The Comparative Fault Defense In A Bicycle Accident Claim

Contributory negligence, a/k/a comparative fault, may be the most common defense in vehicle collision claims. This doctrine basically shifts blame for an accident from the tortfeasor (negligent driver) to the victim. In Texas, tortfeasors are not legally responsible for damages unless they’re at least 51 percent responsible for an accident.

The bicycle helmet defense is a related defense. In Texas, if a bicycle accident wasn’t wearing a helmet, the insurance company can argue that the failure to wear a helmet, as opposed to the tortfearo’s negligence, caused the victim’s injury. The same apportionment of responsibility usually applies.

Insurance company lawyers are willing to do whatever it takes to reduce or deny compensation in personal injury cases. Therefore, victims need an equally assertive Missouri City bicycle accident lawyer to stand up for them in court. There is a lot at stake. Compensation in a bicycle crash claim usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Convincing the Judge

Using the contributory negligence defense is a two-step process. First, insurance company lawyers must convince a judge that the victim’s negligence was a substantial contributing factor to the wreck.

Normally, a victim’s excessive speed is the most common contributory negligence factor. But excessive speed isn’t an issue for most bicycle riders. Ignoring a traffic control device is much more common.

In order to somewhat keep pace with vehicle traffic, bicyclists need all the forward momentum they can muster. Therefore, they often don’t completely stop at red lights or stop signs. Instead, they make California stops. They slow down, look both ways, and keep going if the intersection is clear.

Failure to stop is illegal. But a simple failure to stop may be insufficient to convince a judge that the victim may have been partially at fault for the wreck.

Instead, the insurance company must present additional evidence, like an eyewitness who testifies that the rider didn’t slow down and look both ways, or the design of a road, like a hill or curve, demanded additional caution.

At this point, the insurance company doesn’t have to “prove” contributory negligence. Instead, the insurance company must only convince the judge that the jury might consider such evidence. A Missouri City personal injury lawyer usually calls this burden of proof a scintilla (trace) of evidence.

Convincing the Jury

At this point, contributory negligence is an affirmative defense. Usually, the victim/plaintiff has the burden of proof in a personal injury case. But if an insurance company tries to use comparative fault, the insurance company has the burden of proof.

This burden is much higher than it was before the judge. At trial, the insurance company must prove comparative fault by a preponderance of the evidence (more likely than not).

To counter this defense, an attorney can erode the defendant’s evidence, introduce favorable evidence, or both (usually both).

Eyewitnesses aren’t always credible witnesses. Tortfeasors are almost never credible witnesses. Everyone remembers events selectively.

An attorney can also introduce evidence about the victim’s cautious riding, bicycle maintenance,  or other good bicycle riding habits. However, an attorney must walk a fine line, because such evidence could be considered illegally bolstering the witness.

Count on a Hard-Working Fort Bend County Attorney

Injury victims are entitled to significant compensation. For a free consultation with an experienced personal injury attorney in Missouri City, contact the Henrietta Ezeoke Law Firm. We do not charge upfront legal fees in these matters.

Source:

statutes.capitol.texas.gov/Docs/CP/htm/CP.33.htm