Pediatric Traumatic Brain Injury


The number of children and adolescents in this country who sustain traumatic brain injuries (TBIs) is staggering.  A half  million youngsters each year are taken to emergency rooms with head injuries from falls, motor vehicle accidents, sports, and abuse.  Approximately 165,000 of these children will be hospitalized with 20,000 suffering moderate to severe symptoms. 

TBI is the leading cause of death in children ages 0-4 and adolescents ages 15-19.  Further, it is estimated that 145,000 adolescents ages 15-19 are living with lasting cognitive, physical, or behavior effects of traumatic brain injury (Center for Disease Control, 2015).  Why are these numbers so high? The unique characteristics of the infantile, underdeveloped brain play a significant role.

The young brain is particularly susceptible to traumatic injury because: 1) brain neurons, and other structures and systems, are underdeveloped early in life leaving them more vulnerable to the acceleration/deceleration forces associated with head trauma; 2) immature brain neurons when traumatized tend to release excessive quantities of stored substances that create a toxic environment in the “extracellular space” of the brain leading to destruction of adjacent brain cells; 3) the skull segments in young children are still fusing and their skulls are much thinner; and 4) a child’s head is significantly heavier relative to the rest of its body, making small children particularly susceptible to falls that cause head and neck injuries.  For these reasons and others, the same traumatic event can produce more severe outcomes in children than adults.

Diagnostic and therapeutic efforts are often complicated by the inability of a child to share what they are fully experiencing, further adding to the challenge.  Equally problematic is the frequent reality that cognitive impairment in children from brain trauma may not surface for prolonged periods.  Often, the full extent of injury only becomes apparent years later as the child gets older and faces increased cognitive expectations and new social challenges in more complex social circumstances.  Though the injured brain has an amazing capacity to reorganize itself by forming new neural connections (plasticity), there are limits to this self-healing.  Much debate exists on what those limitations may be in the pediatric brain.  These factors, conditions, and others, make for a multitude of special medical and non-medical difficulties for both clinicians and parents, and of course, young patients.

Learning how best to confront these challenges begins with understanding the infantile nature of the brain at birth, the rapid structural developmental processes that occur in early years and beyond, and how during critical developmental phases a traumatic event can affect and sometimes alter the path to normal brain maturity. Awareness can help patients, parents, and families better understand and prepare for what may lay ahead.


We are born with 100 billion brain neurons (give or take a few million).  As we grow older our brains do not create new ones. In fact, throughout life we lose brain neurons in the normal course of living, and unfortunately at times through disease and traumatic events.

A brain neuron has its own unique cell structure consisting of three basic parts; the cell body or “soma” (which tells the neuron to send an electrical signal), an extended “axon” (through which the signal travels and exits), and “dendrites” (finger-like extensions that connect to other neurons) that pass the signal along. 

At birth the brain of a baby has about 50 trillion neuron connections.  That may sound like a lot, but not in comparison to the fully mature brain of an adult.  When the brain neuron network is fully formed over 1,000 trillion connections will be made.  Amazingly, by the time a child is one year old the full 1,000 trillion connections have occurred.  Due to certain age-related structural conditions, however, these connections cannot function like they will later in life when the brain matures.

At birth and during early formative years certain regulatory systems in the brain are also not fully developed. When these immature systems under perform following trauma, significant brain tissue death can unfortunately occur.


Children are not little adults.  The brain of a child is not a smaller version of an adult brain.  There are significant structural differences and different response mechanisms that render the pediatric brain more vulnerable to traumatic events.

Underdeveloped Neurons

All brain neurons are relatively delicate structures.  At birth and during the early years, a child’s brain axons are particularly fragile and vulnerable because they lack an outer cover that serves to protect them.  This protective sheath, which develops as a child grows older, is called “myelin” which acts as an insulating shock absorber when head trauma occurs.  Myelin also serves the additional, critical role of facilitating the quick and efficient travel of electrical impulses through the nerve cell.

Myelination is a gradual process that actually begins in the brain stem and cerebellum before birth.  It most rapidly develops in the first two years of life, but is not completed in the frontal cortex (the area responsible for executive function such as planning for the future, judgment, decision-making skills, attention span and inhibition) until late adolescence. 

Until their axons are fully myelinated, children remain more vulnerable to the shearing forces of rapid acceleration/deceleration associated with head trauma simply because their neurons lack protective insulation.  

