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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 - September 2006

LIABILITY FOR THE CARELESS DRIVING OF OTHERS

 

Are owners of cars liable when they loan their cars to someone who then drives negligently? Are husbands liable for the careless driving of their wives? Mothers for their sons? What if the negligent driver is drunk or does not have a valid license?

Duty of Care

Usually, the answer is “no.” Although many people feel morally obliged to look out for the safety and welfare of others, the law has generally proven itself reluctant to require people to take affirmative steps to protect others, even where they are able to do so. This means that, in order to be held legally liable for another person’s injuries, the law generally looks for some reason to impose a specific duty to be careful—some reason other than just because care is required. Without a legal duty of care, no legal liability for negligence exists.

In connection with the ownership of a car, this means that, while husbands, wives, sons, and daughters may share their lives and their households, they usually do not also share liability for each other’s negligent driving. Even if a parent or a spouse has given another family member permission to use a car, and even if the parent or spouse is the owner of the car, and even if the car is on a policy of insurance with other family cars in the parent’s or spouse’s name, the parent or spouse has no automatic liability for the unexpected negligence of the driver. Likewise, loaning a car to a friend does not make you liable for the friend’s unexpected negligent driving.

Negligent Entrustment

However, the key word is generally: It is possible for a car’s owner or a family member to be held legally liable if he negligently loans a car to someone he has specific reason to know may drive carelessly. This liability falls under the category of “negligent entrustment,” which is the act of entrusting an automobile that you own or that you control to someone else whom you have reason to know should not be driving.

For example, if you give your car keys to someone else and you know that that person is not licensed to drive or that he is too drunk to drive safely, or even if you know that he speeds everywhere he goes, you may be found to be liable if that person then causes a collision. The reason that the law imposes such liability is because it is very easy to avoid the damage that an incompetent or reckless driver might cause, and a reasonable person would not lend his or her car to a minor or a drunk.

In Texas, the scope of liability for negligent entrustment is limited. In order to be liable, it must be proven that you knew of the danger that the person to whom you loaned the car posed: If you knew he was drunk, you might be liable. Additionally, this knowledge is measured as of the time you entrust the car to the other driver. The fact that the driver then takes the car and causes an accident does not show that you should have known the driver was incompetent, because the collision did not occur until after you loaned him the car.

Finally, it must be the negligence of the person to whom you loaned the car that causes the injuries. For example, if the person you gave the keys in turn gives the keys to someone else, you are probably not going to be found liable unless you knew that he was likely to allow others to drive your car.

Passenger Liability

Similar rules apply in cases involving claims brought by passengers, whose liability for the driver’s bad driving is limited. Merely being present in a car with a negligent driver is not enough to make a passenger liable to others, unless the passenger contributes to the collision by his own acts, such as by grabbing the steering wheel and causing the driver to drive in an unsafe manner.

Although passengers are generally not liable to people the driver hits, they probably do have some responsibility for ensuring their own safety. For example, if a passenger gets into a car with a person he knows, or should know, is too drunk to drive, and the passenger is then injured in a collision, the jury might find that the passenger is responsible for some or all of the injuries he has suffered, because riding with an impaired driver may itself be a negligent act. As is the case with negligent entrustment, the central question will be whether the passenger was actually aware of the danger.

The moral of the story is “be careful.” Although you are not liable for injuries caused by your car just because you own it, you should take reasonable steps to prevent someone who should not be driving from using your car, and to protect yourself if you are the passenger in someone else’s car. Otherwise, you might find yourself being held liable for someone else’s bad driving.

CANDLE SAFETY

 

Believe it or not, the sale of candles in the United States is a $2 billion a year industry, and 70% of families say that they burn candles at least once a week. However, with all of those candles comes something else: fires. According to recent data, the number of fires caused by candles has more than doubled in the past 10 years.

In order to minimize the danger presented by burning candles, keep the following tips in mind:

* Make sure that candles are kept at least one foot away from any combustible materials, such as curtains and bedding.

* Make sure that candles are positioned away from breezes in order to prevent them from being blown over, and also to prevent flammable materials from being blown into the flame.

* Keep candles (and matches and lighters) out of the reach of children and pets.

* Use candles only if they are placed in holders that are not flammable, such as glass or metal.

* Blow out candles before leaving the house or going to bed, or even if you will be out of the room for a while.

* Blow out candles before they get too low, and stop burning candles before they reach the bottom of their containers or holders.

