result image We’re ranked the BEST for one simple reason. We treat our clients fairly, because we CARE.
result image

Recent Results

$5,545,000.00 Wrongful Death / Truck Accident Attorney Fees: $2,180,000 Litigation Expenses: $100,000
result image

Recent Results

$2,500,000.00 Wrongful Death / Workplace Accident Attorney Fees: $833,333 Litigation Expenses: $166,667
result image

Recent Results

$7,500,000.00 Wrongful Death / Truck Accident Attorney Fees: $3,000,000 Litigation Expenses: $320,000
result imageresult image
Michael Headshot

How Trucking Companies Use the Comparative Fault Defense Unfairly:

There exists a defense argument under Texas law known as the “comparative fault defense.” While this defense is intended to be used to allow a negligent defendant to not be unfairly blamed for the whole extent of an accident when he or she is not entirely to blame, trucking companies and their lawyers have gotten a little carried away, and they often assert this defense even when the facts of the case do not warrant it. They do this as an attempt to reduce their liabilities (i.e. its an attempt to pay their victims less compensation).

In this article, we’ll explain how this defense works and how it’s used and abused by trucking companies to their victims’ detriment… But not if we have anything to say about it.


Questions Answered on This Page

  • What is the Comparative Fault defense?
  • How does this defense work?
  • When is it fair for a defendant to use the comparative fault defense?
  • Can multiple people be at fault in a truck accident?

How This Defense Works

If you go back a hundred years ago or more, you would find that in both England and America a legal defense called “contributory negligence” existed. This defense is simple. Essentially, if someone is injured and their own negligence contributed to their injuries (even only slightly) in addition to the negligence of the bad guy who was mostly responsible, the injured person would lose their case. In other words, it doesn’t matter that the reckless and negligent defendant did something bad to their victim, if the victim at all contributed to their injuries, the defendant got off scot-free.

The problem with this defense is that it doesn’t match reality. It is uncommon that anyone is ever perfectly innocent or perfectly guilty, and accidents are not always black and white. While many accidents indeed do follow the ideal formula of “a bad driver who is 100% at fault injures a perfectly innocent person,” many other accidents involve a defendant who is mostly at fault who injured a victim who themselves may have also contributed to the accident a little bit. Under the old contributory negligence concept, all it would take for a negligent defendant to avoid liability was to simply state that the plaintiff also did something wrong.

Imagine if we applied that same logic to a murder case. The accused murderer would be able to say, “Yeah, I killed her. But she started it,” or something equally absurd. And, if the jury bought it, the murdered would be found not guilty. If you think it would be crazy to apply that standard to a murder case, guess what; it’s also crazy to apply that standard to an injury case.

Over time, law makers and the courts began to realize that this standard was unfair to accident victims. In modern times, almost every state in America has done away with the contributory negligence defense. In its place under Texas law is something called the “doctrine of modified comparative fault.” This doctrine essentially says that a plaintiff doesn’t have to be perfectly innocent in order to get compensation. This way, even if a negligent truck driver could make an argument such as, “Yeah, I ran the red light, but the other driver should have tried harder to not get hit by me,” and even if a jury agrees with the trucker and puts some fault on the victim, it doesn’t completely sink the injured person’s case. But it does reduce the value of the case. As such, you can see why, even though the defendant-biased concept of contributory negligence is no longer a part of Texas law, the comparative fault defense is still quite attractive to trucking companies, since it affords them an opportunity to save money by shifting blame onto their victims.

Also, there’s a catch to the modified comparative fault rule we have in Texas. Once a jury says that a victim is mostly at fault for their accident (51% or more at fault), then suddenly modified comparative fault behaves just like contributory negligence and the victim does not get any compensation. Since it’s a tricky concept, let’s reiterate. If an injured person is found to have contributed to their own injuries through negligence of their own, the amount of compensation they receive is reduced proportionate to their their own percentage of fault, so long as that percentage of fault is less than 51%. But as soon as a just says that the injured person is more so at fault for the accident that the person they sued, then the injured person gets paid nothing.

