Toxic Torts Outline
Proof problems are the main issues in most cases.
1st questions to ask:
1. special appearance – don’t want to enter courtroom because means can take jurisdiction over you so request; if approved then not subject to jurisdiction
(do any of the people that I represent not do business in the state of TX and it would subject them to harm? Look for: plant here, sell anything here, hang out here, advertise here, have bank accounts here)
if you waive this you have committed malpractice
this is the first thing that must be filed
anything subsequent to that has to be filed subject to that special appearance
2. venue (if not challenged in your initial pleading, you waive the right to challenge); critical in your analysis of the case
“all or a substantial part of the action arose”
D can ask for concurrent with or before files answer
in TX – 15.002, 15.004
3. removal (can I remove this case to federal court?)
D wants to do so because more beneficial to him
To do so you must analyze the pleading:
Is there a diversity issue? (generally the most utilized)
Look for state of incorporation and the principal state of business of the organizations)
Must be more than $75K at stake
Find an individual to sue
Is there a federal question issue?
Joinder rules in TX allow you to bring in all of the possible Ds; this helps because each may only have to pay a percentage of the damages.
Types of claims:
Who can bring: one or more from can bring – surviving spouse, children, parents of deceased
1. Wrongful death (people set up in the statutes can only sue):
Loss of future income, loss of consortium, loss of companionship, support, love and solace, loss of inheritance
Usually brought under state statute, but there is also a Constitutional provision (only punitive in nature)
2. Right of survivorship (personal to deceased):
Estate has this action for conscious pain and suffering, medical bills, funeral expenses, mental anguish, loss of income while alive
3. Individual claims
Damages stay in these trials; bifurcate for the punitive damages only.
“day in the life video” – if you are the D’s attorney and the P is dead, you want to get the audio knocked out on a hearsay objection
very effective for the P
Important to prove:
D = proximate cause
P = producing cause
Types of claims:
Horizontal: claims that can bring on the people that can be seen “from the front porch”; those that go out across people who can be s
eneral public (question of fact for the jury)
someone who does not suffer a monetary consequence will probably not be able to bring suit.
** Economic Loss Doctrine – be a foreseeable P; parties who suffer purely economic loss because of Ds conduct cannot sue for those losses unless the party has also sustained physical harm to persons or property or damages to a proprietary interest or can recover under a separate tort; bars claims for negligence and strict liability. DOES NOT APPLY IN A NUISANCE CLAIM.
In TX, personal injury and property damage are different types of harm.
If you have a trespass claim, you can always possibly have a nuisance claim.
Cannot sue prior owners.
Adkins v. Thomas Solvent Company
Chemicals never reached Ps property
Ps suing based on the fact that rumor of chemicals caused a depreciation in their property.
** You must have a significant interference with the use and enj