Part 2: Getting started

Your first step is to figure out who is at fault.

Although lawyers and insurance companies would like people to think that legal responsibility, or liability, for an accident is a complicated question, the answer usually requires nothing more than common sense. Liability revolves around the simple fact that most accidents happen because someone was careless—or, in legal terms, “negligent.” And as to this carelessness, the law applies a basic rule: If one person in an accident was less careful than another, the less-careful one must generally pay for at least a portion of the damages suffered by the more careful one.

How do you prove legal liability?

A small percentage of injury accident claims are fought out in court instead of being settled beforehand. In court, an injured person must prove four basic things:

  • the person who caused the accident had a legal responsibility—called a “duty of care”—to avoid harming the person who was injured,

  • the person who caused the accident failed to live up to that legal responsibility—committing what’s called a “breach of duty,”

  • the accident resulted from the breach of duty—called “causation,” and,

  • injuries and their consequences—known as “damages”—resulted from the accident.

When you negotiate your claim for insurance compensation, you probably won’t be using these legal concepts to discuss your accident. The cause of your accident may well be obvious, and the only question may be how much compensation is appropriate. Even if one of these issues does arise in your case, chances are you won’t hear an insurance adjuster use all these legal terms. Nor will you need to use these terms yourself. Instead, you and the insurance adjuster will almost certainly negotiate using general language about whose fault the accident was and how much your claim is worth.

However, even if you do not use or hear any of these terms, understanding the basic legal issues may give you extra confidence as you process your claim. And if one of these issues becomes a sticking point in your claim, having a complete picture of how legal liability works may help you make a clearer argument to the insurance company. After you read the section later in this chapter that applies to your specific type of accident, you may want to refer back to this section if you think one of the four points mentioned above may be difficult to prove.

  • Does the Defendant own you a legal duty of care?

A duty of care is an obligation to avoid injuring someone else or placing them in the path of danger. In most cases, every person has at least some duty of care toward others. The only questions are, to whom is a duty of care owed, and if there is a duty, how broad is it?

A common example of a duty of care involves driving a car. Everyone has a duty of care to drive in a way that is unlikely to injure pedestrians and people in other vehicles. The extent of that duty is defined by the rules of the road (usually spelled out in the Texas Transportation Code) and by common sense, which is often described as how a “reasonable” person would act. 

In some situations, determining the duty of care is difficult because, unlike the example above, there are no laws (like the Transportation Code) that spell out how a person should act. For example, a grocery store has some duty of care toward its customers’ safety, but there are few specific legal guidelines on just exactly what the grocery store owner must do to satisfy that duty. The law simply requires the store to take “reasonable” steps to ensure customer safety—such as regularly checking the floors for spills or trip hazards and not putting heavy objects precariously on high shelves. But how frequently must the store check for spills and hazards, and how high is too high? Unfortunately, there’s no precise answer. If a customer has an accident involving store safety, the argument revolves around whether steps taken by the store qualified as “reasonable.”

In many situations, there is no duty of care owed at all, even though there may indeed be a real injury. For example, in most states a landowner owes no duty to act reasonably toward a trespasser. If a burglar is injured on a slickly waxed floor, he’ll have no case. However, a tenant or tenant’s guest walking across that same lobby floor is owed a duty of care and may be able to collect if the landlord didn’t take steps to warn of the danger.

  • Did the Defendant breach the duty of care?

It’s one thing to recognize that there is a duty of care involved in an injury situation. The next question is whether the person who owed the duty lived up to it. If not, the law calls that person’s actions “negligent,” or careless. Put another way, the person breached the duty of care by creating or allowing a dangerous situation above and beyond the normal level of risk we encounter while going about our daily lives. Whether the duty of care was met is the issue on which most accident cases turn.

In some cases, determining whether the duty of care has been breached isn’t too difficult. For example, when a speed limit is posted, the duty of care involves observing that limit. Whether a driver was really going over that limit might be easy to show, with witness statements attesting to the car’s rate of speed. If the jury believes these witnesses, they’ll conclude that the driver breached that duty. Similarly, a car must stop at a red light (duty of care), but was the light red when the car entered the intersection? Again, the witnesses may be able to clearly say yes or no.

In other situations, deciding whether the duty of care was breached is more difficult, because complying with the duty isn’t an “all or nothing” proposition. Think again about the example above of the speed limit. While it may be simple to show whether a driver was going over the posted speed, this isn’t the end of the inquiry. As you no doubt know, drivers must always obey a “universal speed law,” which directs them to drive safely under the circumstances, even if this means going slower than the posted speed. A driver’s ability to show compliance with the speed limit doesn’t necessarily prove the driver was obeying the universal speed law. That issue involves determining what would have been a safe speed under the circumstances. Similarly, a city must keep its roadways reasonably safe for all vehicles. But did a saucer-size hole in the pavement, which had been there for months, constitute a breach of the duty of care in that it created an unreasonable risk for bicyclists?

There often is no simple answer about whether a duty has been breached. Many of the examples in this chapter explain how to figure out what constitutes a breach of duty in particular types of accidents.

  • Did the Defendant’s breach cause the event?

Usually, once you have shown that someone has breached a duty toward you—for example, broken a traffic law or failed to fix a loose stairway handrail—you have established that person’s legal responsibility for your injuries. But in some circumstances, the other person may claim that even if he or she was negligent (breached a duty), that negligence was not the cause—or not the sole cause—of the accident. For example, you may be able to show that another driver failed to signal before making a left turn. However, the other driver may reply that you had a stop sign and should not have entered the intersection at all until the other car had cleared it, regardless of whether it was turning. In the case of the stairs, the owner of the property may claim that your fall was not caused by the loose handrail but by your own carelessness in bounding up two stairs at a time in an effort to get into the apartment and charge your phone.

