Is the other guy to blame? Here’s what to do.
You’re in a car accident and you’ve suffered whiplash and dislocated your shoulder. Your pain is severe, and you know you are going to have to miss work and go the hospital.
Now imagine that it was the other driver’s fault, but there was no police report filed, so you cannot get the compensation you deserve for your lost wages and medical costs.
This is what can happen if fault is not clearly established in a personal injury case.
In Texas, after a car accident - or any kind of accident really - it is very important to be certain that you make sure you have strong evidence if the other driver is at fault.
Here are five things you can do to increase the strength of your evidence as you prepare to file a personal injury claim or lawsuit:
Get a police report
The police may not always come to the scene of every accident. They normally do however if there are any injuries. When they arrive, they will almost always file a police report about what they think happened.
A police report is the written recollection of the police officer at the accident scene.
Police reports usually contain critical evidence regarding liability. He might note, for example, that the other driver was apparently speeding, or possibly ran a stop sign. He usually will note if any traffic citations were handed out, as well.
Be certain to request a copy of the police report from the officer.
If you do not get a copy of it, you can go to the closest police station and request a copy. You also can order the police report from the Texas Department of Transportation.
Note that according to Texas statutes, a police report must be made to the Texas Department of Transportation no later than the 10th day after the accident, if any party suffered bodily injury.
Make no mistake: The police report is probably the most important pieces of evidence to establish fault in the accident.
Talk to witnesses
Did anyone standing or driving nearby witness the accident? If they are still there, you should obtain their names, phone numbers and addresses.
Witness statements also are important to establish fault in a car accident.
Take pictures immediately of any vehicle damage. Photos will help the insurance company to determine how much to compensate you. Photos right after the accident can be very helpful with a jury as well.
Taking photos of your injuries immediately after the accident can also be very helpful. Seeing those injuries in pictures can be upsetting, but it really can help establish liability.
Keep record of medical treatments
You should keep careful records of every doctor visit and every medical professional you see. Keep an account of all of the treatments and medications you are given. Get copies of your medical reports and bills so you can prove your expenses later on.
Also, jot down the pain and suffering you are experiencing in a daily journal. Note if you cannot take walks that week because your back hurts, for example.
Be careful what you say
You probably are shaken and stressed out after a car accident. Even if you are not responsible, you probably had a rush of adrenaline course through your body. You might even be in shock. This is completely understandable.
However, you should use caution in discussing the accident with anyone at the scene, including the other driver and other witnesses. Just stick to the facts of the accident as you see them when you talk to the police as well.
Comparative negligence in Texas
We laid out above the steps you need to follow to establish fault in your car accident because it is very important in Texas.
The Lone Star State follows the legal concept of ‘comparative negligence‘ in personal injury cases. This also is known under Texas law as a modified comparative fault negligence formula called ‘proportionate responsibility.’
What proportionate responsibility means
The formula does a comparison of fault for each driver. The amount of recovery you can receive will be reduced by the percentage of your own negligence contributing to the accident.
Let’s say there is a car accident with Driver 1 and Driver 2. Driver 1 is hurt and sues Driver 2. The jury gives Driver 1 $100,000, but finds that Driver 1 was 30% responsible for the crash, and Driver 2 was 70% responsible. Driver 1 would receive only $70,000 because he was found to be 30% at fault.
Further, Texas follows what is called the ‘51% bar rule.’ This rule states that if one driver is 51% or more to blame for his injuries, he may not recover a dime.
Remember, 50% responsibility is ok, but 51% means zero compensation. Even if you were awarded $1 million in damages, you would get nothing if you are found 51% liable.
Negligent entrustment in Texas
Another important aspect of Texas vehicle accident law is ‘negligent entrustment’. This law states that the owner of a vehicle can be held liable for injuries in an accident even if she was not driving the vehicle at the time of the crash.
Can I be held liable if someone borrowed my car and got in an accident?
Texas law on this matter is clear and follows this rationale:
- The owner entrusted that vehicle to another party.
- That person turned out to be reckless or incompetent as a driver.
- The owner should have been aware that the driver was reckless or incompetent.
- The driver in question drove negligently and caused injury.
This Texas statute means that if you can prove that the owner of the vehicle ‘should have known’ that the driver was incompetent, the vehicle owner may be held at least partially liable for your injuries. This is an important point, because there are many cases where a person of limited means borrows a vehicle, and then gets in an accident and causes personal injuries.
Suing the actual driver of the car may result in little recovery of damages. But the owner of the vehicle may have more assets, and better insurance, so that you can recover much more.
The last thing to remember about Texas car accidents is the statute of limitations on filing a lawsuit. This is super important – read more about it here.
Have questions about a Texas accident or personal injury lawsuit?
Speaking to a personal injury attorney licensed in Texas is almost always free. Get an informed opinion on whether you may have a strong accident claim.
See our guide Choosing a personal injury attorney.