. Dover Corp., 790 S.W.2d 559, 561 (Tex. 1990). Section 1.201(10) of the Texas Bus.& Commerce Code defines “Conspicuous,” as follows, “with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following:

1. a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and

2. language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off fromsurrounding text of the same size by symbols or other marks that call attention to the language.”

This case also shows how suddenly tragedy can occur and that within a flash of a moment lives are changed forever because of the negligence of other people. We absolutely hope that you and your family never have to face the issues of dealing with these types of significant injuries, especially a traumatic brain injury, but if you are, it is important that you seek prompt legal advice. If you are injured by the negligence of someone else, contact Rachel Montes at (214) 522-9401 for a free, no obligation, case consultation.