May 22, 2015

Drunk Drivers Crackdown Over Memorial Day Weekend

Don't Drink and Drive Logo

Texas State Troopers, Tarrant County Sheriff's Deputies and City Police Departments Are Participating

During a traffic stop, drunk drivers who know they are above the legal limit often refuse to submit a breath sample, opting for driver license forfeiture to avoid providing evidence in a DWI prosecution. This evasive tactic won't work this weekend. 

Texas Department of Public Safety troopers, Tarrant County sheriff's deputies and all city police departments have implemented a no refusal policy for this Memorial Day weekend. From 9:30 Friday night until 5:30 Tuesday morning, Texas police officers are using search warrants to compel drivers suspected of intoxication to submit to a breath or blood test. 

What No Refusal Means for Drunk Drivers

Texas law imposes penalties on any driver who refuses to submit to a Breathylizer upon request during a DWI traffic stop. But some drivers are willing to gamble when faced with a potential DWI charge. Because many drunk driving stops are made on the weekends or late at night, judges are rarely immediately available to sign a search warrant allowing a police officer to compel compliance. This weekend, judges are on call to issue expedited warrants and centralized blood-draw locations have been established to handle high numbers of samples. Police are thus able to compel a blood sample from anybody who they suspect of drunk driving who has refused to do so voluntarily. 

No Refusal Keeps Dallas-Fort Worth Roads Safe

Memorial Day is a special day. We celebrate our service members who sacrificed their lives for our country. With spring in the air, many of us plan to spend extra time with our families and friends. Barbeques, picnics and family gatherings can make the day a truly inspiring celebration. 

Unfortunately, some people will get behind the wheel after drinking, putting all our lives in jeopardy. Maybe knowing the chances of getting a DWI this weekend are exceptionally high will dissuade some drunk drivers. And, with police out in force, drunk drivers have a much greater chance of being arrested before they can injure others. 

1,337 victims died in drunk driving accidents in Texas in 2013. Frighteningly, many drunk drivers don't stop even after multiple arrests or wrecks. 

With the historically higher rates of DWI accidents during Memorial Day weekend, we are happy to see this heightened level of enforcement. No refusal keeps Dallas-Fort Worth roads safe so we can all enjoy the holiday!

Bill Berenson Helps Victims of DWI Crashes

During the past 35 years, I have helped countless victims of DWI accidents. I am a strong advocate for the rights of victims and a supporter of MADD and applaud campaigns that get more drunk drivers off the roads.

If you were injured by a drunk driver, call my Dallas-Fort Worth law firm. I am available to help you recover damages and pursue justice in your case.

May 20, 2015

Takata Admits Its Airbags Are Defective - 15 Years Later

airbags deployed

Recall Is Largest, Most Fraudulent in History

The airbag was considered one of the most effective auto safety advances in auto manufacturing history. But over 15 years ago, they began exploding without warning, killing at least six people and seriously injuring at least 139 others. Takata, the company that produced most of them, denied it was at fault.

But pressured by over 100 lawsuits, the National Highway Transportation Safety Administration (NHTSA), fines, and loss of revenue, Takata admitted its airbags were dangerously defective yesterday. It also agreed to recall another 17 million vehicles. This brings the total number to a shocking 34 million -- one out of seven of the vehicles on U.S. roads. Takata still effectively denies that it was at fault. 

This is the largest recall in automotive history, surpassing even the G.M.ignition switch debacle. Both companies knew about their defective products for many years and engaged in massive fraud which endangered drivers all over the world. I've blogged about these corporate cover-ups and am glad that the public will be better protected.

Takata Aware of the Dangers Since 2000

When there is an impact, gas inside a canister is ignited which rapidly inflates the airbag. Takata's airbags contained an ammonium nitrate propellant that is commonly used in fertilizer -- think back to what happened to the town of West two years ago when it blew up.  But it is cheaper to use than the previously used propellant based on tetrazole. Unfortunately, it is highly risk because it is sensive to moisture, obviously a problem in humid states like Texas. The canister can quickly heat up, then violently explodes.  This sends sharp metal fragments flying into the interior of the vehicle like shrapnel. The shards of metal can lacerate, blind, or even kill the driver and front seat passenger. Other drivers on the road are obviously at risk if a driver goes out of control. It's a nightmare waiting to happen.

