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Neal Cannon &
    Associates, P.C.
6363 Woodway Drive
Suite 910
Houston, Texas 77057
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Neal Cannon & Associates, P.C.
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CannonLaw Newsletter - October 2004

WRONGFUL DEATH LAWSUITS

At one time or another, most of us will have to deal with the inconvenience of having suffered some minor injury: slipping on a spill at a store and twisting an ankle, a fender-bender in afternoon traffic, and the like. However, sometimes we are faced with a far more serious situation, such as injuries that lead to a family member being killed. In such cases, if someone else is responsible for the injuries, a wrongful death suit can be filed.

What Is a "Wrongful Death" Suit?

A wrongful death suit is a legal claim available to certain family members when a person is killed. In Texas, wrongful death suits exist because the Legislature has passed a law permitting them, and so these suits are controlled by and limited by this law. A wrongful death suit is brought by the family of the deceased for the losses family members have suffered because of the death. In contrast, a survival suit is brought by the estate of the deceased, and it is the legal claim that the deceased himself would have had were he alive.

Does Every Death Result in a Lawsuit?

No. Just because a person dies does not necessarily mean that the death is "wrongful." Instead, a wrongful death suit is proper only where someone else causes the person's death through a wrongful act, neglect, or carelessness. In other words, a suit for a wrongful death should be filed only if the death is caused by the intentional acts or negligence of someone else.

Who Can Recover in a Wrongful Death Suit?

A wrongful death suit is intended to compensate the immediate family of a person who is unexpectedly killed. The law provides that only a limited group of people may recover damages in a wrongful death suit: the deceased's surviving spouse, his children, and his parents. Other close family members, such as siblings and cousins, may not recover for a wrongful death.

How Can Money Repair the Loss We Suffered?

It can't. No one would trade the life of a family member for a check, no matter how large. However, the fact is that there are some kinds of losses the law cannot fix, such as death. The damages that can be recovered in a wrongful death suit are not intended to "replace" the deceased, but instead are intended to make his loss more bearable by compensating the family for the loss as best we are able.

What Should I Do?

It is important not to delay unnecessarily--there are laws called "statutes of limitations" that require lawsuits to be filed within a certain period of time. If a family waits too long to file a wrongful death suit it may lose the right to file suit at all.

WRONGFUL DEATH DAMAGES

What kinds of damages can be recovered in a wrongful death case? Depending on the facts of the case, you may be able to recover:

*Out-of-pocket expenses caused by the death, such as medical treatment provided before death and funeral expenses.

*The loss of the earnings the person would have likely earned between the time of his death and his retirement.

*The loss of any other benefits the person would have been able to provide if he had not been killed, such as pension benefits or medical coverage.

*The pain, suffering, and mental anguish experienced by certain surviving family members.

*The loss of care and companionship the survivors suffer because of the person's premature death.

*Exemplary or punitive damages, which are additional damages imposed to punish people who commit especially bad acts.

YOUR RIGHTS AS A TENANT

Unfortunately, disputes between landlords and their tenants are not uncommon, and because they involve tenants' homes they can often become emotional. Getting into a lawsuit with your landlord is never fun, and so, in order to prevent unnecessary disputes, it is helpful to know your rights as a tenant.

The relationship between a landlord and a tenant is governed by the terms of the lease. Most landlords will insist that you sign a written lease. Before signing, read the lease carefully. Generally, all of the lease terms, including the amount of rent, the place where payment is due, the procedure for requesting repairs, etc., can be enforced as written.

A landlord has the obligation to provide tenants with certain things. For example, a landlord must insure your "quiet enjoyment" of the property you lease. "Quiet enjoyment" means that you not only have a right to peace and quiet but it also means that your landlord cannot evict you or otherwise disturb your right to live in peace as long as you pay your rent and follow the rules. Also, a landlord must repair conditions that materially endanger a tenant's health and safety, or that make the property unfit to inhabit. A landlord must do certain things to protect tenants, such as providing residential tenants with smoke detectors, deadbolts on exterior doors, and a peephole.

The question of repairs is often contentious. It is important to understand that, even if a landlord refuses to make a necessary repair, you cannot simply not pay your rent. Instead, you must mail the landlord written notice of the problem by certified mail and give him a chance to fix it. If your landlord still refuses to make the repair, you may be able to end the lease, repair the problem yourself and deduct the amount due in rent, or have a court order that the repairs be made.   Don't attempt any of these remedies without professional help.

A landlord must refund to you any security deposit you have paid, unless he has a valid reason for keeping some or all of it. A valid reason for keeping a deposit includes paying to repair damage to the property, although the landlord cannot charge you for normal wear and tear. Your landlord must refund your deposit within 30 days after you move out, as well as provide you with a list of deductions and the reasons for them. You are required to give him your forwarding address in writing.