Most arguments about causation are not all-or-nothing affairs. They are usually about how much each person’s negligence contributed to the accident, and therefore how much each person should be responsible for the resulting injuries. 

  • Did the event cause your damages?

In legal lingo, “damages” refers to the physical and emotional injuries, property damage, and lost income someone suffers as the result of an accident. (The term “damages” is also sometimes used as shorthand for an amount of money that would be appropriate to compensate someone for injuries and related losses.)

No matter how clear it is that someone else is legally responsible for an accident, you may collect compensation only for injuries, pain and suffering from injuries, and lost income that result from the accident. This may seem obvious, but many claims for compensation are disputed because the person liable for the accident claims (through an insurance company or lawyer) that the injuries complained of were not caused by the accident. Rather, the person responsible may contend that the injuries existed before the accident, were caused by a different event such as another accident, or have been exaggerated or imagined.

Have you found all the possible Defendants?

Liability for most accidents is determined by the rules discussed above. These basic rules are sometimes supplemented by one or more of the following propositions.

  • If a negligent person causes an accident while working for someone else, the employer may also be legally responsible for the accident. 

  • If an accident is caused on property that is dangerous because it is poorly built or maintained, the owner of the property is liable for being careless in maintaining the property, regardless of whether he or she actually created the dangerous condition. 

  • If an accident is caused by a defective product, the manufacturer and seller of the product are both liable even if the injured person doesn’t know which one was careless in creating or allowing the defect, or exactly how the defect happened.

  • If you were also careless, your  compensation may be reduced by the extent such carelessness (“comparative negligence”) also played a part in causing the accident. 

Vehicle accidents can involve the carelessness of more than one person— the drivers of two other vehicles, or a driver and a city or county that carelessly maintained a roadway. In accidents that happen at a business, both the property owner and the business tenant might be responsible. If you are injured by a defective product, both the maker and the seller are probably legally responsible.

When there is more than one other person responsible for an accident, the law provides that either one is responsible for compensating you fully for your damages. If one of them pays the entire claim, the two of them must decide between themselves as to whether the other should reimburse the one who paid, and how much. However, the law does not allow you to collect the full amount from both.

This rule about collecting from either responsible person—called “joint and several liability” or “concurrent liability”—provides you with a couple of important advantages. If one liable person is insured and the other is not, you can make your claim against the insured person for the full amount. And even if both are insured, you will have to settle your claim with only one insurance company. Initially, consider everyone you think might be responsible and notify each of them that you may be filing a claim for damages. Then, depending on what you discover about how the accident happened, or on which insurance company takes responsibility, you will pursue a claim against only one. 

It is faster and easier to settle a case than to win that case a trial.

Liability insurance can be purchased for nearly every motor vehicle, home, business, and other property. So in virtually every accident, you will need to deal only with an insurance adjuster and not with a lawyer or judge. And making a successful insurance claim usually requires nothing more complicated than providing a clear explanation to an insurance adjuster of how the insured was careless and how that carelessness caused the accident. 

If your explanation makes it appear likely that carelessness by the insured person or business caused the accident, the liability insurance company will pay you for your medical costs, for your lost income, and a certain amount for the pain and inconvenience you have suffered.

Once an insurance adjuster knows that you understand how the simple rules of liability apply to your accident, the emphasis in your claim will likely shift from whether you can receive compensation to how much that compensation will be.

Most liability claims are settled without anyone ever stepping into a courtroom. So, the process of negotiating with an insurance company does not require that you provide legally perfect “proof” that the insured was negligent and that the negligence caused the accident. To get compensation for your injuries, you need only make a reasonable argument that the insured was negligent, even if there is also a plausible argument the other way.

And in accidents caused by defective products, you don’t need to argue that the insured was negligent; negligence is automatically presumed under a rule called “strict liability.” 

Making a reasonable argument that the insured was negligent shows the insurance company that if the matter later becomes a lawsuit, there is a good possibility that a court would find its insured to be legally responsible. If that were to happen, the insurance company would be on the hook for your damages, court costs, and attorneys’ fees. That’s a lot of money, and the insurance company knows it can save by settling with you out of court.

You can make a claim even if you had some negligence, too.

You may still be able to seek compensation even if you were partially responsible for the accident that led to your injury.  This is due to the comparative negligence laws in Texas.

Texas recognizes a system of proportionate responsibility that allocates fault among the parties to a lawsuit.  Texas law provides that “a claimant may not recover damages if his percentage of responsibility is greater than 50 percent.”  This means that if you are more than 50% responsible for the accident, then you have lost your case.  The law also requires a judge to “reduce the amount of damages to be recovered by the claimant . . . by a percentage equal to the claimant’s percentage of responsibility.”  Here’s how this works.  Let’s say you had a car wreck and your total damages are $10,000 but you were 40% at fault.  Your recoverable damages get reduced by 40% and you are entitled to receive the rest—$6,000.  Just remember, if you are more than 50% at fault, you will receive nothing.

There is no formula for arriving at a precise number for a person’s comparative carelessness. During claim negotiations, you and the insurance adjuster discuss the factors that make both you and the insured person at fault. Then the question of your comparative negligence will go into the negotiating hopper along with all the other factors that determine how much a claim is worth—such as the seriousness of your injury and the amount of your medical bills. 

Check back soon for Part 3!

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Steve Samples
Helping personal injury and car / truck accident victims in Farmers Branch, Carrollton, Dallas and Fort Worth.

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