How to File a Tort Claim in Texas

Individuals that have experienced harm or loss due to the wrongful acts of a private person, business, or government official in Texas, often have the option of filing a tort claim. A tort action aims to establish that the plaintiff did suffer harm and is entitled to receive compensation or some other remedies from the defendant. However, to successfully secure a reasonable compensation, the victim must take certain steps. Interested persons can learn about what kinds of torts they are dealing with, as well as step-by-step tips on instituting such claims in Texas Courts by speaking with a personal injury lawyer or civil litigation attorney.

What Are Types of Tort Lawsuits in Texas?

Torts are broadly classified into three categories under Texas laws: intentional torts, negligence, and strict liability torts.

• Intentional torts: to be liable for an intentional tort, the culpable party must have acted on purpose. That is, the person either intended the consequence of the act or believed that the outcome is substantially certain to result from it. Common examples of intentional torts are:

  • Battery: this means the wrongful touching of another person, such as unwanted sexual contact and violent contact.
  • Assault refers to the threat of injury or harm against someone or an attempt to commit a battery.
  • False imprisonment: means holding a person for too long against their will and without justifiable cause
  • Trespass occurs when someone purposefully enters another person's land or other property without their consent. All that is required for the tort is an intention to enter the land or other property. The person does not need to intend to commit the trespass.
  • Conversion is the act of intentionally exercising control over another person’s property without permission or performing acts inconsistent with the owner’s right.
  • Intentional infliction of emotional distress: means causing severe emotional distress to another person by engaging in extreme and outrageous conduct.

• Negligence: this refers to a person’s failure to act with a reasonable degree of care in a particular circumstance, causing injury or harm to another person in the process. Negligence is not considered an intentional tort because it arises from the carelessness or recklessness of the defendant. To determine whether a person is negligent, the court would have to consider whether the defendant breached a duty of care owed to the claimant and that was the cause of the claimant’s injury. Common negligence cases in Texas include slips and falls, auto accidents, and medical malpractice.

• Strict liability torts: someone is liable for this kind of tort when they engage in certain prohibited conduct that causes injury to another person. The liability is strict because it does not require proof of any mental state such as intention or negligence. Conducts that can give rise to strict liability tort include keeping wild animals, using explosives, and producing defective products.

The at-fault party in a tort case is typically referred to as the defendant, while the party bringing the claim is known as the plaintiff or claimant. Also, though acts that constitute personal injury claims may qualify as crimes, unlike criminal cases, a civil claim aims to secure compensation for the victim, not punishment for the defaulting party.

Steps to Filing a Tort Claim

Irrespective of the type of conduct constituting the subject of a case, tort claims usually follow a similar set of phases and processes. These steps often get complicated, and the success or failure of the claim may depend on how they are handled. As such, victims should consider engaging the services of a Texas tort attorney or a personal injury lawyer. A competent attorney is familiar with how the legal system works and can help clients navigate the procedures involved in filing a tort claim in Texas, which typically includes:

Gathering Evidence

This step entails conducting an in-depth investigation into the cause of harm or injury. This is an important step considering that the court can dismiss a lawsuit if it is not supported with sufficient evidence.

Gathering evidence can begin as early as the immediate aftermath of the act constituting the claim. Evidence such as pictures or videos of the scene can help the Texas personal injury attorney create an accurate account of the incident. It is also during this stage that the attorney reaches out to witnesses who experienced the accident, obtains accident and medical reports, as well as engages experts that will analyze the evidence collected to substantiate the claim.

Determining the Parties at Fault

This step involves identifying who is responsible for the tort based on the evidence gathered. This step is important as it forms the basis for the claimant to determine who to sue and the amount of damages to request. Several parties can be simultaneously liable for a tort. For example, for personal injury caused by a product defect, parties like the product manufacturer and retailer may be liable individually or jointly for injuries to the victim. Likewise, the victim may also be partly responsible for the occurrence of the tort. In this case, the compensation claimed will be apportioned based on the degree of fault, in line with the contributory fault principle. Furthermore, it is important to note that under Texas law, claimants that are 51% or more at fault for their injuries will be barred from getting compensation.

Calculating and Documenting Damages

Whether a victim is seeking to claim compensation through settlement or trial, it is crucial to calculate and document damages accurately.

Damages refer to monetary compensation claimed by the victim of a tort. Texas law classifies them as compensatory or exemplary. Compensatory damages are granted to reimburse a claimant for economic and non-economic injuries. Economic injuries are special to the claimant, and they constitute losses that can be quantified financially, including medical costs and loss of future earnings. Meanwhile, non-economic damages encompass injuries that are not financial in nature, such as pain and suffering, mental anguish, and disfigurement.