Continue reading "Takata Admits Its Airbags Are Defective - 15 Years Later" »

May 19, 2015

Woman Thrown Through Windshield in Horrific Crash

Why Don't People Wear Their Seat Belts?

A 60-year-old woman is in serious condition after flying halfway through the windshield during an accident outside of Houston. The accident occurred around 11 p.m on Saturday. A woman driving a gray pickup truck was turning left on a busy highway in Baytown, despite a flashing yellow light, and turned in front of an older model pickup truck being driven by a 45 year-old man. The pickups collided head-one and one of the trucks to roll into a ditch. The passenger of that vehicle was not wearing her seat belt and flew through the window. 

Today I spoke to a woman whose son had pulled off the road to text but when he drove back on to the highway, he hit a Jeep, causing its unbelted driver to be ejected. The man was unfortunately killed in north Forth Worth last weekend.

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Yesterday, after a hard fought mediation, I was happy to finally hand a large settlement check to my seat belted client who had been seriously injured in this near fatal crash on north of Fort Worth. My client's car shown to the left drove into an 18 wheeler trailer at 65 miles an hour when it suddenly pulled across the road in front of her, then stopped, The truck company initially denied liability. Two years later, my poor client is still injured and has to pick out shards of glass from her face and body, so I can only imagine the trauma that the Baytown woman will go through.


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May 18, 2015

Injury Lawyers To Be Put Out Of Business By Automated Cars?

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Related Problem: The Technology is Being Developed Faster Than the Law

Most accidents are due to human error and/or recklessness. With automated vehicles, the human factor would be possibly taken out of the equation. Crashes caused by drunk, stoned, distracted, overtired, speeding, and bad drivers may be a thing of the past if self-driving cars are on the road.

With automakers and technology companies competing to put a fully automated car on the market first, consumers may have access to these vehicles in the near future. My Lexus can already park itself without much assistance. And other manufacturers, including Mercedes-Benz, Infiniti, Tesla, Audi and Cadillac, also have partially automated vehicles set for release within the year. Of course, automations have been in cars for years, such as cruise control and antilock brakes,which have have improved safety and made driving less stressful -- but possibly made our roads even more dangerous.

The new technology is currently being applied to tractor-trailers that allow these large, heavy trucks to stop on a dime.

Is an Automated Vehicle Legal? 

What does the law have to say about this new technology? New York has a law that requires a driver to keep one hand on the steering wheel, but that was passed in 1967 before automation was possible. Otherwise, the law in most states -- including here in Texas --  is silent on the issue. Lawmakers simply didn't envision the "Jetsons " vehicle would become reality this soon. 

In a statement to the New York Times, a Volkswagen governmental relations VP gave her assessment of the legality of automation: "Where it's not expressly prohibited, we would argue it's allowed." 

University of South Carolina law and engineering professor Bryant Walker Smith warned, "It's not just what's on the books; it's what's enforced. If a police officer sees you driving down the road with no hands, he could determine that's reckless and still give you a ticket. Individual officers have a tremendous amount of discretion."

Texas Auto Automation Pilot Bill Hits Roadblock

Texas Senator Rodney Ellis proposed legislation last month that would direct the Department of Public Safety to implement automation safety regulations, including notification by companies planning to put automated vehicles on Texas roadways, special licensing of drivers of automated cars and a requirement that a human drive the vehicle. Interesting questions arose during the Senate hearing on the measure, such as who would be liable in a crash caused by an out-of-control automated vehicle and would law enforcement have authority to issue a traffic citation to a driverless car. 

Google and Alliance of Automobile Manufacturers opposed the legislation, as did several lawmakers, citing concerns that regulation would hinder advancement of the technology and create a patchwork of legality, and the law was not brought to vote this session.

The NHTSA Tests Safety of Auto Drive Technology

The National Highway Traffic Safety Administration is currently testing the safety of automated vehicles. The federal agency is exploring how the technology relates to human error and whether the system can adapt to real-life scenarios on the road. The NHTSA recommended that states only allow testing of the automated vehicles, until safety can be fully assessed.

May 15, 2015

SUV Crashes into Dallas Apartment Building, Killing Three

Speed and a Medical Emergency May Have Been Factors

An SUV slammed into an Oak Cliff apartment building Wednesday morning, killing the driver and two passengers. The accident occurred on the 1700 block of West 10th Street. Witnesses estimate the blue Durango Esparza was travelling at 70 to 100 mph when it struck a white car parked in front of the apartment complex. The force of the impact sent both vehicles airborne into the building. The SUV landed upright on the porch and partly partly crashed through the front units on the first and second floors. 

All three of the SUV's occupants were killed. They have been identified as 56 year-old Lucinda Rosas De Esparza, 66 year-old Evelina Maltos and 93 year-old Paul Maltos. 

Fortunately, none of the building's tenants were injured. But in a frightening what-if, the vehicle came to rest inches from a baby's crib, but the family wasn't home. Another tenant was jarred awake, but escaped uninjured.

Sadly, Ernest Esparza who lives just two blocks from the scene, recognized his mother's vehicle while watching television coverage of the accident. He rushed to the scene, but unable to get any news of his mother, went home, where police officers notified him of her death. 

Continue reading "SUV Crashes into Dallas Apartment Building, Killing Three" »

May 13, 2015

G.M. Ignition Switch Deaths Tops 100 - Not 13 As First Claimed

GM LogoDeadliest Auto Defect in American History

General Motors is a contender for causing one of the deadliest vehicle defects in history. The number of deaths tied to the ignition switch defect has just reached 100 and is likely to climb much higher. The reality far exceeds G.M.'s strong assertions last year that only 13 people were killed in wrecks involving its ignition switch.

Cover Up, Then Denial

In 2012, the family of a G.M. crash victim hired Mark Hood to investigate the cause of the fatal accident. What the engineer discovered turned the automotive world upside down and opened the door to justice for thousands of victims and their families. During the course of his investigation, he compared the victim's ignition switch to one he purchased from a local dealership for $30 and slowly unraveled the truth. He not only discovered the problem with the ignition switch, but that the company had taken deliberate steps to cover up the problem.

Evidence indicates that G.M. knew about the defect since at least 2006 or 2007. And yet, the car manufacturer allowed people to drive around in these dangerous vehicles for a decade. 

Even after the company was caught, their reaction was slow in getting defective cars off the streets. Only upon pressure from Congress did G.M. step up recall efforts. At that time, lawmakers were incensed that 13 people had been killed, having no idea that these deaths represented just a drop in the bucket. G.M. lawyers and executives continued to deny the defect caused more deaths. 

4,300 Death and Injury Claims Filed Against G.M.

Continue reading "G.M. Ignition Switch Deaths Tops 100 - Not 13 As First Claimed" »

May 12, 2015

Supreme Court Makes Suing Trucking Companies More Onerous

The Supreme Court of Texas released a decision Friday that further limits the rights of victims to seek compensation in tractor-trailer accident cases. 

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The court decided that the company that contracted with the truck driver's employer could not be held liable under the Federal Motor Carrier Safety Regulations or the Texas regulations that codify the FMCS rules. The court also decided that the evidence did not prove vicarious liability of the company for the independent contractor's fatal injuries because it did not retain sufficient control over the driver. 

Gonzalez v. Ramirez

Gonzalez, the owner of Gonzalez Farms, agreed to harvest and transport silage for another farm. Gonzalez contracted with 3R/Garcia Trucking, which was owned by Garcia, to transport the feed to a feed yard. For each delivery, Gonzalez's harvester operators loaded the truck and signaled for the driver to leave once the truck was full.

On October 5, 2009 Garcia sent a tandem truck and a new driver, Ramirez, to complete the delivery. As he drove his first load to the feed yard, a tire on Ramirez's truck blew out, causing him to lose control of his vehicle and swerve into oncoming traffic. The truck collided head-on into the car carrying Tammy Jackson and her fourteen-year-old daughter, Rexee Jo. All three died in the wreck.

The lawsuit filed by the ex-husband of Tammy and father of their child, Samuel Jackson, against Gonzalez alleged that negligent overloading and negligent hiring were responsible for the accident that killed his family members. He also alleged Gonzalez was vicariously liable for Garcia's and Ramirez's actions based on Gonzalez's motor carrier designation under the FMCS and Texas laws. 

The driver's wife and mother also sued Gonzalez and Garcia, under a common law theory of retained control of an independent contractor. 

The Supreme Court heard this case on appeal by Gonzalez of a lower court's decision ruling that plaintiffs had asserted sufficient facts in their pleadings.

Motor Carrier Liability

Since Texas has not adopted the federal law, 49 C.F.R. ยงยง 376), the court made its determination as to Gonzalez's motor carrier status by analyzing Texas laws. The court found that, although Gonzalez did control the loading site, he did not control the trucks, drivers or routes. The court concluded that Gonzalez was acting as a shipper, rather than a motor carrier and held that the motor carrier provisions did not apply to him.The Supreme Court affirmed the lower court's decision to render summary judgment in favor of Gonzalez on Jackson's claim.

Independent Contractor Duties 

On the claim presented by the driver's family based on common law, the Supreme Court found:

"Generally, an owner or general contractor does not owe a duty to its independent contractor's employees to ensure that they safely perform their work... But an owner or general contractor can be held vicariously liable for its independent contractor's actions if the owner retains some control over the manner in which the contractor performs the work that causes the damage."

Having determined that Gonzalez did not control the trucks, driver or routes, the court ruled without oral argument that Gonzalez was not vicarious liability for negligence of its independent contractor, the driver's employer. The court remanded the case to the court of appeals to determine Jackson's claim for negligent hiring.

May 8, 2015

Texas Has Third Worst Drivers In The US

Texas Flag

And We're 6th Worst in Drunk Driving Fatalities

Is it just your imagination or are the drivers around you the worst? It turns out that you're right: At least Texas doesn't have THE worst, but we ranked in third place of the top worst drivers in the country. 

The Car Insurance Comparison website conducted the worst drivers study based upon publically available National Highway Traffic Safety Administration (NHTSA). The researchers reviewed the stats in different categories to derive at a score per category. Then they added up all the scores to reach the overall rankings. The lower the score the worst the driver. 

When all scores were added up, South Carolina and Montana tied for first place and Texas came in third. The eyes of Texas aren't on the road ahead of us, that's for sure.

Unsurprisingly, drunk driving deaths was a telling indication as to a state's overall ranking, with all of the states ranked top 10 worst drivers also ranked in the top 10 DUI fatalities. Texas came in sixth place in the percentage of drunk driving related deaths.

Continue reading "Texas Has Third Worst Drivers In The US " »

May 7, 2015

Texas House Passes Major DWI Legislation

Ignition Interlock Device Required for First-Time Drunk Driving Offenders

The Texas House took an important step on Tuesday in making our roadways safe from repeat drunk drivers. House Bill 2246 requires installation of an ignition interlock device in the automobiles of first-time DWI offenders. The legislation now heads to the Senate for a vote. MADD supports this law. And of course, we here at Berenson Injury Law do as well.

House Bill 2246

House Bill 2246 amends the current law that requires installation of an ignition interlock device for repeat offenders and for first-time offenders who register a BAC of .15 percent or greater. The device is not currently available for first-time DWI offenders who register a BAC of .08 percent.
Now, in order to obtain an occupational license, all first-time offenders must install the ignition interlock device on their vehicles.