* Do not walk around with a lighted candle, or a candle you have just blown out, in order to avoid spilling hot wax, burning yourself or possibly causing you to drop the candle.

* Do not light candles if you are using a kerosene heater or lantern, or if there is any danger of a gas leak.

In addition to presenting a fire hazard, burning candles also generate soot, which can stain your home and belongings. To keep the amount of soot to a minimum, trim all candle wicks before use so they are only 1/4 inch from the candle top.

Finally, every year candles are recalled by their manufacturers, usually for some fire safety issue. This is especially true with scented candles and candles that have decorative objects imbedded in them, because the scents or embedded objects often present special fire hazards. To find out which candles have been recalled, check the website of the Consumer Products Safety Commission, www.cpsc.gov.

Taking these few simple steps will allow you to enjoy the beauty of candles without the danger. Don’t let candle safety become a burning issue in your home.

PREVENTABLE MISTAKES IN NURSING HOMES

 

Any time a person is prescribed one or more drugs, there is a danger that the patient will suffer what is called an adverse drug event, that is, some injury resulting from the use of the drug. However, according to a study published in the American Journal of Medicine this year, nursing home residents are especially susceptible to adverse drug events, and they suffer almost 2 million such events each year, about 86,000 of which are life threatening. Most disturbingly, the authors of the study estimate that 70% of these adverse drug events are preventable.

There are a number of reasons for the high number of adverse drug events in nursing homes. Residents of nursing homes are often on multiple medications, increasing the chance of one drug interacting with another in an unexpected or dangerous way. Also, doctors sometimes make errors in prescribing drugs for a patient, or the patient may not be properly monitored by the nursing home staff to make sure that a prescribed drug is not causing adverse side effects. Finally, there is always the chance that a mistake will be made in actually administering the drug—giving the patient the wrong pill or giving the patient the correct pill in the wrong way or at the wrong time. Any of these mistakes can lead to an adverse drug event.

Given that most nursing home patients and their families are not doctors or pharmacists, it can be difficult to prevent adverse drug events. However, you can make sure that a loved one who lives in a nursing home is treated by a competent doctor, and you can ask what rules are in place to prevent mistakes in dispensing drugs and to help people who suffer an adverse drug event. If you know someone who was injured or even died because of an adverse drug event, call our office. We may be able to help.

DANGER: CONSTRUCTION ZONE!

 

Hundreds of motorists die in construction and maintenance zones annually. Most crashes are rear end collisions. A few tips can make construction zones safer for everyone:

Follow the posted speed limit.

* Focus on the road, not the construction.

* Keep three seconds of distance between you and the vehicle in front of you.

* Stay calm and pay attention.

* Give yourself extra time to arrive at your destination.

HMO FOUND LIABLE FOR SUBSTANDARD CARE

 

Millions of Americans have their health insurance though HMOs, which are popular because they are thought to provide health care at a lower cost than other kinds of insurance. However, a recent case from Texas reminds us that with lower costs comes reduced service, and insured individuals can sometimes fall between the cracks.

The case involved the care provided to a woman who suffered from kidney disease. Joan underwent an operation to treat hardening arteries, and after the operation she was prescribed drugs that made her kidney condition worse. Adding to the problem was the fact that her doctor failed to perform the tests that would have told him of her kidney problem. Eventually, Joan died.

Joan’s family sued her doctor and the HMO. The case against the doctor was fairly straightforward—he provided his patient with poor quality care that hastened her death. The claims against the HMO were more subtle. At trial, Joan’s family argued that the HMO had agreed to provide its insureds (particularly those suffering from chronic diseases, like Joan) with a particular level of care, and that it failed to do so. In support of this claim, the family pointed to evidence showing that the HMO promised that people suffering from chronic illnesses would get a case manager to coordinate their care. In Joan’s case, the HMO had provided her with a case manager in the past, but later took him away. The family asserted that the HMO knew that Joan had chronic kidney problems, but it did nothing, and that, because there was no one coordinating Joan’s care, there was no one to catch the doctor’s oversight.

The jury accepted this argument and found that the HMO was 35% responsible for Joan’s death. Joan’s family was awarded over $4 million. Although the appellate courts have not yet reviewed the case, this verdict sends a strong message to HMOs to do as they promise, and to make sure that patients get the care that they deserve.


© 2006 Neal Cannon & Associates, P.C.