Lack of myelin in the early years also causes the brain to be less dense, more watery.  When the brain becomes more dense, i.e., less watery, it can better absorb traumatic forces.  When traumatic forces are applied to more watery regions of the brain where myelin has yet to develop, damage or more significant damage, tends to occur.

Brain Swelling

Here are the statistics.  Diffuse (widespread) cerebral swelling frequently present in severe pediatric head injury is overall 2 to 5 times more common in children as in adults.  Also, children have a higher incidence of increased intracranial pressure (ICP) following TBI than adults (80% vs. 50%).  The immature brain is more susceptible to swelling from trauma for multiple reasons.

Increased swelling is believed to be the result of an underdeveloped auto-regulatory mechanism for cerebral blood flow (CBF) leaving children particularly vulnerable to uncontrolled “cerebral hyperemia” (increase in blood flow to the brain).  

Since the cranial vault is incompressible and holds a fixed volume of brain matter, cerebral spinal fluid, and blood, any increase in one without a corresponding decrease in another can produce significant consequences through swelling and increased intracranial pressure (Monro-Kellie Hypothesis).  The young, immature brain appears ill-equipped following trauma to automatically correct brain increases in volume to maintain the proper ratio of blood volume to cerebral spinal fluid.

It is also believed excessive swelling in the young brain results from blood-brain-barrier disruption. This is referred to as “vasogenic edema.”  The blood brain barrier (BBB) is a highly selective protective layer of cells lining certain blood vessels that helps prevent toxins (e.g., bacteria) traveling in the bloodstream from migrating into the brain. 

 When the BBB is damaged these toxins can enter the extracellular space and attack brain cells causing excess swelling, increased intracranial pressure and related brain tissue damage.  It is widely held that developing cerebral vessels in children are more fragile than in adults, resulting in greater susceptibility to BBB damage and the higher likelihood of toxin “leakage” from traumatized blood vessels.

Greater Risk of Exitotoxic Injury

Excitotory neurotransmitters are present in the brain and are vital for neurotransmission and normal brain function. The most abundant of these is glutamate, which is stored in vast quantities inside brain neurons and only released during neurotransmission in very small amounts to allow a neuron to pass along a brain signal (action potential).

When traumatic forces are applied to the brain, delicate brain axons tend to shear and break causing an excess release of stored glutamate.  When this happens a complex series of metabolic reactions occur allowing unhealthy amounts of calcium ions to enter damaged nerve cells resulting in cell death by “exitotoxicity.”  Experimental studies have shown that the immature neurons in children are more susceptible to exitotoxic injury because calcium in elevated amounts is more difficult for the immature neurons to safely absorb.  And, as referenced earlier, the unmyelinated neurons of a newborn and child are more susceptible to shearing-force injuries to begin with.

Unfused and Thinner Skull

Although the skull appears to be one large bone, there are actually several major bones that are connected together.  The major bones that compose the skull of a newborn include two frontal bones, two parietal bones and one occipital bone.  These bony plates cover the brain and are held together by fibrous material called “sutures.”  Sutures allow the bones to move during the birth process.  There are two spaces in the skull of a newborn that are not covered by bone but only by the cranial sutures.  These spaces are called “fontanels,” or soft spots.

During the first two years of life, the separate bones of the skull slowly begin to fuse together.  The fusing process occurs over multiple years because the brain is still growing and will not reach adult size until approximately age seven. 

 The two large soft spots on an infant’s head are closed by the time the child reaches age three.  During these formative years a child’s skull is thinner, more fragile and lacks sufficient tencil strength and density to protect the brain like the skull of an adult.

Larger Head and Weaker Neck Muscles

Certain basic anatomical realities play a role in higher incidents of pediatric brain injury.  For one, a child’s head is bigger relative to its body size than an adult.  This tends to create imbalance leading to more falls.  Combined with weaker neck muscles, a child’s head will tend to whiplash more than that of an adult causing greater brain movement inside the skull and greater damage as a result.  Plus, children, particularly young children, are not as coordinated as adults, so again falls are more frequent.


Infants and toddlers often lack the communication or developmental skills to overtly report the signs and symptoms of brain injury noted below.  Clinicians and families need to be aware of the following signs that may be initially observed after head trauma for this age group:

  • Changes in the ability to pay attention

  • Changes in eating or nursing habits

  • Changes in play (e.g., loss of interest in favorite toys/activities)

  • Changes in sleeping habits

  • Irritability, persistent crying, and inability to be consoled

  • Lethargy

  • Loss of acquired language

  • Loss of new skills, such as toilet training

  • Sensitivity to light and/or noise

  • Unsteady walking, loss of balance

Take a child to the hospital emergency department immediately if they received a bump, blow, or jolt to the head or body, and:

  • They have a headache that gets worse, and does not go away.

  • They have weakness, numbness, or decreased coordination.

  • They have repeated vomiting or nausea.

  • They have slurred speech.

  • They look very drowsy or cannot be awakened.

  • They have one pupil (the black in the middle of the eye) is larger than the other.

  • They have convulsions or seizures.

  • They cannot recognize people or places.

  • They get more and more confused, restless, or agitated.

  • They have unusual behavior.

  • They will not stop crying, and cannot be consoled or comforted.

  • There is obvious distress with breathing.

  • They lose consciousness (a brief loss of consciousness should be taken serious and the person should be carefully monitored).


Neuroplasticity, or brain “plasticity,” refers to the brain’s ability to change throughout life.  The human brain has an amazing ability to reorganize itself by forming new connections between brain cells (neurons).  This occurs at the beginning of life when the immature brain first organizes and throughout adulthood whenever something new is learned and memorized.  Brain plasticity also occurs in the injured brain to compensate for lost functions or to maximize remaining functions.

Whether children have the capacity to better recovery than adults from brain injury is to some extent debatable.  Children have a wide range of functional outcomes from early insult making identification of specific recovery mechanisms elusive, and challenging to isolate and study.  Children’s recoveries tend to represent extremes along a “recovery continuum.”  Where a child’s outcome falls along this continuum depends on multiple injury factors and environmental influences, and the complex interplay between these numerous variables.  Injury factors include severity, size, nature/type, site, related complications (e.g. seizures), age, and gender.  Environmental influences include family stability/dysfunction, pre-existing neurobehavioral problems, sociodemographic factors, and access to interventional therapies.

On the whole, evidence is building on multi-levels of investigation—basic science, clinical neurology and behavioral sciences—to highlight the increased risk of morbidity following early brain insult, as compared with similar later insult.  This elevated risk seems associated with the immaturity of the central nervous system generally and the potential that disruption will lead not only to direct, injury-specific insult, but will also derail on-going developmental processes.  Contrary to this evidence; however, is a small and growing body of literature that demonstrates enhanced recovery post-early brain insult in a range of domains including:  motor function (e.g. constraint-induced movement therapy), cognitive skills, (metacognitive training, use of compensatory aids), and social and behavioral function (individual psychotherapy, parent training).


Parents and patients should be heartened by knowledge that neuroscience research is intensely focused on pediatric brain injury with new breakthroughs occurring each year.  Across the board in all types of brain injuries encompassing all age groups highly skilled and dedicated scientists, physicians, and expert therapists and counselors, are equipped now, more than ever, with advancing knowledge, and treatment protocols to help minimize deficits and maximize outcomes.


Stay safe out there!

-Charlie Waters


Representing the Seriously Injured & Victims of Wrongful Death Since 1981. 

2909 Cole Avenue – Suite 118 – Dallas, Texas 75204 – 214-742-2223 – ALL CONSULTATIONS ARE FREE

Copyright © 2019. All rights reserved. Information contained in Legal Waters is intended to be informative only and does not constitute legal advice. Please consult an attorney if you feel you need legal counsel or guidance.


Who Served That Drink?

How Texas law works to hold those who provide the booze liable for the cruise,and what you need to know about who can be liable – and why.

26677c47-c180-4d63-b724-f1c6f3a21bd8Few things are more frightening on Texas roadways than drunk drivers. We know the menace they represent and the carnage they cause. Texas has some pretty tough criminal laws in place to punish those who offend. And they’re getting tougher.

That’s a good thing!

But we also have a pretty salty statute that can impose civil liability (meaning money damages) on those who hold the bottle and pour the drink.

And that’s a good thing, too!

It’s called the Texas Dram Shop Act, and it’s been in place since 1987. It’s a law that most say has actually worked the way it’s supposed to (that’s always refreshing), although some feel it could use a few more teeth. Perhaps our Legislature will see fit this current session to perform the dental work.