The Ignition Interlock Device Saves Lives 

MADD National President Colleen Sheehey-Church and the families of DWI crash victims testified last month in favor of passage of the law. As reported by KGNS.tv, Ms. Sheehey-Church said, "HB 2246, creating an all-offender interlock law, is desperately needed in Texas." Representative Jason Villalba, who authored the legislation, explained that, "Texas leads the country in deaths caused by drunk drivers. Ignition interlocks save lives."

National Highway Traffic Safety Administration (NHTSA) statistics confirm their assertions. Drunk driving was cited as the cause of 1,337 deaths and 15,687 injuries in Texas in 2013.

The Centers for Disease Control and Prevention estimates that use of the device reduces the incidents of repeat offenses by about two-thirds. 

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May 5, 2015

Former Dallas Assistant Police Chief Killed in Motorcycle Wreck

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Widely Loved Officer Became Chief in Corpus Christi 

Floyd Simpson died in a motorcycle crash on early Sunday evening in Port Aransas. The popular officer died swerving to avoid an oncoming truck. The 16-year-old truck driver's fatigue has been cited as the cause of the collision. Especially given our country's recent law enforcement conflicts, this careless wreck seems all the more tragic. Why was the 16-year-old driving by himself in violation of state law, and how could he have been fatigued at only 7:00 in the evening? Our hearts go out to the officer's wife of 27 years and his four children.

Dallas Mourns Loss of Respected Police Officer

Floyd Simpson made history as the first African American Chief of Police in Corpus Christi, a majority Mexican American city. Before then, he had been a 25-year veteran of the Dallas Police 

Continue reading "Former Dallas Assistant Police Chief Killed in Motorcycle Wreck" »

May 4, 2015

Austin Attorney Hits Pedestrian, Arrested for Hit-and-Run

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Driver An Advocate For Injured Workers

An Austin couple was crossing a service road next to Interstate 35 last Saturday night when a black Porsche sped through a U-turn and struck the man. Police arrived to find the Ernesto Gonzales with head injuries and deep lacerations all over his body. 

The driver was nowhere to be seen, having fled the scene of the wreck. However a witness recorded the license plate of the hit-and-run vehicle, which police traced back to a residence.  Investigators matched the address to the house -- also the office -- of Brian White. 

Police found a damaged black Porsche with this license plate parked outside in his driveway. The windshield had a "basketball-sized indention, which was shattered, caved-in and had bits of blood and flesh imbedded in the broken glass." The police report also describes blood and handprints on the driver's side mirror and scuffs on the hood and front fender. 

Continue reading "Austin Attorney Hits Pedestrian, Arrested for Hit-and-Run" »

May 1, 2015

Affluenza Teen's Parents Deemed Worst Ever By D Magazine

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"Affluenza Defense" To Be Banned?

The cover story in the May issue of D Magazine takes a rare look at Fort Worth. The infamous Ethan Couch and his dysfunctional parents are profiled two years after the horrendous DUI crash that  killed a 24 year-old woman and three Good Samaritans and left a young man whom I represented totally paralyzed.

The article by Michael Mooney, who helped bring the American Sniper story to light, chronicles how the kid became a killer. He grew up in a huge home where he was given everything. For example, he was allowed to drive himself to school at 13; his father bragged that he was better than most drivers. At 15, he was given a F-150 with a Harley-Davidson package and unlimited freedom. His parents always praised him and never punished him. The parents were law-breakers themselves (see photos that follow). It's not much surprise that he thought he was above the law.

Was The Juvenile Judge's Decision Fair?

You will remember that the teen was largely relieved of responsibility. How did he get away with vehicular manslaughter and intoxication assault?  Couch's blood alcohol concentration was a shocking.24 percent and he had drugs in his system.

Continue reading "Affluenza Teen's Parents Deemed Worst Ever By D Magazine" »

April 28, 2015

DWIs And Collision Deaths in Austin Way Up - Other Cities Next?

Another Needless Tragedy


Maleeca Smith was studying physical therapy at the University of Texas in San Antonio. Two years earlier, the 20 year-old woman graduated third in her class at Eastside Memorial High School, where she was in the orchestra, a cheerleader, and a Girl Scout. 

The promising college sophomore had come home to North Austin to visit her mom and sister LaTiya for the weekend of April 12. As Maleeca climbed into her car to head home, Measha said, "See you in a little bit. Be careful, I love you." That night, Maleeca was tragically killed by a drunk driver.

Shawn Amende ran a red light and t-boned Meleeca's 2005 Nissan Altima. He and his passenger were transported to the hospital, where an investigator observed his slurred speech, swaying, poor balance and the odor of alcohol. Amende admitted drinking two margaritas before climbing behind the wheel of his Camaro. The 26 year-old man has been charged with intoxication manslaughter and intoxication assault, as his passenger also suffered fractured ribs and internal bleeding for which she underwent surgery.

Mother's Message to Drunk Drivers

The heartbroken mother delivered this message to anybody considering driving drunk: "It's stupid and not worth it," and she gives sage advice to anyone who has had too much to drink, "We got cabs, we got buses, we got Lyft, Uber, got so many things that it just didn't make sense." Referring to drunk driver who killed her daughter, she said, "His family still has to suffer because of the mistake that he made, and it's just not worth it." 

Higher Rate of Deadly Crashes in 2015 in Austin

Twice as many deadly car crashes have already occurred in Austin in 2015 This DWI crash is Austin's 27th fatal traffic collision. There are usually 50 deaths during the whole year. 

An Austin police official blamed most of these deaths on the usual suspects we see day after day: alcohol, distracted driving, and speeding. The increase in deaths comes despite Austin's brand new law that took effect on January 1st that prevents a driver from using his cell phone when he is driving and a crackdown on drinking while driving.

What Does This Mean For Other Texas Cities?

What is going on in Austin? Is it a harbinger of things to come for other rapidly growing cities in Texas? We must crack down on these reckless and drunk drivers.


April 27, 2015

New Laws To Change Texas Personal Injury Litigation?

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Updates on Pending Bills

Mark Twain noted that "no man's life, liberty, or property are safe while the legislature is in session." Here we are in that scary time of alternating years when plaintiff lawyers hold their breaths to see how the Texas legislature will continue to curtail the rights of injured people to recover their damages.

The final day for the legislature is still five weeks away and there are too many to write up in this short space, but here is the status of several significant ones being considered in Austin:

SB 1628 will be debated on the Senate floor this week. If passed, protections for policyholders against low, slow, or no payments from their insurance company will be slashed. 

HB 335, which protects drivers from "named driver" insurance policies, has been voted out of committee and has a chance of passing. These "junk policies" need to be eliminated so that motorists don't get stuck holding the bag. 

Continue reading "New Laws To Change Texas Personal Injury Litigation?" »

April 23, 2015

Controversial Red-Light Cameras To Be Outlawed

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New Law Likely to Pass State Legislature Soon

The $75 traffic citation arrives in the mail. You might rack your brain as you try to remember if you ran a red light. Or you might reluctantly admit that you did. You might even concede that our roads have been safer since red-light cameras were introduced into the Texas roads landscape in the early 2000s.  Now these annoying but potentially life-saving cameras will become a thing of the past.

The Texas Senate voted yesterday to ban red-light cameras across the state. The new law, SB 714, will eliminate them in two phases. First, the law would prohibit installation of new cameras, then they would slowly be removed as the contracts between municipalities and camera operators expire. So don't get too excited; the cameras will be on our streets for years to come.

Sen. Bob Hall introduced the bill because he believes that the cameras "trample on constitutional rights" while doing little to improve public safety. The Senate overwhelmingly passed the measure on a 23-7 vote. The bill has now been sent to the House, where it also has substantial support and will pass.

Several Texas cities have already voted to prohibit the use of red-light cameras. But on the other hand, the Fort Worth City Council recently voted to continue the program due to its efficacy, and many other cities believe that they have reduced crashes at intersections. 

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