Vehicle collisions often result in thousands of dollars in medical bills alone. Other economic losses such as property damage and lost wages can drive this figure even higher. Additionally, car accident victims are entitled to compensation for their noneconomic losses, such as pain and suffering. Legally, auto insurance companies have a duty to pay this compensation, provided the driver they were paid to insure was negligent.
So, insurance companies and their lawyers often attempt to make the following arguments to either minimize the fault of their own insured or to minimize an injured person’s damages. An experienced Kansas City personal injury attorney understands these defense tactics and knows how to overcome them or to minimize their effect. This, in turn, results in fair compensation for people who have been injured.
Comparative Fault and Contributory Negligence
Missouri utilizes a pure comparative fault system, in which the fault of both parties can be taken into account when awarding damages. Sometimes, both drivers may bear some fault. For example, an injured person might have made a rolling right turn at a stoplight when another driver came speeding through the intersection. If the person who rolled through the intersection was injured, a jury would be tasked with apportioning fault to that person. Let’s assume the person incurred $100,000 in medical bills. If the jury apportions 20% fault to that person, the amount they could recover for their medical bills would be reduced by 20%, for a total recovery for medical bills of $80,000. The same would be true if the person were deemed to be 80% at fault: the amount they could recover for their medical bills would be reduced by 80%, for a total recovery for medical bills of $20,000.
Also, it is good to remember that normally a plaintiff has the burden to prove that a defendant was negligent. However, if an insurance company is arguing that an injured person is also negligent, the insurance company must prove that the injured person was at fault as well. Thus, the insurance company and its lawyers must convince jurors that the victim’s own negligence also caused the crash and the victim’s injuries.
Kansas is stricter and employs a contributory negligence system. This system operates just like Missouri until an injured victim’s fault is deemed to be 50% or more. Once a jury finds that a person’s fault is 50% or higher, that person has no right to recover, even if the other party is deemed to be 49% at fault. This result is harsh and unfair, and it has a chilling effect on the ability of injured people to obtain compensation for their injuries in Kansas because the risk of bringing such cases is simply too high. Missouri’s system of pure comparative fault is a much fairer system.
Distracted walking, which is a variation of comparative negligence, sometimes comes up in pedestrian accidents. Sudden emergency is even more common. This legal defense excuses a driver’s negligence if the driver:
- Reasonably reacted to
- A sudden emergency.
Many insurance companies claim that pedestrians who “dart out into traffic” constitute a sudden emergency. Therefore, they argue, the driver is not responsible for damages because a crash was inevitable. In this context, a jaywalking pedestrian is not a “sudden emergency.” This defense is limited to hood fly-ups, lightning strikes, and other completely unexpected situations. A jaywalking pedestrian is more like a car that stops short or a large pothole in the road. Drivers should expect to encounter these things, and they should be ready to deal with them.
Last Clear Chance
A related doctrine, last clear chance, often comes up in head-on and rear-end crashes. This rule shifts some blame from the driver who caused the accident to the driver who had the last clear chance to avoid the accident.
Let us look at the same example and change the facts a bit. Now assume our rolling right turn victim saw the tortfeasor barreling down the street toward the intersection. If the victim had a chance to avoid the accident, perhaps by stopping suddenly, then the victim is responsible for the crash, even though the other driver was speeding excessively.
However, there is a difference between the last reasonable chance and any possible chance. For example, an emergency maneuver like stopping short might cause a more serious crash than the one it prevents.
Count on a Dedicated Attorney
If you have been injured due to another person’s negligence, contact Aaron M. House at 816-875-4260 today for a free consultation.
Tags: auto insurance, car accidents, insurance
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