Personal Torts

Personal Torts 

(61 SMU L. Rev. 1013 (2008))

It is the function of justice not to do wrong to one’s fellow-men. —Cicero,  De Officiis I, 97, (Miller Translation, Cambridge Univ. Press 1913).

Tort law is a body of law that creates and provides remedies for civil wrongs that do not arise out of contractual duties or statutes.[1]  It is also one of the most practical areas of law—dealing with auto accidents, medical malpractice, and defective baby seats—often touching those who ordinarily have little contact with the legal system.  But as esoteric or banal as a survey of tort law may first seem, it is important for three reasons: (1) tort cases directly affect not only the rights of individual parties, but the rights and responsibilities of all individuals and businesses who face similar issues every day; (2) tort cases often resolve fundamental debates within jurisprudence and legal theory having broad reaching affects on other areas of law (for example, the admissibility of expert testimony established in tort cases applies to experts serving in contract cases); and (3) tort cases often reflect the current moral and political philosophy prevailing in our system of jurisprudence.

Over the past year, a distinct pattern has emerged in the disposition of personal injury case by the Texas Supreme Court.  In almost every personal injury case decided during the Survey period, the supreme court has decided in favor of the defendants.  With very few exceptions, the cases surveyed resulted in a win for the defendant corporation, insurer, or business and a corresponding loss for the individual plaintiff.  The long-term effect of these decisions will be far reaching.  The supreme court decided important tort cases in the hot-button areas of workers’ compensation, personal jurisdiction, subrogation, vicarious liability, and causation.  In addition, the Texas courts of appeals made their first foray into the “paid or incurred” debate.  These opinions looked at the issue of whether plaintiff may only recover medical expenses she actually paid or whether she may also recover for expenses “incurred” when visiting a treating doctor or hospital.  For now, the answer to that question and the future of the collateral source rule remain unclear.  But the decisions provide insight and reasoning that may be persuasive in the future.  In light of the changing judicial environment in Texas, both plaintiff and defense counsel should pay special attention to decisions that alter well-settled law or establish new principles…

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