Personal Injury Legislative Update

Once every two years, members of the Texas House of Representatives and the Texas Senate get together in Austin for a couple of weeks to drink on Sixth Street (I presume) and write laws that make lawyers’ lives miserable. This year, they didn’t write too many laws dealing with personal injury liability, but the laws they did pass are sure to give lawyers and judges headaches. Beginning September 1, 2021, new rules apply to automobile accidents involving commercial vehicles and the liability of employers during a pandemic.

For commercial vehicle liability, it’s important to understand what the old law was prior to the new law. Prior to the new law, if a commercial driver was driving for Amazon, Wal-Mart, or any other number of commercial carriers, both the negligent driver and the company were sued together under the legal doctrine of respondeat superior. Respondeat Superior is a fancy Latin term that makes the employer liable for the negligent action of the employee as long as the actions were in the scope and course of their employment. (Respondeat superior literally translates to, “let the master answer.)

The new law (H.B. 19) changes the way that the lawsuit is presented to a jury. Under the old rules, the jury was told about the liability of the defendant driver and also determined whether the defendant driver was operating in the course and scope of his employment with the defendant company. Under the new law, the jury only hears about the liability of the defendant driver and the jury will make its damage award based upon the false assumption that the defendant driver will be personally liable for the damages. The jury will likely never know the identity of the employer. This allows an unsympathetic employer (Amazon, etc.) to hide behind a sympathetic driver (a working man just trying to pay his bills).

Interestingly, this law also applies to Uber and Lyft drivers. It will probably take a few years of cases going up on appeal to fully understand the impact on this law as it relates to personal injury cases.

The second major personal injury law that passed this year is Pandemic Liability Protection Act. Under the Pandemic Liability Protection Act an employer cannot be held liable for the transmission of Covid-19 (or any other disease declared a pandemic) except in the following two instances:

  1. Where the business knowingly failed to warn the individual of, or fix, a condition within the business’ control, despite having a reasonable opportunity to do so, with the knowledge that the individual was more likely than not to come into contact with or be exposed to the pandemic disease, and the failure to warn or fix the condition was the cause in fact of the individual contracting the disease; or
  2. Where the business knowingly failed to implement, refused to comply with, or acted in flagrant disregard of the standards, guidance, or protocols put forth by the government that are intended to lower the likelihood of exposure to the pandemic disease, despite having a reasonable opportunity to do so, and this failure or refusal to comply was the cause in fact of the individual contracting the pandemic disease.

This is pretty broad protection for employers. However, personally speaking, I was unsure prior to the enactment of this law how a plaintiff would be able to show with reasonable certainty that he or she contracted Covid-19 from his/her place of employment. The problem with a plaintiff showing he/she got Covid-19 from his/her employer is that, due to the high transmissibility of Covid-19, how can a plaintiff show that he/she didn’t get it at the grocery store, the gas station, or any number of places?

*The opinions and views expressed herein are not offered as legal advice. If you have an issue that requires a personal injury attorney, please contact the Law Office of Shaw Clifford (281) 794-3738 or shaw@shawcliffordlaw.com.

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