Here’s where Dram applies…

If the injured victim of the drunk driver can show:

(1) The defendant was a “provider” of alcoholic beverages, and

(2) provided the alcoholic beverages to someone who “apparent to the defendant” (provider) was “obviously” intoxicated, and

(3) that drunk driver causes the injuries to the victim, then

…the defendant can be held LEGALLY RESPONSIBLE to the victim for the injuries and damages caused.

Now THAT’S a law that packs a punch (and a punch that’s actually been felt by the hospitality industry in lawsuits throughout Texas for many years)! It’s a statute that has helped change, (slowly and perhaps not extensively enough), how restaurants, bars and retail stores approach making that extra buck or two off the “one too many” patron.

But, here’s where Dram does NOT apply…

An individual (or organization for that matter) having family or friends over for a visit or hosting a party, function or gathering at their home (or elsewhere) in which adult beverages are “served” is NOT a “provider” under this law, so Dram liability does not apply to the host in this circumstance. But! (This is important.) If the social host is selling drinks to his/her guests…then say hello to Mr. Dram.

The other exception is simply serving (selling not required) an 18-or-under minor who drives drunk and causes injury. Mr. Dram comes along for that ride, too.

This statute is primarily directed at drinking establishments and retail facilities licensed by the State to sell alcohol and at others who, though unlicensed, choose to sell. So, if your best friend Joe drinks too much at your Super Bowl party and drives off and hurts someone that’s on Joe, not you. Joe can be sued – you can’t.

In other words, as a purely social host serving (and not selling) alcohol in Texas, you don’t have a legal duty to make sure your adult guests are sober enough to drive home. Of course, moral duties are important, too. Sometimes Joe needs a little tough love, hot coffee and someone to kidnap his car keys.

Stay safe out there!

-Charlie Waters


Representing the Seriously Injured & Victims of Wrongful Death Since 1981.

2909 Cole Avenue – Suite 118 – Dallas, Texas 75204 – 214-742-2223 – ALL CONSULTATIONS ARE FREE

Copyright © 2019. All rights reserved. Information contained in Legal Waters is intended to be informative only and does not constitute legal advice. Please consult an attorney if you feel you need legal counsel or guidance.


You Mean I Didn’t Have the Right of Way?

Pedestrian and bicyclist rights and how the law strolls and pedals along with them.

The kids are back in school, so the crosswalks are “little-one chaos.” The weather in Texas is getting cooler, so cyclists are hitting the asphalt without fear of heatstroke. All in all, it’s a great time to be outdoors. Save one reason.

There’s your best friend Joe (and lots of other Joes) cruising the roadway (while texting, eating and more) like his own private autobahn. In other words…

Reckless and distracted drivers.

So what’s the law in Texas? Do automobiles always have the right-of-way? What are pedestrian rights at intersections? Do bicyclists have the same rights as motorists?

For guidance, we can turn to our dear friends in the Texas Legislature (Wouldn’t you like to catch a few of them alone in a crosswalk?!) and specifically the Texas Transportation Code (TTC), Chapter 552 (pedestrian rights and responsibilities) and Chapter 551 (bicyclists’ rights and responsibilities).

So yes, there are “responsibilities.” I think we all pretty much know how it works, but here’s a quick and general refresher course:

  • Traffic control signals displaying green, red, yellow lights or lighted arrows apply to pedestrians.

  • Pedestrians facing a red signal alone or steady yellow signal may not enter a roadway.

  • Pedestrians facing a green signal may proceed across a roadway within a marked or unmarked crosswalk unless the sole green signal is a turn arrow.  (Did you know about the “unmarked” crosswalk? And the “sole green arrow” restriction?)

  • Pedestrians facing a “walk” signal may proceed across the roadway and the motorist must yield the right of way.

  • Bicyclists have the same rights and responsibilities as those of motorists, with limited exceptions. That means they must observe all traffic control devices, including yield signs and stop signs.

  • Bicyclists on a roadway who are moving slower than other traffic must ride “as near as practicable” to the right curb or edge, unless preparing to turn left at an intersection or a private driveway.

  • Bicyclists may ride two abreast unless it’s a laned roadway and as long as they don’t impede the flow of traffic. Otherwise, they must ride single file.

