Insurance companies love to blame victims for their own injuries using the "comparative fault defense"

In the early days of personal injury law, if you sued someone for hurting you and they could convince the jury that you were also negligent, the jury would forgive the person who hurt you of their negligence, and you'd lose your case, flat-out. This concept was called "the doctrine of contributory negligence." Over time, law makers and courts recognized that this contributory negligence rule was an unfair standard. In modern times, most states have abandoned the contributory negligence rule and created their own new method for comparing the fault of multiple parties so that things are more fair.

Texas now uses a scheme called "modified comparative fault," which basically says that if you, the injured person, were also a little bit negligent too, that doesn't ruin your whole case. More specifically, if you're a little bit negligent and you contributed only slightly to your own accident, the person you sue doesn't have to pay for all of your injuries, but, unlike the olden days, they still have to pay you for most of it, and you can still win your case... unless, of course, the jury says that you are mostly to blame for your accident. If the jury says you're more responsible than the person you sued, then it's just like the olden days and you lose your case.

As you can see, if the person who hurt you can successfully argue that you contributed to your own accident a little, then they can save themselves a bunch of money. If they can argue that you were the main cause of your own injuries, then they don't have to pay you at all. It is for these reasons that insurance carriers love to argue the "comparative fault defense," which, again, is really just a fancy way of saying that they will argue that you're also to blame for your accident.

In this article, we'll explain how it works and what a good Texas car accident attorney can do to help you win in spite of this tactic.

Questions Answered on This Page:

• How does the comparative fault defense work?
• How do insurance carriers abuse the comparative fault defense?
• What happens if a jury decides I am partially at fault for my own accident?

When is it fair for an insurance company to use this argument against injured persons?

This defense, like all others, exists so that someone who didn't do anything wrong, or who barely did anything wrong, isn't unfairly forced to pay for an accident that's not totally their fault. In other words, if an unscrupulous person causes their own injurious accident, the court doesn't want them suing the other guy just because injuries happened. No, the court only wants you suing the other guy when he caused your injuries.

Here is an example:

• Joe is driving down the street, speeding, texting, and drinking beer. A car pulls out from a side street and Joe overreacts, swerves, and, due to his speed, makes his car spiral out of control into a light pole. Surely, the other car's driver was in the wrong for pulling out in front of him, but Joe's own contribution to the accident is arguably the main cause of the accident. It would be appropriate for the other guy's insurance to use the comparative fault defense against Joe. Or maybe not. Perhaps a jury would say that no matter how bad Joe was misbehaving, the true cause of the accident was that the other car pulled out in front of him.

When is it unfair for an insurance company to use the comparative fault defense against an injured person?

The problem with this albeit noble-intentioned defense is that it gets abused by insurance carriers every single day. In any given accident, there is probably something that a highly critical person could say that the victim should have done better. An insurance company might say something like, "If you had been driving 10 mph below the speed limit, you could have avoided my client when he ran through the stoplight." Or, "If you had a car with better brakes, you could have avoided my client when they cut you off."

The problem is that even if that stuff is true, you don't have a legal obligation to go below the speed limit or to buy a car that can stop on a dime. However, the other guy does have an obligation not to blow through stoplights or cut you off. Obviously, this is a diversionary tactic wherein the insurance carrier tries to argue that you should be held to a ridiculously high standard but their client's sins should be judged lightly.

Further, it should be pointed out that most of this is speculation based on an absence of information. For instance, if the police report doesn't state how fast you were going, the insurance carrier sees that as an opportunity to suggest that maybe you were speeding. After all, it doesn't say you weren't speeding, or so they'd reason. Or if the police report doesn't mention if you were using your blinker, maybe, they reason, you didn't. Obviously, that's not how the law is supposed to work, nor is logic for that matter.

Read more about how our firm uses forensic science to reconstruct accident scenes here: How accident reconstructions work.

The best way to fight this is with evidence

When you hire an attorney who can comb over the accident scene and quantify every single aspect of your case, you leave no opportunities for the insurance carrier to speculate, nipping this problem in the bud early on. Due to these complicated legal theories, it is imperative to have the facts available to know clearly and precisely what events took place that lead up to a collision. This is where accident reconstruction becomes invaluable. Vehicular accident reconstruction is a sub-set of forensics that deals with fact gathering, analysis, and conclusions about the events of a particular collision. The process is extremely useful in determining the contributing factors to an accident such as the driver's involvement, the conditions of the roadway, the condition of the vehicles, and any other contributing factors.

The first step is the initial investigation. An investigator will go to the scene of the accident and gather as much data as possible. This is done by taking measurements of the accident scene, performing a thorough review of the vehicles, taking eyewitness testimony, and checking the surface of the road way for possible contributors to the accident such as debris, ice, or spilled fuel. All of this information is recorded by taking measurements and preserved by log, photograph, video, or even laser mapping.

Secondly, an analysis of the recorded data will be conducted. A review of the data will help the investigator form various hypotheses and by the use of models and computer software each hypothesis will be eliminated or reinforced until the investigator can formulate an expert opinion on what events caused the accident.

Lastly, the investigator will present his expert opinion. Having completed a final analysis, the investigator is ready to deliver his expert opinion to the jury. Typically, he will use models, diagrams, and animations to convey his theory and the evidence discovered that supports his conclusions.

This is the function of investigating, reviewing, and presenting expert testimony which is important for providing evidence as to who was negligent and who might have had one last clear chance at avoiding the accident. For most persons, the time and cost of getting an expert to testify on your behalf is out of their reach. Grossman Law Offices has the experience and the resources to be able to get the expert testimony you need to review your case

Why you should call Grossman Law Offices:

Grossman Law Offices has over 25 years of experiences handling car accident cases in the state of Texas. We've won literally thousands of cases, and we're confident that we can put you in the best possible position to recover your losses. If you think you have a potential claim, call our offices to talk to one of our experiences car accident attorneys. We're available 24/7. Give us a call today (855) 326-0000.

Read more about defenses to combat your car accident case:

• Failure to show proximate cause
• Act of god
• Failure to keep lookout
• Failure to apply brakes
• Claim of pre-existing injuries
• Fault of a third party
• Unavoidable collision
• Insurance policy doesn't apply