If you were injured in an accident that you are partially to blame for causing, you might fear that you will be denied the chance to recover damages for your injuries. While your actions will impact your case, you can still pursue compensation.
Fortunately, Texas does not use the strictest contributory negligence rules. In Texas, victims are allowed to recover compensation even if they are found partially responsible for causing their injuries. However, determining liability in these cases can be difficult and victims could be denied damages if they are found mostly at fault for causing the accident.
Call The Queenan Law Firm, P.C. today at (817) 476-1797 for a free case review with our Arlington personal injury attorneys.
Can I Still Recover Compensation If I Am Partially at Fault for My Injuries in Texas?
When someone is injured by another person’s actions in Texas, they can usually recover damages for their injuries. However, you will likely wonder if you will still be able to recover compensation if you were partially at fault for causing your injuries. The good news is that Texas allows victims to recover damages even if they were partially to blame for causing their injuries. However, your actions will contribute to how much compensation you eventually recover.
Proportionate Responsibility in Texas
Like many other states, Texas employs a more modern standard to deal with the issue of liability, commonly known as a “modified comparative fault” rule. Texas uses the same type of standard but is referred to as “proportionate responsibility” in this state. Under Tex. Civ. Prac. & Rem. Code § 33.001, each party is responsible for their share of causing the damages involved in an incident. This is a much fairer system than the one historically used in the law. Under the old rule of “contributory negligence,” victims would have been barred from recovering compensation if they were only slightly to blame for their injuries.
Under Texas’s proportionate responsibility rule, you can recover damages as long as you were less than 50% at fault for causing your injuries. Who bears the most blame can be difficult to show, but our Irving personal injury attorneys can help gather evidence to tip the scales in your favor. Of course, the party that injured you will typically try to place all the on you. According to the proportionate responsibility rule, you will be barred from receiving damages if you were 50% or more at fault for your accident.
The most common situation where proportionate responsibility is argued is in Texas car accidents. In some cases, both drivers did something that contributed to causing their accidents. For instance, one driver failed to use a turn signal and got hit from behind by a driver that was already tailgating. If the driver that failed to use their turn signal was awarded $100,000 but found 10% to blame, their award will be reduced by the percentage of their fault to $90,000. However, if the driver was found exactly 50% at fault, they would be barred from recovering any damages.
Who Decides Proportionate Responsibility in Texas
Texas is an “at-fault” insurance state. This means that injured parties must recover damages from the party responsible for causing them. This typically takes the form of filing a third-party insurance claim against the person that injured you or a lawsuit. However, this is an adversarial system, and insurance companies are reluctant to pay out on claims, especially if you were partially to blame for your injuries. In many cases where both drivers share some fault, it is necessary to take the case to trial.
If you are pursuing compensation in an insurance claim, you will need to provide evidence that shows their policyholder was more at fault for the accident. They will likely argue that you were more to blame in order to reduce your settlement and might outright deny your claim without an attorney arguing your case.
If an insurance company refuses to pay, it will be necessary to file a personal injury lawsuit against the other party to recover compensation. You will still need to provide evidence to support your claims in a lawsuit, but the question of fault will be left up to a judge or a jury. This might be the best option in a situation where you are partially to blame for your injuries since a judge or jury will not have the same financial bias as the insurance company.
What You Need to Prove to Recover Damages for Your Injuries in Texas
Regardless of whether you are proportionately responsible for causing your accident in Texas, you will need to prove your case to recover any damages. To do this, you will need evidence to prove four distinct elements that will show the other party was more to blame for the accident. These elements are duty, breach of duty, causation, and damages. However, the party that injured you will also need to prove these elements to establish your negligence if they are employing the proportionate responsibility defense.
First, you must prove that the other owed you a duty of care to recover damages for your injuries. There are several different types of duties, including being careful, taking reasonable steps when in public, and refraining from doing anything that causes harm. The law imposes a duty on all persons to exercise reasonable care for the safety of others. For instance, every driver has a duty to drive with care and follow all traffic laws. A person who fails to act with reasonable care can be held liable for their portion of causing the accident.
Next, you must prove that the other party breached their duty of care by not acting cautiously or reasonably when they had a duty to do so. In basic terms, a breach of duty is the actual act or omission committed by the person who injured you. Going back to a car accident example, speeding or running a red light would be an example of a driver breaching their duty of care.
You will then need to show that the breach at least partially caused the injuries you suffered. This means establishing a legal cause-and-effect relationship between an act or omission and a resulting injury. Basically, you must prove that but for the defendant’s negligence, there would have been no injury or damage suffered. This means that an independent intervening event was insufficient to cause harm without any negligence on the defendant’s part, including your own actions or negligence.