That’s your refresher course. There will be a test later. Out on the roadways…

If you want to know more about these laws, just click on the links below.  And slow down, Joe! Drive friendly!

TTC Chapter 552…Pedestrian Rights and Duties

TTC Chapter 551…Bicyclists Rights and Duties

Stay safe out there!



Representing the Seriously Injured & Victims of Wrongful Death Since 1981. 

Charlie Waters Footer

Copyright © 2016. All rights reserved. Information contained in Legal Waters is intended to be informative only and does not constitute legal advice. Please consult an attorney if you feel you need legal counsel or guidance.
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Are My Parents and Grandparents Safe?

Nursing home liability in Texas and what you need to know.

parents_grandparentsThis is a tough topic.

You love your parents and grandparents. They’ve spent their lives loving and doing for you, and you’ve watched them slowly grow older with grace and courage. But now it’s time. They need help on a daily basis and finding the right assisted living facility is a critical decision. You want their needs met, and most of all you want them safe and secure.

The reality in Texas today is that we have many great facilities, but not all are up to standards. And some are simply inadequate or even dangerous.

Nursing homes are licensed facilities and subject to oversight and regulation by state and federal agencies. Nursing home liability is governed substantially by Chapter 242 of the Texas Health and Safety Code, mandating specific standards (will link words).

The Texas agency responsible for nursing home oversight is the Texas Department of Aging and Disability Services (“DADS”).

DADS has a terrific website full of information on available senior services and on licensed facilities throughout the state. If you want to research a specific facility and learn of any regulatory violations, fines, license suspensions, etc., there’s a place on this website that directs you on how to submit an Open Records Act request and obtain the information you need.

Actionable cases against nursing homes/assisted living facilities fall under two broad categories: Abuse and Neglect.

Abuse includes battery, force-feeding, over-medication, excessive use of chemical or physical restraints, verbal degradation or threats, isolation, emotional manipulation and forced or unwanted sexual contact. Such abuse/assault can occur through the actions of a staff member, another resident, visitor or stranger. Such things should be immediately reported, of course, but often the elder victim is too ashamed or afraid to say something.

Neglect can include failure to assist with personal hygiene, failure to provide ample food, clothing and shelter, failure to provide appropriate medical treatment, failure to remedy unsanitary conditions and failure to address and remedy safety hazards.

Signs of abuse and neglect include unexplained bruises, welts or scars, broken bones, sprains or dislocations, caregivers’ refusal to allow you to see the elder alone, torn, stained or bloody underclothing and behavior in the elder that looks like dementia, such as rocking, thumb-sucking or self-mumbling.

It’s unimaginable to think of such things happening to your loved ones, but sadly it occurs far more often than you realize. Be diligent in your facility selection and then closely monitor things after that.

This is your love gift to those who have loved you all your life.

Stay safe out there!



Representing the Seriously Injured & Victims of Wrongful Death Since 1981. 

Charlie Waters Footer

Copyright © 2016. All rights reserved. Information contained in Legal Waters is intended to be informative only and does not constitute legal advice. Please consult an attorney if you feel you need legal counsel or guidance.
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Can I Borrow Your Car?

How Texas law can impose liability on you for accidents caused by someone driving your car…and how you steer clear of it. (Pun intended.)

car_keys“I just need to run a quick errand, and I won’t be gone long. Can I borrow your car?”

Sounds harmless. No big deal, right?

You want to be a good neighbor, friend, relative…whatever the case may be. But before you hand over your keys to your best friend (or to your mother-in-law, for that matter), you need to ask some “wellness” questions. The first one being, “How WELL do I really know this person?”


Because negligent entrustment of a motor vehicle by an owner (you and your related owner liability) occurs in Texas when:

#1 – The vehicle owner entrusts a vehicle to a person who is an unlicensed, incompetent or reckless driver,

#2 – The owner knows this or should know this about the driver, and

#3 – The driver is then in an accident that was the driver’s fault.

So there you have it.

You tried doing someone a favor (the wrong someone, as it turns out), and BOOM! Now you may get sued! The driver of your car can get sued for the accident…and so can you if you negligently provided the vehicle. Basically, Texas law says vehicle owners need to act reasonably when letting others drive their cars.

So what’s reasonably?