Are Truck Drivers Required to Avoid Vehicles That Cross Their Path? Read More >

Examples of the comparative fault defense.

Bob is driving his car and he is drunk. A tractor trailer swerves into his lane and sideswipes his car, sending it careening into a tree. Bob is badly injured. Now, Bob was drunk, and that is illegal and negligent, so surely that’s bad. But the million dollar question is whether or not the alcohol played a role in his injuries. Let’s imagine that the trucking company has Bob’s car’s computer checked, and it shows that Bob never hit his brakes. That would mean that the truck hit Bob’s car, but, arguably, Bob’s failure to use his brakes is what caused Bob to hit the tree. The trucking company, in making these allegations, is saying that Bob was also at fault for the accident. If a jury agrees and they put 60% of fault on Bob and 40% of fault on the trucker, Bob loses his case and gets no money because he is more than 51% at fault. On the other hand, if the jury thinks, “Sure, Bob was drunk and that’s bad, but none of this would have happened had the truck driver not caused the initial collision,” then it’s possible that they would put 20% of fault on Bob and 80% of fault on the trucking company. Since Bob’s fault was less than 51%, he wins his case. But, let’s say he has $1,000,000 in injuries, since the jury said the trucking company is only liable for 80% of the accident, they only have to pay Bob $800,000. $800,000 is still a lot of money, but maybe now Bob can’t afford a surgery he needs. Maybe he can never work again. Certainly, that $200,000 that he didn’t get would have gone a long way toward helping Bob with his injuries.

The takeaway is that trucking companies have a tremendous incentive to argue this defense. If the jury agrees with them, then, at a minimum, the trucking company can save money. Or, if the jury really buys the defense, then it’s possible that the trucking company will be able to avoid paying anything.

Common Forms of the Comparative Fault Defense Used by Trucking Companies

Now, it’s worth pointing out that our attorneys have great respect for the law, and an even greater respect for justice. We are not at all suggesting that a trucking company shouldn’t be able to defend themselves, nor are we suggesting that, if an accident victim did something bad themselves, that it should be ignored by the jury. Not at all. What we’re suggesting is that trucking companies lie in court in the overwhelming majority or cases, using the comparative fault defense against injured persons who did nothing wrong.

Case in point, we had a case out of West Texas where a man and his wife were heading westbound on I-20 when an oilfield truck sideswiped their car, forcing them off the road and into oncoming traffic. The ensuing wreck killed two people and badly injured a third. In that case, the trucking company was clearly at fault and our client was clearly innocent. Nevertheless, the trucking company, knowing they could have to pay dearly to compensate our client, decided to claim that our client was actually at fault since he should have taken more appropriate evasive maneuvers to avoid the wreck. Naturally, we fought back and ultimately won the case, but I can’t help but wonder how many other lawyers would have been unable to fend off this attack. Had this information been presented to a jury, it could have poisoned the case, allowing a negligent truck driver to get away with killing and injuring people. The point is that, even in cases like the one we just mentioned, trucking companies are willing to say what they have to in order to find some way to spread the blame around.

There are several common variations of the comparative fault defense, including:

