If you’ve spent any time around children (or were once one yourself) you know that kids often excuse bad behavior by blaming the actions of another party.
Not unlike schoolyard disputes, when a personal injury suit is filed, both parties attempt to explain that the injury was, at least to some extent, the fault of the other party. How much fault each party bears directly influences the amount of damages – such as medical expenses, loss of wages, and property damage – that the plaintiff can receive in the lawsuit.
“Fault” in the legal sense is determined by a negligence standard. “Negligence” is the failure to act as a reasonable ordinary person would have acted under the same or similar circumstances. If that failure contributes (expressed in percentages) to the cause of the injury, there is some “fault.”
Modified Comparative Negligence in Personal Injury Cases
There are 3 types of negligence used in personal injury cases:
- Contributory negligence: If the plaintiff is at all responsible for their injuries—that is to say that they failed to act as a reasonable ordinary person would have acted–they can’t recover any damages.
- Comparative negligence: Responsibility of all parties is apportioned into percentages and if the defendant is any percentage at fault, the plaintiff may recover the percentage of damages equal to the same percentage that the defendant is found at fault, regardless of how much that percentage is.
- Modified comparative negligence: Responsibility of all parties is apportioned into percentages and the plaintiff may recover the percentage for which the defendant is found at fault so long as the plaintiff is not over 50% at fault (51% in some states) or greater. If the plaintiff is more than 50% at fault, then the plaintiff may not recover anything.
Texas’s legal system uses modified comparative negligence, which is a stricter standard than comparative negligence but not at strict as contributory negligence.
Ways to Prove Fault in a Personal Injury Case
To prevent being barred from recovering the full amount of damages you are owed, parties have several ways that help prove fault in a personal injury case. For example, here are a few steps your attorney can take to prove fault in your personal injury case:
- Interview witnesses to the injury
- Request copies of surveillance footage if applicable
- Seek medical attention and keep track of your medical bills, reports, diagnostic tests, and office visits
- Document any lost wages related to your accident
It’s also a good idea to ask a trial attorney to see whether your damages can be recovered under your own auto insurance policy, even if you are partially at fault. Some auto policies, for instance, have Personal Injury Protection (PIP) that covers a party up to a maximum amount.