If your best friend Joe has had a few beers watching the ball game with you, he’s probably not the guy to send in your car (or his, for that matter) to 7-Eleven to get more chips. Legally impaired drivers are always considered “incompetent drivers” when it comes to negligent entrustment. In other words, you did not act reasonably by letting him drive your car.

But what if Joe is not impaired when you hand over your keys, but he later gets that way (accidentally fills up on margaritas not gas) and an accident follows? Do you, as the vehicle owner, have a liability problem? PERHAPS. It depends on Joe’s history of such behavior and if you knew or should have known about it.

Finally, what if Joe is not impaired and has no history of impaired driving, but he does have a rather rugged driving record? Say, several speeding tickets and perhaps a prior accident or two? Under this scenario is Joe a “reckless driver?” The answer is…POSSIBLY. It will depend on just how bad his driving record is, what you knew about his driving habits and, to some degree, how the accident occurred.

For example, if you KNOW Joe always drives fast, has had several speeding tickets and his speeding then caused an accident, the vehicle owner (you) may well have a legal problem. In other words, it was not a reasonable decision for you to let Joe drive your car.

Bottom line:  

Take a reasonably cautious approach before you let someone cruise off in your car.

Assess the driver. Ask some basic questions. Make sure there’s a valid drivers license. If you know the person has bad driving habits, think twice. If they’re young and inexperienced or older with slowed reflexes, factor that into your decision. If the person is impaired (alcohol, medication, exhaustion, bad vision, etc.), just say no.

Holding on to your car keys may make for an awkward moment and a strained relationship, but it’s far better than an accident through negligent entrustment and all that goes with it. Best friend Joe will get over it!

Stay safe out there!



Representing the Seriously Injured & Victims of Wrongful Death Since 1981. 

Charlie Waters Footer

Copyright © 2016. All rights reserved. Information contained in Legal Waters is intended to be informative only and does not constitute legal advice. Please consult an attorney if you feel you need legal counsel or guidance.
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I Thought My Home Was Safe! What’s a Homeowner to Do?

A How-To: Avoid injuries, minimize liability and protect guests from harm.  (It’s generally considered poor etiquette if invited guests have to leave your home by ambulance.)

1b204b1c-f0f7-47b1-8789-65e530cd9ffaJust what does Texas law say when it comes to the liability of homeowners for conditions on their property? This area of law is well-established but often misunderstood.

Here are the basics:
First and foremost, realize that you (as the homeowner) are NOT an insurer…

Just because someone is injured on your property does not make you automatically liable. Sometimes best friend Joe’s common sense, good judgment and hand-eye coordination simply vacate the premises, leaving him destined to hurt himself through no fault but his own!

In general, the homeowner has to do something unreasonable to create liability. And just what constitutes an unreasonable act? That depends largely on the “classification” of the injured person when on your property, and the nature of the premise condition involved.

In Texas, there are three general classifications with different homeowner responsibilities and duties owed to each:

  • INVITEE: If the injured person was invited by the homeowner to the property and entered the premises for the “mutual benefit” of both, the homeowner can be liable for an injury caused by a dangerous condition on the property IF the homeowner either knew or “should have known” about it and failed to fix it or warn of it.

The homeowner has an obligation to the invitee to reasonably inspect their property to learn of hazards and then make them safe (fix the broken stair, fill in the hole by the walkway, pick up the banana peel, etc.) OR adequately warn of their existence (issue verbal warning, post warning signs, prevent access to an area, etc.).

Examples of invitees? Yard worker, handyman, delivery man, inspector, garbage collector and anyone you invite to your home to do business with you.

  • LICENSEE: If the injured person was not invited to the premises for mutual benefit, but had a general right to be there (think solicitor or best friend Joe coming over to borrow your lawn mower…again), the homeowner’s duty is less.

To the licensee, the homeowner has only an obligation to remedy or warn of “known” dangerous conditions. You do not owe a duty to a licensee to inspect your property for unknown hazards. Oddly enough (and to your surprise I bet), most social guests are considered licensees as are members of your own household.

  • TRESPASSER: If the person was injured while trespassing on your property, the homeowner has only a duty to avoid injury “willfully, want only or through gross negligence.” Now THAT is a very low standard. You practically have to booby trap your property to be liable for injuries sustained by a trespasser.

Regardless of the injured person’s classification, the injury must have been caused by a premise condition that posed “an unreasonable risk of harm.” And THAT will depend on the likelihood of injury from the condition and the utility of its existence (if any).