Exemplary damages, on the other hand, are typically imposed on the defendant as punishment in certain cases such as fraud, malice, or gross negligence. A court may also impose exemplary damages if it determines that the damages awarded are not adequate compensation for what the claimant suffered. Section 41.008 of the Texas Civil Practice and Remedies Code, however, limits punitive damages claimable in a case to a maximum of $750,000.

A court may not award compensation if the losses suffered and damages claims are not properly documented. Similarly, insurance adjusters of at-fault parties are likely to not offer settlement sums not relating to injuries suffered by the victim. A proper calculation of damages also ensures that compensation requests are not unreasonable. That is, either too low to address the claimant's losses or too high such that the court or insurance company holds it against the claimant.

Contacting the At-Fault Party

At this stage of the case, plaintiffs reach out to the party responsible for their loss or injuries. This is often done using a demand letter. A demand letter is a formal letter addressed to the defendant by the plaintiff outlining the plaintiff’s reasons for believing that the defendant is responsible for the tort. The letter also usually contains a demand for a certain sum of money as compensation for losses suffered, a deadline for payment, and steps the plaintiff would take if the defendant does not meet the demand. Depending on the defendant’s response, the parties may either begin negotiations on resolving the case or proceed to trial.

Negotiation

Before filing a tort lawsuit, the parties may attempt to resolve the issue by negotiating a settlement sum acceptable to the claimant. Acceptance of this agreement generally precludes the claimant from proceeding to trial. However, the claimants can sue if they find the defendant’s offer unacceptable. In most cases, parties to a tort action still have the chance to settle even after filing a lawsuit.

At this point, a claimant would also generally be on the watch to ensure that the negotiation period does not extend past the case limitation period. A limitation period is a statutorily stipulated for a case to be instituted. A court may not hear a case instituted outside its limitation period, as such a case is considered status-barred. Most torts have a limitation period of two years, which begins to count from when the cause of action arises. A cause of action arises when the incident occurred or when the claimant became aware of its occurrence.

Instituting a Lawsuit

A claimant unable to obtain a reasonable settlement can proceed to court by instituting a lawsuit against the defendant. The first thing to consider when filing the suit is whether the claimant is eligible to do so. Under Texas law, not all persons can file claims concerning certain torts. For example, a wrongful death claim may only be instituted by the deceased’s spouse, children, or parent and, in certain circumstances, the executor of the deceased person’s estate. Another point of consideration is which court to file the claim in. Notably, claims not exceeding $20,000 in value are small claims to be instituted before a Justice and Peace Court. County and District Courts can hear higher claims.

To institute a tort lawsuit in Texas, the claimant would firstly file a formal complaint in the relevant court and pay the applicable filing fees. The complaint would contain the facts of the claim, details of both parties, and compensation claimed. The complaint has to be sent to and received by the defendant. This is known as service. The common method of service is mailing.

Upon receipt of the summon and complaint, the defendant will have to file an answer within a stipulated time, usually within 21 days, unless the defendant is a government entity or official. In that case, the answer can be filed within 60 days. The court may grant a default judgment if the defendant does not file an answer in time. Other ways defendants respond to a formal complaint include;

• Filing a motion to dismiss the claim for either lack of jurisdiction or want of sufficient evidence
• Filing a motion for a more definitive statement requesting more information from the plaintiff, and
• Filing a counterclaim, which is also a lawsuit.

Discovery

Discovery is a pre-trial phase of a tort lawsuit during which parties to the suit investigate the facts of the case. This is typically done by obtaining evidence from one another through requests established under the Texas Civil Procedure Rules, including requests for answers to interrogatories, requests for production of documents and things, requests for admissions, and depositions.

This process can easily become the longest phase of a claim, taking weeks, months, or even years. However, Texas law provides some limits to ensure that the process does not drag too long. In certain cases, when damages are less than $100,000, the discovery process may only last 180 days which begins to count from the date the first discovery request was served. Additionally, a party shall not make more than 15 discovery requests in a suit. However, there is usually no limit on very general, standard requests, known as disclosures.

The purpose of discovery is to allow both parties to understand the facts and arguments that the other party will make against them to ensure no surprises at trial.

Mediation

It is a state policy in Texas to encourage the resolution of civil cases through alternative resolution methods, including mediation. Following discovery, a court may order parties to a tort action to go through this process before proceeding to trial.

During mediation, parties to the dispute meet a neutral person, known as a mediator, to assist them in their negotiation process to settle. Mediation can increase how long a personal injury case takes, particularly if the parties did not settle. Nonetheless, it is usually less expensive and faster than a trial.