UNINSURED MOTORIST INSURANCE--A GOOD IDEA

Even though all Texas motorists are required to have automobile insurance, it is hardly a secret that not all drivers obey the law. To protect yourself if you are hit by another driver who does not have any insurance, or who does not carry enough insurance to pay for all of the damages his negligence causes, it is a good idea to carry uninsured and underinsured motorist insurance coverage, known as "UM/UIM."

UM/UIM insurance covers you for personal injuries and some other kinds of damages caused when you are hit by a person with no insurance or not enough insurance. If the driver who hits you does not have insurance of his own, UM/UIM coverage is the best way to protect yourself and those riding with you from the damages these uninsured motorists cause. The only alternative is to sue the uninsured motorist, and a driver who does not have enough money to afford insurance usually does not have enough money to pay the judgment you get if you win the lawsuit.

For the protection it provides, UM/UIM coverage is a wise insurance buy. If you do not already have UM/UIM insurance, contact your insurance company about adding it to your policy. If you already carry UM/UIM insurance, it would be wise to make sure that you have enough to protect you from an unexpected loss.

BICYCLE SAFETY

As a form of exercise or transportation, bicycles are becoming ever more popular. However, with the increase in the number of bicycles using the roads, there is also an increased danger of an accident or injury. When a car or truck has a collision with a bicycle, the bicycle rider usually loses, no matter who legally had the right of way. Bicycle riders should take extra care to obey the following safety tips:

Remember: Bikes Are Vehicles, Too

Legally, bicycles traveling on a road are required to be treated the same way as any other vehicle traveling on the road. This means that bicyclists need to obey the same laws as other drivers. Don't run red lights, change lanes without signaling, or commit other infractions. If you would not do it in a car, don't do it on a bike.

Wear a Helmet

The easiest way to protect yourself is to always wear a helmet when you ride. Some jurisdictions require all riders to wear helmets but, even where it is not required, wearing an approved helmet can significantly reduce the chance of serious head injuries in the event of an accident.

Be Visible

Because bicycles are much smaller than cars and trucks, it is important to make sure that others using the road can see you. Make sure that your bicycle has reflectors on the front and back and even on the wheels. When riding at night, wear light-colored clothing and consider using a light.

Be Aware

The best safety advice is to be aware of the conditions around you and be careful when riding. Always look both ways when entering a street and stay on the correct side of the street when riding. Keep a lookout for drivers who may not be looking out for you. Like other drivers, bike riders should ride defensively.

CASE BY CASE

Tire Explosion Could Have Been Prevented

Brad was a mechanic called to a gravel mine to repair the brakes on a dirt hauler. He was heating the rim of the wheel hub with a torch to get it unstuck and the heat caused the tire to explode, horribly injuring--and eventually killing--him. Brad's close-knit family was devastated and sued the mining company for failing to provide proper training.

Although Brad was an experienced mechanic, the evidence showed that he had no warning of the danger because the tire did not smoke, get hot, or do anything that would indicate a problem. The mining company was well aware of the potential danger of removing a tire using heat, but the company did not warn Brad to be careful. In fact, the mining company had not even trained its own workers about the dangers of using heat to remove a wheel.

The case went to court, and the Texas jury awarded the family of the mechanic over $160 million.

DANGEROUS DRUG ALERT

Zyprexa (also known as Olanzapine) is a medicine that is approved for use on people suffering from schizophrenia and bipolar disorder. Its common side effects are fairly mild and include drowsiness, weight gain, restlessness, constipation, and fatigue. However, in the time since Zyprexa has been approved for use in humans, several other, more serious problems have surfaced.

Recently, the FDA has found that the use of Zyprexa (and other similar dugs) results in an increased risk that the user will suffer from diabetes and hyperglycemia. To make the public aware of this danger, the FDA has directed that a warning mentioning these risks be included in the information about Zyprexa.

Although not approved for this use, Zyprexa is also used to calm patients (often elderly ones) who suffer from dementia. In order to determine whether this use is safe, the manufacturer began conducting clinical trials and discovered another risk. According to a letter issued by the drug's manufacturer, its studies have shown that elderly patients who are given Zyprexa have a "significantly higher" incidence of stroke, more than twice as often as other patients in the studies who were not given Zyprexa.

THANKS FOR THE REFERRALS

Despite this modern age of marketing and advertising, the best source of our new business is word of mouth. We are grateful that many of our clients and friends feel confident in recommending our firm.


© 2006 Neal Cannon & Associates, P.C.