  • Lack of a Seat Belt – If you weren’t buckled up when you were injured in a wreck, then the defendant may try to claim that you contributed to the severity of your injuries by choosing to ignore the laws requiring seat belts. However, this is a perfect example to show exactly why you need a truck accident lawyer working for you. Whether or not you were wearing a seat belt doesn’t have a thing in the world to do with how the accident happened. If left unchecked, the trucking company can use this info to poison the well, so you’ll need a lawyer to keep the jury focused on the important part of the case; the truck driver’s negligence.
  • Failure to Keep a Proper Lookout – Even if the truck driver caused your accident by swinging too wide during a turn or running a stop sign, the defense attorney can still claim that you were partially liable due to a failure to be watchful and subsequently react in due time.
  • Texting While Driving – Statistics and case studies are hard to ignore: texting on a cell phone while driving is a major distraction that is believed to be a factor in many accidents. Thus, if you were texting at the time of your accident, the trucking company’s defense lawyers will likely try to suggest their client is not entirely liable for your injuries.
  • Victim Cut the Truck Off – In almost all rear-end accident cases, the vehicle that rams into the back of the other vehicle is determined to be at fault, but not always. If a car cuts in front of an 18-wheeler and slams on the brakes, the truck driver isn’t at fault for that accident. Naturally, then, any time a truck rear-ends a car, the trucking company’s lawyers like to argue that the victim hust’ve cut the truck off.
  • Not Wearing Glasses or Contacts – If you have a prescription to wear glasses or contact lenses, then you need to do so while driving. Even if you have a relatively mild prescription, a defense lawyer could claim that you were contributorily negligent for an accident because you weren’t wearing your lenses while you driving. Some drivers, however, will claim that they don’t need to wear the corrective lenses while driving, but this can be a detrimental move if the defendant chooses to point that out to a jury.
  • Medication or Medical Condition – Some medication will state on the warning label to not attempt to operate machinery. If you were taking this kind of prescription or over-the-counter medication when you were injured in an accident, then the defense may try to suggest that your weakened state due to the medication contributed to the cause of the wreck, relieving the defendant from full liability. In addition, the defense may argue that a medical condition prevented you from reacting to the road obstruction in reasonable time.
  • Insufficient Vehicle Maintenance – While the truck may have caused your accident due to the negligence of the driver, the defense lawyer may measure the amount of space it took your vehicle to brake and then claim there was something faulty with your brakes or tires that caused your vehicle to delay in slowing down. This can be used as a reason to suggest you were contributorily negligent for the accident, thus, diminishing the trucking company’s liability. Particularly when it comes to the tires and brakes, you may need to present evidence of proper maintenance to obtain full compensation.
  • Failure to Take Evasive Action – With this claim, the defense admits it was negligent but attempts to assert that the accident could have been avoided had you taken necessary evasive action. In almost every truck accident case, the defense will attempt to use this ploy. Why? Because, they way they see it, why not? Unless you’re Mario Andretti, chances are that you won’t react perfectly when a 40 ton truck is coming at you, so there will usually be at least something that they can claim you did wrong. With arguments like these, defense lawyers try to bully accident victims into accepting smaller settlements. You need an 18-wheeler accident lawyer who can help you establish that your reaction time or evasive maneuvers were reasonable, and the accident only occurred due to the negligent driving of the trucker.
Myth: The Person Who Caused an Accident Is Required By Law to Compensate Their Victims We don't know why people believe this myth, but that's not how the law works at all...Read More >

While we’ve presented you with a list of various ways in which the defense can argue that you were contributory negligent for your accident, many more other methods are possible. If you want to give yourself the best opportunity to obtain compensation commensurate with the amount of harm you’ve actually suffered in your accident with an 18-wheeler, you need to find the help of a truck accident lawyer who knows how to fend off these arguments.

Why You Should Call Grossman Law Offices:

At Grossman Law Offices, our attorneys have been helping injured Texans take on trucking companies for over 25 years. There are many other situations in which the defense will attempt to prove contributory negligence where none actually exists, and we can protect you from those unfounded claims. But we focus on the truck driver’s misconduct and put you in the most ideal situation possible.

To learn what we can do to help protect you against unfair claims of contributory negligence or to ask any questions you may have on the subject, call us now for a free consultation at (855) 326-0000 (toll free).


Further Reading about Texas Truck Accident Law:

Do you have a legal question? Enter your phone number in the boxes below and we will call you immediately.
- -
Call us anytime toll Free 1-855-326-0000
Attorney Michael Grossman is here to help. Get In Touch. Attorney Michael Grossman is here to help. I'm here to help.
Do you have a legal question? Enter your phone number in the boxes below and we will call you immediately.
- -
Call us anytime toll Free 1-855-326-0000