Trial

A trial is a next phase for parties that do not settle through negotiation, mediation, or other alternative dispute resolution processes. Cases that proceed to trial will be determined by a trial judge or jury. During a trial, parties bring their claim, including evidence supporting it. The typical process of tort litigation in Texas includes

• The setting of the trial date
• Assigning the case to a judge and selecting a jury
• Making opening statements that outline their positions
• Presenting, examining, and cross-examining evidence
• Making closing statements, summarizing their position and why the court should find in their favor
• The judge or jury delivers their verdict, announcing the party they rule in favor of
• Award of damages, if the case is in favor of the claimant.

Although the steps mentioned above are common to several kinds of tort claims in Texas, certain additional steps apply to some particular types of tort cases, such as mass torts and tort claims against the government.

When Does a Tort Claim Become a Mass Torts Claim?

A tort becomes a mass tort when multiple victims have suffered similar injuries due to the act of the same defendant or group of defendants. A major benefit of a mass tort action is that the civil litigation attorneys in charge of each individual claim can pull their resources together and increase the chances of the injured parties recovering damages. Common types of mass torts include liability arising from exposure to toxic chemicals, defective drugs, dangerous products, and faulty medical equipment. Below are the procedures common to mass tort claims in Texas, including the aspects that do not typically apply to other kinds of tort actions.

• Gathering and comparing evidence: Unlike other kinds of tort claims, attorneys in mass tort claims will also have to examine evidence linked to the other plaintiffs’ injuries, including medical records and testimonies, to find similarities in the injuries and identify the basis for compensation.
• Filing of claims and consolidation: The next step is to file the claims individually, after which the claims may be consolidated in a federal court as multidistrict litigation (MDL). MDLs are usually helpful, especially when the victims file from several judicial districts across the country. MDLs also reduce the processing time of each lawsuit.
• Bellwether trials: After filing, a group of cases will be selected to proceed to bellwether trials. Bellwether trials are used to test how the court would handle similar cases. The outcome of the trials usually serves as a roadmap to other courts in later claims. Following the conclusion of bellwether trials, the parties to the mass tort suits may enter negotiations to reach a settlement. Depending on the outcome of the negotiations, the parties may either discontinue the case or proceed to trial.

How Do Tort Claims Against the Government in Texas Work?

In Texas, the state governments, its units, and agencies generally enjoy what is known as sovereign immunity, which makes them immune from lawsuits. That is, in many instances, the government cannot be sued in tort without consenting to the suit. However, sovereign immunity is not absolute. It is limited under the Tort Claim Act, contained in the Tile Five, Chapter 101 of the Texas Civil Practice and Remedies Code. According to the Act, government agencies and political subdivisions collectively referred to as governmental units, can be sued in tort for injuries arising from

• The operation or use of a motor-driven vehicle or equipment
• Condition or use of tangible, personal, or real property.

However, for a governmental unit to be liable under Texas tort law, the employees that caused the plaintiff’s injuries must have been acting within the scope of their employment and would have been liable if they acted as private individuals.

Additionally, the Tort Claim Act includes a limitation of liability for claims against the government. The law limits damages claimable to the sum of $250,000 per claimant and $500,000 per occurrence in cases involving bodily injury, while the limit for property damage is $100,000 per occurrence. Similarly, although claimants can seek compensation for death, personal injury, and property damage in motor accident claims against a governmental unit, compensation for property damage cannot be recovered in premise liability claims.

Instituting a Tort Claim Against a Municipality

Some additional rules apply to claimants instituting tort lawsuits against local or municipal governments in Texas. For example, such claimants are to file a notice of claim with the local or municipal government, not the state government. Municipal authorities usually provide forms and information on how to file such a notice. Cities like Dallas provides notice forms on its website. The City of Houston also provides information about notice of claim on its website.

Furthermore, the Tort Claims Act applies only to the liability of a municipal authority arising from the performance of governmental functions given to them under the law. These include functions like police and fire protection, sanitation service, road construction, and so on. As such, when performing proprietary or non-mandatory functions such as the operation of amusement parks and supervision of ultra-hazardous activities, the municipality will be liable just like a private person. It will not be able to rely on the limitation of liability and other procedural protections available under the Texas Tort Claim Act.

What Is the Time Limit for Filing Tort Claims Against the Government?

Section 101.101 of the Texas Tort Claims Act requires persons instituting claims against the government to file a notice of claim with the appropriate governmental unit not later than six months from the date the incident constituting the claim occurred. However, the law gives municipal authorities the power to enact legislation specifying the time limits which will apply to the filing of a notice of claim against them. For example, for claims against the City of Houston, a notice of claim must be filed within 90 days, while the City of Austin has an even shorter time limit of 45 days.

A court may not examine a claim filed in violation of the relevant time limit.

Below is a flowchart on how tort claims against the government, its agencies, and municipalities work in Texas.