Who Is At Fault In a Rear-End Accident?

rear-end collision

In a rear-end car accident in Texas, a jury can find either driver, both or neither at fault for the collision. There is an erroneous belief held by many that if you hit someone from the back in Texas, you are automatically at fault for the accident. This statement is far from the truth and demonstrates a misunderstanding of how Texas personal injury law works. A jury has the right to apportion liability or “negligence” between the drivers or find none at all, even in a rear-end collision.

The Requirement Of a Negligence Finding Even When You are Rear-ended

Texas is what is known as a comparative negligence state. In order to win a judgment against another driver for damages caused in a car accident, you must obtain a jury finding that the other party was negligent. “Negligence” means: “the failure to act as a person of reasonable prudence would have acted under the same or similar circumstances.” A question will be submitted to the jury asking whether they find that the other driver’s negligence, if any, was a proximate cause of the automobile collision. They must find the other driver was negligent in order for you to make a recovery. This is true even when you are driving the rear-ended car.

Apportioning Of Liability In Rear-end Collisions

Texas is not an “all-or-nothing” state. In other words, more than one person, including you the victim, can be found negligent in an auto collision. Thus, often the question is submitted as: “Did the negligence of any of the following persons proximately cause the motor vehicle in question?” It will then have a list of names which may include yours, the other driver’s name and even a “John Doe” driver who contributed to the accident and then fled the scene. The names will have a blank for the jury to write “yes” or “no” next to each. If they find more than one person’s negligence contributed to an accident, then they are asked to apportion the liability by assigning a percentage to each.

If the percentage assigned to you exceeds 50%, you recover nothing. If your percentage is under 50%, you can recover only the percent for which the other persons are responsible. Thus, if the jury finds your negligence was 30 percent of the cause of the rear-end accident and the other driver’s negligence was 70 percent of the cause, and awards you $10,000.00, you would only recover $7,000.00 due to your comparative negligence. But, if they find you 55 percent and the other driver 45 percent, you recover nothing.

The Lead Driver’s Negligence in a Rear-end Collision

One might ask here: “How could the person who got rear-ended be found negligent?” The answer is this: there are two sides to every story.

You undoubtedly feel you were doing exactly what you were supposed to be doing and got hit from behind so it should not be your fault. However, the other drive probably feels different. He may argue that you stopped on a green light when it was not safe to do so. Or perhaps, he will claim you slammed on your brakes or slowed unexpectedly for no reason in front of him, thereby causing him to hit from behind. He could also claim that you started to go and then stopped unexpectedly. All of these are examples of arguments commonly made by defense attorneys and their clients in an attempt to get juries to assign some percent of the responsibility upon the person who was rear-ended.

When your case goes to trial, it will be decided by 12 strangers who were not there when the auto collision happened. They will be asked to listen to both sides and decide what they think happened. 10 out of 12 must find for you as the plaintiff to win. They will not get to hear who received the ticket inmost cases because criminal traffic tickets are generally not admissible in a civil liability case. So they all argue until they reach a compromise they can all live with. That compromise is often a split liability verdict.

The Unavoidable Accident Defense

An unavoidable accident is an event that occurs but is not caused by the negligence of any party to it. See Dillard v. Texas Electric Cooperative, Case No. 03-0655, Texas Sup Ct. 2005. An example of this might me a wild animal darting into the road causing an accident. If the passenger in a vehicle that hits a deer sues the driver, the driver will likely claim the accident was an “unavoidable accident.” If the jury agrees, then the passenger cannot make any recovery against the driver.

The Sudden Emergency Defense

A sudden emergency is similar an unavoidable accident in that it is a way of seeking a finding of “no negligence” on the part of the defendant. To succeed on such a defense, the defendant must show that:

  1. an emergency arose;
  2. it was a sudden and unforeseeable event that arose through no negligence or fault on the part of the defendant, and;
  3. the defendant responded to the event as a reasonable prudent person would have under the same or similar circumstances but the accident occurred anyway.

The key to understanding this defense is realizing that it relieves a defendant of responsibly for an accident that occurs after an emergency he/she did not cause arises so long as he responded reasonably. An example of a”sudden emergency” might be where a driver has an unforeseen heart attack wile driving down the road and loses control of the vehicle causing an accident.

Applicability to Rear-End Accidents

Both of the above defenses may come into play when a rear-end accident occurs. If they do, you could find yourself in a situation where nobody is liable even though you were rear-ended and you are stuck with the bills. The common mistake people make is that they see the case only from their own perspective. The think “well I got hit from behind so it is not my fault…ergo it must be their fault.” Unfortunately, exclusion of liability on the former does not equal liability on the latter. In Texas, there is also the possibility that nobody is liable for the collision.

How the Rear-ended Car Driver Gets Blamed

One way a sneaky insurance adjuster can spoil your case, even though your car was the one rear-ended,  is by calling you up and getting you to agree on record that the accident was a sudden emergency or that traffic “stopped suddenly.” They may even preface it by saying “well, we will probably just accept liability but I need a recorded statement from you to complete my investigation.” Then they lead you:

Adjuster: “You didn’t do anything to cause this did you?”
You: “oh no, no.”
Adjuster: “traffic just stopped suddenly and you had to slam on your brakes but there was nothing you could do right?”
You: “oh sure, right.”
Adjuster: “that’s what our client said it wasn’t your fault because you couldn’t stop and neither could she when traffic stopped suddenly, don’t you agree with that too?
You “oh yes, sure.”

Congratulations. You just set up their sudden emergency defense. You can expect to receive a denial letter in the mail shortly.


The above exchange is but one way an injured victim who was rear-ended can be tricked by an adjuster into damaging their own case. Don’t make the mistake of thinking that because you were rear-ended and the adjuster seems friendly that they are just going to accept responsibility and pay your claim. They have many tricks up their sleeve that they can pull to destroy or damage your case. You need to get the advice of an car accident lawyer before you talk to the insurance adjuster and you should never agree to give a recorded statement without having your own legal representative to advise you.

Call Simmons and Fletcher, P.C. at 1-800-298-0111 for a free consultation before you get tricked into hurting your own claim. The initial consultation is always free and we charge no fees for handling your case unless we make a recovery on your case.


Paul Cannon

Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law (2005). He has earned recognition as a Super Lawyer by Thompson Reuters in 2017 & 2018, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give education talks and media interviews on dog bite law.