Texas car insurance carriers often abuse the "failure to keep a proper lookout" defense:
Under the law, driver's have a duty to "keep a proper lookout." That essentially means that drivers must pay attention and be ready to react in case something unexpected happens.
Under Texas law, defendants who are sued by injured persons are allowed to fight back against the injured person by asserting that the injured plaintiff contributed to their own accident---and maybe even caused it---by failing to keep an adequate lookout for dangers on the road. In this article, we'll explain how defendants can try to offload liability from themselves and onto you with this defense.
Questions Answered in This Article:
- How does the "failure to maintain a proper lookout" defense work in car accident cases?
- What are examples of the failure to maintain a proper lookout defense that are valid?
- What are instances of when this defense is not valid?
How this argument is supposed to be used.
After an accident, it's up to courts to sift through the facts and determine what happened. Juries only award money to actual victims, not people whose injuries are mostly their own fault. The court has many ways of separating the claims of innocent victims from those who are undeserving of compensation. The collection of tactics that defendants use to fight back against injured plaintiffs are known as "defenses," "defense arguments," "defense strategies," etc. The whole idea behind a defense is that it is supposed to exist to give a wrongly accused person of telling the court essentially, "I'm not actually to blame," or, "I'm not entirely to blame."
Surely, it's a good thing that those who are wrongfully accused of causing an accident can defend themselves against the false accusations. However, the validity of the defense argument being used is only as good as the defendant is honest, and many truly negligent defendants like to twist the law and argue that they are not entirely at fault, even when they are.
One common way that this is done is by arguing that the injured person failed to keep a proper lookout. To understand when it's proper to use this defense, imagine the following scenario:
- Steve is playing with his phone while driving, texting and reading Facebook. A car pulls out of a side street into Steve's path. Steve could have avoided the accident if he had been paying attention, but he plowed right into the side of the other car. Even though that other driver failed to yield the right of way, if a witness saw Steve texting and noticed that he never swerved or hit his brakes, the person who hit Steve could rightly argue that, even though he was negligent, he is not entirely to blame.
In a nutshell, defendants are afforded the option of arguing against the person who sues them if that person legitimately failed to notice what was unfolding in front of them. The idea a work is that they too are responsible by omission. That's fine and good when it's true, but not all insurance carriers and their lawyers care about the truth.
How defendants misapply this defense.
As we pointed out, there are times when a defendant is unfairly blamed for the whole car accident, even though the person who got hurt wasn't keeping their eyes on the road. That makes sense. But the part that is unfair and infuriating about this defense, is that almost any scenario can be misconstrued to make it seem as if the injured person was not paying attention.
Consider this example:
- You're driving down the street and a car that is travelling the opposite direction suddenly makes a left turn, cutting across your path. It all happens in the blink of an eye, and you simply panic and don't exactly make the single best moves to avoid the accident. Your car hits their, you get badly injured, and you file a personal injury lawsuit against the other driver. Only, they argue that you must not have been paying attention; that you failed to keep a proper lookout. Obviously, they are trying to misconstrue what really happened in order to turn your panicked reaction into something malicious.
You can see where we're going with this. It's simply too easy for a defendant to pull "evidence" of your supposed infraction out of thin air, and the court will usually allow them to do so... At least, until your car accident attorney beats up on them in the courtroom.
This unscrupulous tactic is used by insurance carriers all the time. In literally hundreds of the thousands of car accident cases we've litigated, we've had this defense thrown at us. As just a matter of course, the defendants assume that you did something wrong. They then take every fact of the case and misconstrue it to try to make you look bad. Again, we're able to deal with this when it comes up, and the possibility that many defendants are willing to play hardball shouldn't discourage you from bringing a claim, but it's absurd nonetheless that car insurance carriers are so willing to engage in such nonsense.
Perhaps of even greater concern, this is a common pre-lawsuit trick insurance adjusters use. In a recorded statement, the insurance company adjuster will ask you a series of confusing questions designed to make it sound like you were not exactly paying attention to the road.
How a skilled attorney can fight back against false claims.
First, it's extremely important that you be completely honest with your lawyer. Were you paying complete attention to the road before the accident? Often enough, folks don't remember what they were doing in the moments before they were hit by another car, but if you do: tell us. Even if you were doing something "imperfect," we can work hard to keep that from becoming the scapegoat the negligent defendant will focus a jury on.
Second, your lawyer can prepare you to testify. At no point are you to tell a lie, but at the very same time, you shouldn't be talked into saying something negative about your behavior in the accident that is likewise not true. Some tricky defense attorneys can twist words around. Our job is to prepare you to tell the truth, and nothing but the truth, and we'll be there when you testify to make sure the insurance company's lawyers don't get out of line.
Third, if needed, your attorney should hire an accident reconstructionist to show how there was no way you could've avoided the accident, regardless of what the defendant might claim. We've had cases where our client was maybe playing with the radio or their phones, but we were able to show that even if they'd been paying 100% attention, it'd never have mattered. Remember, it's not enough that you supposedly weren't keeping an adequate lookout, but that your failure to do so contributed in some material way to the incident.
Imagine you were driving blindfolded. If a car cuts you off with only mere feet to spare, your ability to react wouldn't have been a factor anyway; that accident was unavoidable on your part. The point is, the devil is in the details, and we like to err on the side of having too much evidence rather than not enough, so that if these types of accusations are made, we can point out any flaws in their position.
Call the Experienced Dallas Car Accident Attorneys at Grossman Law Offices.
We have over 25 years of experience handling car accident cases in the state of Texas. We'll be happy to answer whatever questions you may have regarding your potential claim.Call us now at (855) 326-0000 to learn more.
Commonly, we've also seen the defendant party use one of the following defenses to combat your car accident case. Click on any of the articles below to read more:
- Failure to show proximate cause
- Act of god
- Failure to apply brakes
- Claim of pre-existing injuries
- Fault of a third party
- Unavoidable collision
- Insurance policy doesn't apply