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How the "failure to apply brakes" defense works in a car accident case:

Another common defense that the at-fault driver's insurance company will use is that you failed to apply your brakes in a timely manner. This article will discuss how this defense is used in the carrier's attempts to reduce the amount of compensation they have to pay you, or even pay you nothing at all. We'll explain how insurance carriers argue this position unfairly and how our Dallas car accident attorneys can help you get the compensation you're owed.


Questions Answered on This Page:

  • What is the "failure to apply brakes" defense use in car accident cases?
  • How does this defense get abused by car insurance carriers?
  • What are some examples of how the failure to apply brakes defense is used in a car accident case?

How this defense actually works.

Unlike some other defenses that amount to a bunch of legal mumbo jumbo, the concept here is transparent---the defendant is arguing you should have slowed down, and had you done so, the wreck wouldn't have happened. It's that simple. The bottom line of this defense is this: if the lawyers for the defendant's insurance carrier can show that you failed to brake when you should have, they will not be responsible for all of your injuries and can therefore compensate you less.

There is no special formula, however, for determining when and where you should have applied your brakes. This would be obviously impossible since what is considered reasonable and prudent in one circumstance might not be in another. Instead, it's a very fact-intensive inquiry about who did what and when. The problem is that, with hindsight, a clever defense lawyer could well paint you as a negligent driver because---whatever the circumstances of your accident---you maybe could have applied your brakes and avoided the accident.

Your attorney's job is prove them wrong. He'll likely need to get any witnesses' statements, put the driver who hit you under oath, and even hire an accident reconstructionist to recreate the scene.

Examples of this car accident defense in practice.

These are some of the scenarios we've encountered in over 25 years of handling car accident cases where defendants' lawyers tried to argue that our clients failed to correctly apply brakes:

  • We had a car accident case in Austin where the defendant crashed his car after a drunken night on the town. Our client turned a corner, didn't have time to stop, plowed into the defendant's car. The other lawyer tried to argue that, if our client had tried to slow down, the accident wouldn't have happened. We were able to show through reconstruction analysis that our client had no opportunity to avoid the accident. We eventually secured a large settlement for her.
  • In another case out of San Antonio, we represented a man who was nudged off the road by pickup truck driver who was texting. The defendant's lawyers claimed that our client should have braked while on her way off the road. As absurd as that sounds, their expert witness made a semi-credible case that a jury could have bought. In the end, we were able to secure our client's family a large settlement because we eventually showed the defendant's lawyers that a jury would ultimately refuse to believe them.
  • A Dallas client of ours came upon an accident scene, slowed down quickly, and then the driver behind him rear-ended him. They claimed that, contrastingly with the prior two examples, that our client applied his brakes too fast. Our reconstructionist was able to show that our client slowed as reasonably as possible, given the circumstances.

Why you should think about calling Grossman Law Offices.

We believe that if you are injured in a car accident and it was someone else's fault, then that person needs to be held accountable. Our experienced car accident attorneys at Grossman Law Offices have been fighting against insurance companies for over 25 years.

If you or someone you know is tired of the blame game from the insurance company and you are tired of the run around, then contact our law firm today. Our attorneys are available day and night to take your calls. Call us at (855) 326-0000 to receive a free consultation.


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: