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Negligence in Texas (and most other states and countries) is defined as follows for a jury:
“Negligence” means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.
“Ordinary care” means the degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.
This legalese can be very confusing for a jury and courts have struggled to come up with an easy-to-understand phrasing and the lack of clarity is often taken advantage of defense lawyers who will claim that their client was not negligent when they ran into the back of your car.
One important thing to understand right now is that the jury never finds out that the person who hit you has insurance. Like terrorists hide behind civilians, so too do insurance companies hide behind their customer. So if you have to go to trial, the jury doesn’t know that a multi-billion dollar company is paying any award.
So here’s why someone may hit your car and hurt you and yet still be found to not be at fault:
(and get away with it even though you did nothing wrong)
- The person who hit you had a sudden emergency. For example, they were avoiding a head-on collision with another vehicle, or perhaps a child darted out in front of them.
- The person who hit you had a heart attack or other illness. If someone has a heart attack and can’t drive, then they are still using ordinary care until the attack occurs. However, if they have a history of heart problems that may be different.
- The sneeze defense. “I was stopped in stop-and-go traffic, took my foot off the brake as traffic moved forward, sneezed, and accidentally hit the accelerator.” As crazy as this sounds, I’ve heard defense lawyers use it and bragged that they have won cases with it. Remember, the plaintiff has the burden of proving that the driver was not using the same care that another driver under similar circumstances would use.
- The defendant called the police. Ok, this is not a real defense, but I once lost a case and then asked the jurors why they didn’t vote for my client who was rear-ended by the defendant. The answer shocked me. They thought that someone who called the police after an accident was showing ordinary prudence. Moral of the story: make it clear that ordinary care applies at the point of the collision and not to what was done or not done afterward.
If you can prove the other part was negligent, and there’s no argument you were also at fault, you’re halfway there in proving your case. Now comes the hard part – proving your damages.