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NEGLIGENCE The elements of negligence are set forth in the case of Carr v. Union Pac. R.R. Co., ____S.W.3d____, 2011 WL 4489982 (Tex. App.-Houston [4th District] 2011 no pet.), as follows: Elements: 1. The existence of a legal duty; 2. Breach of a legal duty; 3. Proximate causation, and; 4. Damages. Factual Background: This suit arises out of a train derailment occurring across the road from the Carr’s residence. The derailment caused one railcar to derail and spill the contents, methyl isobutyl ketone, a colorless chemical used primarily as a solvent. The Carr’s noticed the smell of the chemical and immediately complained of headaches, congestion, and runny noses. At the Trial Court level the Carr’s failed to provide…show more content…
the fact that the operation of the intervening force is due to a third person’s act or his failure to act; 5. the fact that the intervening force is due to a third person’s act that is wrongful toward the other and as such subjects the third person to liability to him; and 6. the degree of culpability of the third person’s wrongful act that sets the intervening force in motion. Factual Background: On or about the evening of March 9, 2000, Crawford, an ophthalmologic surgeon was driving in her vehicle when Henley made an improper left turn and struck Crawford’s vehicle. Crawford sustained injuries due to the accident. Crawford was receiving treatment from her primary physician as well as four other physicians and Physical Therapists. Crawford was expected to have need of care for approximately 8-9 more months but was still able to perform her duties as an ophthalmic surgeon. On or about June 14, 2000 a Physical Therapy aide conducted an unprescribed procedure on Crawford. Crawford immediately complained of new symptoms. Upon examination by MRI Crawford was found to have injuries previously unnoted. The injuries prevented Crawford from performing her duties or assisting with surgeries. Crawford sued and damages were awarded, Henley 50%, Therapists 25% and Crawford 25%, totaling $6,293,035.65. The Suit: Henley appealed Henley argued Crawford had sustained two separate injuries. The original injury from the car accident.

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