Lastly, you must provide evidence to show how much money you have lost as a result of your injuries and how much more your stand to lose over time because of them. This is said to be “real” damages, as opposed to imagined damages, like hurt feelings. However, damages are not just measured in finances but also in the emotional and physical impact that your injuries have had.
If you can establish these four elements and were not found %50 or more at fault for your injuries, you should recover compensation for your damages. Keep in mind that the other party will also need to prove these elements against you if they are asserting that you are partially to blame for the accident.
Evidence Used to Prove the Other Party Was More at Fault in a Texas Personal Injury Lawsuit
To prove that you were not mostly to blame for your injuries, you will need evidence to show that the other party’s actions were worse. Establishing liability can be challenging, so having as much evidence as you can obtain is critical to staying under the 50% cutoff for compensation. The following are some of the most common types of evidence used to prove fault in a Texas personal injury case:
The medical records you provide should include all treatment received after the accident and up until now. This includes prescriptions, doctor visits, and any other medical procedures or treatments related to your injuries. Your medical records will show that you are serious about treating your injuries, which could support your case during the recovery process. If you wait to get medical treatment, it can be very difficult to recover damages if the other side can also argue that you were partially to blame for the injuries you failed to treat immediately.
Police reports are official documents filed with police departments after an incident occurs. They include details such as names of witnesses, descriptions of vehicles involved in an accident, etc. These reports are very useful because they can help prove who was at fault for causing your injuries. Police reports may also help prove how serious your injuries were if you needed medical attention after the accident occurred. If you are unsure of how to obtain a copy of your police report, an attorney can help you get it from the law enforcement agency that investigated your case.
Photos of Damage
Photos can also be incredibly helpful in proving that the damage caused was more the fault of the other party. Photos should be taken when possible immediately following an incident so that they accurately depict the extent of damages sustained at the time of occurrence. Do not hold back. Take photos of anything that seems relevant and can help determine liability with more certainty, including your injuries. The more evidence you have, the better your chances of your liability arguments prevailing during insurance negotiations or a trial.
Your personal recollections are first-hand accounts of the accident you were injured in. In some cases, your recollection of the event might be the only other evidence in your case besides your medical records, so it is important to remember the details of the incident. Even one small fact might be enough to show that the other party was slightly more at fault, allowing you to still recover damages. In other cases, personal recollections are used to provide credibility to other evidence establishing liability.
Witness statements are written reports given by witnesses at the request of an attorney or other party involved in a lawsuit. Attorneys can interview witnesses during depositions, but their statements are recorded so that they can be used later if necessary. This can make all the difference in your ability to recover compensation if the witness can provide testimony that the other party acted more negligently than you.
Video footage can be extremely helpful in personal injury cases because it usually shows exactly what happened during an incident. For example, it could show how fast someone was driving or what caused them to lose control of their vehicle. Video footage may also show how vehicles were positioned at the time of impact, which can help determine liability in an accident involving multiple vehicles. However, it is rare for a surveillance camera to capture footage of an accident, but it is becoming more common as more properties have cameras installed.
Damages You Could Still Recover for Your Injuries in Texas
If you are less than 50% at fault for your injuries, you are entitled to recover damages, although at a reduced amount. You might have several forms of damages resulting from your injuries. The following are the most common damages sought in a Texas personal injury lawsuit:
Medical bills are one of the most common types of damages recovered in a personal injury lawsuit. If your injuries required medical attention, you could expect to recover reimbursement for the cost of treatment. The amount of your reimbursement would depend on the severity of the injury and whether it resulted in permanent disability or disfigurement. You may also be entitled to recover compensation for future medical expenses based on the likelihood that you will require future treatment.
If you were unable to work due to an injury caused by someone else’s negligence, then you may be able to recover lost income as part of your settlement. Lost income is calculated by estimating how much money you would have earned if not injured and then calculating how much less money you actually made because of your injuries.
Property damage is another type of compensable damage in a personal injury case. If someone else’s negligence caused damage to your property, such as a car accident, then they may be liable for paying damages related to repairing or replacing that property.
Pain and Suffering
Pain and suffering is another common type of damages sought in personal injury lawsuits. These damages are non-economic, however, and are difficult to calculate. Pain and suffering refer to the physical and emotional pain caused by an accident. Pain and suffering can be awarded for mental distress over things like loss of enjoyment in life and physical pain or disfigurement.
Our Texas Personal Injury Lawyers Can Help
For a free case consultation with our Fort Worth personal injury attorneys, Contact The Queenan Law Firm, P.C. at (817) 476-1797.