- Do Personal Injury Lawyers Make House Calls?
- How do I Prove Medical Expenses in my Accident Injury Case?
- Do I Really Need a Personal Injury Lawyer for my Accident & Injury Case?
- What Medical Expenses Can I Recover in my Accident Injury Case?
- Do I Still Have an Accident Injury Case if I Was Also at Fault?
- Does a No Win No Fee Personal Injury Attorney Suit Your Case?
- How Much Is My Personal Injury Claim Worth
- » Read all personal injury articles
Recovering Damages in Personal Injury Cases: Article 4
This article is part of our Recovering Damages in Personal Injury Cases Series. You can access the full series in our Accident & Injury Info Center.
Do I Still Have an Accident Injury Case if I Was Also at Fault?
As we discussed in another article (read our 'How do I Prove Medical Expenses in my Accident Injury Case?' article), the question about recovering medical expenses in a personal injury case in Texas is governed in part by the Texas Constitution, in part by statute, and in part by court cases. The importance of this fact is discussed in the referenced article and won’t be repeated here, but we suggest you read that article in connection with learning the answer to the question that is addressed in this article.
With this preamble in mind, because it also applies to what we are discussing in this article, we are almost ready for a discussion about whether you still have an accident injury case if you were also at fault. But first, a disclaimer: Keep in mind that this article is a general discussion only, and that you should seek the advice of your Texas accident injury attorney about your individual case.
The question we are exploring in this article could arise out of pretty much any kind of accident or injury case, but for ease of discussion we will focus on a vehicle accident. Let’s make it a discussion in the context of an 18 wheeler truck accident and a motorcycle accident. For the sake of the motorcycle rider, we can only hope that he was wearing his safety helmet, because when an 18 wheeler tangles with another vehicle, the other vehicle usually loses.
In our fact scenario, let’s suppose that the motorcyclist was speeding, which they are known to do at times, and even weaving in and out of traffic. Now let’s also suppose that our 18 wheeler is fully loaded with cargo, which has made the truck a bit cumbersome on the road, especially when it is going up a rise on the highway, which is where it is when our motorcyclist starts to pass it.
The 18 wheeler driver couldn’t see the motorcyclist when it was directly behind the truck, he testified at trial. All he knew was that when he moved into the left lane of traffic to pass a slow moving truck, he suddenly felt a slight impact and saw a motorcycle spinning out of control in his driver’s side rear view mirror. There was nothing I could have done to avoid this accident he told the jury.
The motorcycle driver suffered serious injuries and his motorcycle was destroyed, but he was able to testify at trail. His story was that he was forced to move into the left lane of traffic right beside the 18 wheeler because a car had run up behind him at a high rate of speed and he was afraid he would be hit from behind. I was passing the 18 wheeler when the large truck suddenly changed lanes right into my forward path, he said.
There was nothing I could do, the motorcyclist testified. The car was about to hit me from behind, so I changed lanes and that 18 wheel truck took me down like I was a mosquito being swatted. Therefore, he told the jury, the trucking company and the car owner should have to pay for my motorcycle, my medical expenses, my lost income, and my pain and suffering, he said.
Other witnesses testified that the motorcyclist was also speeding and weaving in and out of traffic before the accident occurred. The driver of the car testified that he could have slowed down before hitting the motorcycle and that the motorcyclist didn’t really have to change lanes suddenly as he did. It looked like he just wanted to beat me around the truck, he told the jury. I shouldn’t be held responsible for his damage claim.
Who is at fault here?
Was the truck driver negligent in failing to make sure it was safe to change lanes before moving into the path of the motorcycle? Was the driver of the car negligent in running up behind the motorcycle at a high rate of speed? Was the motorcyclist contributorily negligent because he was speeding and weaving in and out of traffic, suddenly appearing in the lane beside the 18 wheeler? In other words, were all three of these drivers at fault in this accident?
You might be asked questions like this if you were a member of the jury in this case. You could also expect to be asked questions about what percentage of fault should be attributed to each of the drivers in this case.
This is because Texas has a proportionate responsibility statute.
If the jury were to find that the motorcyclist was more than 50% responsible for this accident, he would be barred from recovering anything from the 18 wheeler’s insurance company or from the car owner’s insurance company.
But if the motorcyclist is found to be less than 50% responsible, the statute addresses how liability will be apportioned.
The proportionate responsibility statute applies to any cause of action that is based on a tort in which a defendant, a settling party, or a responsible third party is found to be responsible for a percentage of the harm for which relief is sought.
Under the statute, the jury (or the judge if the case goes to trial without a jury) must determine the percentage of responsibility with respect to each claimant, each defendant, each settling person, and each responsible third party (designated under another part of the statute, which is not within the scope of this article) and the extent to which they caused or contributed to cause in any way the harm for which the recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these.
Once the jury makes this determination, a defendant who is found liable is liable to the plaintiff only for the percentage of the damages found by the trier of fact equal to that defendant’s percentage of responsibility with respect to the personal injury, property damage, death, or other harm for which the damages are allowed. The language in this paragraph and the previous paragraph is a bit convoluted but it comes from the statute.
The statute has another provision, however, that overrides the previous paragraph where the percentage of responsibility attributed to a defendant is greater than 50% (or in other situations involving the penal code that are not relevant here). In such cases, that defendant has joint and several liability for damages recoverable by the plaintiff. If the plaintiff recovers all of his damages against the defendant who is jointly and severally responsible, then that defendant has the right to seek contribution from the other liable defendants up to their respective percentages of responsibility.
Texas Accident & Injury Law Can Be Very Complicated
Well, if you think this has gotten to sound really complicated, it is, sometimes even for lawyers and judges. This is why we believe that if you have a personal injury claim, you should be represented by an experienced Texas accident injury lawyer who knows you, knows the law, and knows all the facts of your particular case.
READ PART 1 of our Recovering Damages in Personal Injury Cases Series: How do I Prove Medical Expenses in my Accident Injury Case?
Kennedy Hodges & Solomon
Trial Lawyers
© 2010 Lee Solomon
