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Does the Comparative Fault Defense Apply in Wrongful Death Cases?


Unfortunately, yes. And, in many cases, the comparative fault defense reduces a victim’s compensation, sometimes to nothing. Texas is a modified comparative fault state with a 51 percent threshold. So if a jury determines the victim was at least 51 percent responsible for a wrongful death, the tortfeasor (negligent actor) is not liable for damages. If the victim is less than 51 percent at fault, the court reduces compensation in the case per the percentage of fault (e.g. 20 percent at fault means a 20 percent reduction).

As outlined below, a Sugar Land personal injury lawyer has basically two chances to blunt the comparative fault defense. So, to obtain maximum compensation, a lawyer must do more than build a basic negligence case. A lawyer must also anticipate defenses, like comparative fault, and have a plan that refutes them. The stakes are high. For both emotional and financial reasons, wrongful death survivors need every dime of compensation they can get.

Comparative Fault Basics

Elderly adult falls, which are the leading cause of death for people in this age group (over 85), illustrate the two parts of the comparative fault defense.

Visible and avoidable hazards, like an icy patch on a sidewalk or large sidewalk crack, cause many elderly adult falls. At least, these hazards are visible and avoidable to younger people.

Many older people have diminished vision. They don’t see well, especially at night. So, visible objects, people, or hazards become invisible objects, people, or hazards. Furthermore, many older adults have gait disorders. Since they shuffle their feet when they walk, when they stumble, they cannot regain their balance, and they fall.

A Missouri City personal injury lawyer uses such arguments at a pretrial hearing to block the comparative fault defense. This defense is inadmissible at trial if a judge determines that the victim’s fault didn’t substantially contribute to the victim’s injury.

That’s only the first hurdle. An attorney uses basically the same arguments at trial to convince jurors that the landowner was mostly at fault, or better yet entirely at fault, for the injury. Evidence that the landowner knew about the hazard and didn’t properly address it makes the victim appear more victim-ish and the landowner appear more reckless.

Assumption of the Risk

Sometimes, the owner uses a sign, like “Caution Uneven Surface,” to warn victims about a fall hazard. A sign isn’t a get-out-of-jail-free card. Instead, it just makes the assumption of the risk defense, which is a comparative fault spinoff, easier to prove.

The same two-part process applies. First, an insurance company lawyer must convince a judge that the victim saw the sign, could read the sign, and could understand what the sign meant. As mentioned, many older adults cannot see signs very well. Additionally, many older adults with limited English proficiency can’t read or understand two-syllable words very well.

Even if the judge allows the defense, an insurance company lawyer must start over with a jury. The second part is usually the hard part. Convincing twelve people that something’s true is much harder than convincing one person.

If jurors determine that the victim assumed the risk, they must usually divide responsibility on a percentage basis, as outlined above.

 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. Virtual, home, and hospital visits are available.

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