As the legalization of marijuana becomes more prevalent and the use more accepted, trial attorneys need to be mindful of how this hot button topic may affect their cases. Although it has been placed on the ballot, Texas has not legalized marijuana. However, the City of Dallas and other large cities have adopted "cite and release" for an individual who has been found with 4 ounces or less of marijuana instead of making an arrest.1
Trail attorneys should be aware that jury opinions of personal injury cases involving marijuana are gradually changing. Traditionally, juries would rule against a party who was under the influence of marijuana during the event that led them to litigation. For example, a Harris jury in Guillory v. Iworks Personnel Incorporated2 ruled against the Plaintiff, since he was under the influence of marijuana when the on-the-job injury occurred.
In Guillory, the Plaintiff alleged improper training on a bailer, which led to the amputation of his foot while using the bailer. In response, the Defendant argued that the Plaintiff's own actions caused his injuries. Additionally, the Defendant claimed that the accident was caused by the Plaintiff who was under the influence of marijuana at the time. The jury agreed and found that the Defendant was not negligent.
However, legalization of marijuana in several states including Colorado, California, Washington, Nevada, and Oregon have indicated a change in public opinion regarding marijuana. This change in public opinion is starting to appear in recent jury verdicts. Marijuana use by a party in litigation is no longer the smoking gun it once was.
For example, in Frank v. Drakes3, Plaintiffs, passengers in Defendant's vehicle, filed a claim against the driver alleging negligence and gross negligence arising from a car accident. The Defendant was arrested and found to be under the influence and in possession of marijuana. The Defendant claimed that the Plaintiffs knew of his condition. Ultimately, the jury found no gross negligence.
Likewise, in Security National Insurance Co. v. Murrell4, a Tarrant County jury found a man was not legally intoxicated following a positive test for marijuana after a work related injury. The Plaintiff filed a workers' compensation claim following an incident where he fell off a roof. The workers' compensation carrier denied his claim given his intoxication at the time of the accident. The Plaintiff conceded that he had been under the influence of marijuana during the previous weekend. The jury found that the Plaintiff was not intoxicated at the time of the incident.
Further, in Crump v. Goin5, a jury awarded over $10 million dollars to a Plaintiff inspite of her 40% contributory negligence stemming from her alcohol and marijuana intoxication. Defendant argued that the car accident that left the Plaintiff paralyzed was caused in part by her intoxication. Although the jury placed 40% of the negligence on the Plaintiff, it was not enough to bar her recovery and the jury awarded a large verdict.
A change in public opinion will undoubtedly be displayed in Texas courts. As lawyers, we should be mindful of how the use of marijuana affects our cases and how it will affect the jurors' opinions.
1. Young, Stephen, After Several Steps Forward In 2017, Here's What's Next for Texas Marijuana Policy, Dallas Observer, Dec. 27, 2017, http://www.dallasobserver.com/news/texas-marijuana-laws-in-2018-and-beyond-10201247.
2. Guillory v. IWorks Personnel Incorporated, 2015 WL 11022692, (Nov. 13, 2015).
3. Frank v. Drakes, 2010 WL 6556738, (Dec. 16, 2010).
4. Security National Insurance Co. v. Murrell, 2011 WL 992179, (Feb. 08, 2011).
5. Crump v. Goin, 2015 WL 1927474, (Feb. 11, 2015).