If the risk of injury from the condition is low or not reasonably foreseeable to the homeowner, no liability should be imposed. Coffee tables and kitchen countertops tend to have sharp corners, but that doesn’t make them unreasonably dangerous. And folks always have a personal responsibility to pay attention to things and to watch where they’re going. That’s a homeowner’s defense in these types of cases.

But the rules change considerably when children are involved…

If a homeowner has an “artificial condition” on the property that attracts a child, and the child wanders over without appreciating the danger and gets hurt, then that child is not considered a trespasser. The child is considered an invitee. Further, small children are generally considered invitees when in your home even if their parents are present as licensees.

So, take a look around your house and yard.

If you see something that could be dangerous and cause harm (particularly to kids), assume it will…and then find a remedy. No one wants an avoidable injury to occur regardless of the legal duties owed or not owed. Sometimes the homeowner needs a safety reminder and a thorough walk-through. And then again, sometimes smart people come over and just do dumb things.

Try to foresee the problem and head it off. Help protect Joe…from Joe, particularly since we all have a little Joe in us.

Stay safe out there!



Representing the Seriously Injured & Victims of Wrongful Death Since 1981. 

Charlie Waters Footer

Copyright © 2015. All rights reserved. Information contained in Legal Waters is intended to be informative only and does not constitute legal advice. Please consult an attorney if you feel you need legal counsel or guidance.

I Thought You Said Your Dog Doesn’t Bite?

How Texas law bites back hard with liability for pet owners, and what you can do to help stay out of the legal doghouse.

5333decc-fb0e-4ea1-9758-6d1de6830232Since there’s absolutely no way your gentle, loving and loyal dog could ever-ever-ever harm anyone, this article is about all those other dogs out there. But on the off-chance your adorable pooch has a really bad day (or feels some peer pressure), here’s what Texas law says about your liability should Fido turn Bito…

As an owner of a dog, you can be held “strictly liable” under the law (meaning automatically liable!) IF:

1) Your dog previously bit a person or behaved like it wanted to,


2) You knew or had reason to know of your dog’s previous conduct.

That’s it!

That’s all the victim must prove to hold the owner of a biting dog legally responsible for the resulting injuries. And that’s not much, folks.

That’s what is so strict about “strict liability.” Under strict liability, all other facts and circumstances are pretty much irrelevant with one notable (and sometimes important) exception. The dog owner can use the defense of “assumption of the risk.” This means that IF the victim voluntarily exposed him/herself to a danger he/she knew and FULLY appreciated, the owner is not liable. But, the dog bite victim would have had to truly known Fido could become Bito. In other words, the victim fully appreciated the risk of what Bito could do and then chose to hang with him anyway.

But that’s not typically the situation in dog bite cases. If the victim did not fully understand the risk involved because of his/her age or lack of information, experience, intelligence or judgment, this defense does NOT apply in strict liability cases.

But wait, there’s more!

If the victim can’t prove Fido had a biting past or that the owner was aware of it (and therefore strict liability does NOT apply) there are ways a victim can still hold a dog owner responsible. For example, the owner can be sued for “negligence.” In a simple negligence case, the focus is more on the conduct of the owner with the allegation being “the owner failed to exercise reasonable care to prevent the animal from injuring others.” In this type of case, it’s not necessary for the victim to prove the dog previously bit someone or acted like it wanted to. There are more defenses available, however, to the owner in this type of case. The owner can claim, for example, the victim caused the incident by teasing or taunting the animal.

Dog bites are often difficult to prevent. Dogs act instinctively at times without warning…ALL dogs. Know your dog and be mindful of his/her surroundings. You can most often determine his environment and thereby his exposure to perceived threats. And keep your dog leashed at all times when in public. The general public deserves no less, and in most places local ordinances require it.

Overall, the law in Texas is tough on dog owners. That’s not going to change. If anything, our laws might get even tougher through a comprehensive statewide statute (something we don’t yet have).

Stay safe out there!



Representing the Seriously Injured & Victims of Wrongful Death Since 1981. 

Charlie Waters FooterCopyright © 2015. All rights reserved. Information contained in Legal Waters is intended to be informative only and does not constitute legal advice. Please consult an attorney if you feel you need legal counsel or guidance.