Chemical Exposure and Toxic Inhalation Claims in Texas

Why is it so hard to prove what you breathed?

Exposure injuries differ from trauma in one decisive way: the harm is invisible at first and the proof degrades quickly. Air monitoring data, the safety data sheet for the substance, the release volume and the wind direction at the time are the evidence, and most of it sits with the company that released it. The company usually knows what was released and at what concentration before anyone else does.

That information does not stay available forever. Detector logs can be overwritten, and monitoring equipment can be reset or recalibrated after an event. Weather records are easier to get. They help once you know when the release started and stopped.

What do you need to prove in a chemical exposure claim?

That a substance was released, that you were within its path, and that it is capable of causing the harm you have. Each of those is provable with records rather than recollection, which is why the early requests matter so much.

The first two points usually come from the company’s own documents and from witnesses who were nearby. The third point, whether the substance can cause your particular injury, is a medical question. Medical testimony may be needed to connect the substance to your diagnosis.

What if you were exposed at work?

The answer depends on whether your employer carries workers’ compensation. Under Section 406.002 of the Texas Labor Code, most private employers can choose whether to carry workers’ compensation insurance. If yours does not, Section 406.033 of the Texas Labor Code bars it from arguing contributory negligence, assumption of the risk, or the negligence of a fellow employee. Under Section 406.033(d), you still generally have to show that the employer was negligent. Our page on non-subscriber work injury claims explains that path.

If your employer does carry coverage, Section 408.001 of the Texas Labor Code generally makes workers’ compensation benefits your exclusive remedy against that employer. The statute preserves one exception, for a worker’s death. Where the employer’s intentional act or omission or gross negligence caused the death, the surviving spouse or heirs of the body may recover exemplary damages. That rule protects your employer and its agents and employees. A release often involves other companies, such as the plant owner, a contractor or the supplier. A claim against a company other than your employer can be separate from workers’ compensation. A general contractor can be different. Under Section 406.123, a general contractor that has agreed in writing to provide workers’ compensation coverage to a subcontractor’s employees may be treated as their employer for workers’ compensation purposes.

What if you were partly at fault?

Texas divides responsibility by percentage. Under Chapter 33 of the Civil Practice and Remedies Code, a claimant may not recover if found more than 50 percent responsible. Otherwise, your recovery is reduced by your own percentage of responsibility. That is one reason to identify every company involved in the release, the equipment and the response.

What should you preserve right away?

Air monitoring and detector logs, the safety data sheet, the release report filed with regulators, and the clothing worn that day. Ask for a copy of any medical evaluation performed on site rather than relying on being told what it said.

Put the clothing in a sealed bag and do not wash it. Write down where you were standing, what you smelled or saw, when your symptoms started, and who else was nearby. Keep the names of coworkers or neighbors who were also affected. Save any shelter in place or evacuation notice you received, along with text messages about the event.

How long do you have?

A Texas personal injury claim generally must be filed within two years after the day the claim accrues, which is usually the date of the injury. That rule is in Section 16.003 of the Civil Practice and Remedies Code. Evidence in an industrial setting moves faster than that. If your symptoms appeared weeks later, tell us both dates when you call.

Primary sources

• Tex. Civ. Prac. & Rem. Code ch. 16 (limitations)
• Tex. Civ. Prac. & Rem. Code ch. 33 (proportionate responsibility)
• Tex. Lab. Code ch. 406 (Section 406.002, elective coverage; Section 406.033, employers without workers’ compensation coverage; Section 406.123, general contractors)
• Tex. Lab. Code ch. 408 (Section 408.001, exclusive remedy)

Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.

This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.