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A Texas woman suffered nine broken ribs and a broken leg bone when she was run over by her own truck. The woman put her truck in park, but when she got out of the vehicle to open the gate to her home, the truck suddenly put itself in reverse and ran her over. She filed a personal injury lawsuit against the auto dealership for medical expenses, loss wages, pain and suffering, and mental anguish.

Determining who is legally responsible for an auto accident is often a difficult process. The plaintiff must prove the defendant was negligent. If the defendant is able to prove the plaintiff was partially negligent, the defendant may avoid partial or full liability. The plaintiff in this case argued that Crenwelge Motors, where she had the truck serviced multiple times, did not advise her that the vehicle was under a recall for a “park-to-reverse defect.” The defendant disputed her claim and noted that the woman admitted to receiving two recall letters from DaimlerChrysler; they argued that she disregarded them and failed to have the free repair done. After deliberating ninety minutes, the jury determined that the woman was 60% responsible and Crenwelge Motors was 40% responsible. At the time of trial, the woman had already incurred $715,000 in medical expenses, plus loss wages. So, how much was she be awarded for the 40% responsibility on the part of the defendant? Absolutely nothing!

The error the manufacturer and the dealer made was acknowledged by issuing and publishing a recall. The error the woman made was to ignore what she might have thought was junk mail or a minor mechanical problem. Some may think that if both parties are responsible, it does not relieve the other party of their obligations. In this case, since it was determined that both parties were responsible, the plaintiff would still be entitled to some compensation from Crenwelge Motors. If pure comparative negligence had applied to the case, the plaintiff would have been awarded compensation, but it would have been reduced by the amount for which she was responsible. Her award would have been for 40% of the damages she was claiming. So why did this woman receive nothing? Texas is a modified comparative negligence State. This means that in Texas, an accident victim’s recovery is limited if the victim’s fault exceeds a certain degree. In this case, if you are a plaintiff (the woman filing the lawsuit) and are found more than 50% negligent, you cannot be awarded damages for negligence.

I can hear the tort reformers now! They are screaming that this was a “frivolous” lawsuit and should never have made it to court. They are whining that the plaintiff should have had the recall repair done; that she was negligent. They and Governor Rick Perry have been pushing for more tort reform in Texas. However, the mere fact that one loses a lawsuit does not mean it was “frivolous” when filed. There are a number of variables to factor when determining the likelihood of success or failure in litigation. As this case shows, the fact that a plaintiff suffers the misfortune of losing a case does not mean it was “frivolous” when she filed it. While I may disagree with the jury’s findings in this case, I am not the one who sat in the courtroom and listened to the evidence.

This post is not intended to criticize the jury’s verdict. My criticism is reserved for an unjust law that takes a fair doctrine like comparative negligence and bastardizes is to the detriment of seriously injured victims. This woman was found 60% at fault. What about the 40% that was not her fault? Shouldn’t she be awarded 40%? If, for example, we assume she would have received a verdict of $2,000,000, this woman would have been awarded $800,000 under a pure comparative negligence analysis (40% of $2,000,000). Why excuse one person/company’s negligence and completely penalize the other? In Texas, because of this unjust law, the jury did not even make a determination of damages; in Texas, if you are more than 50% responsible, you automatically lose and no damage determination is made. How does that law "compare" negligence between the two parties? To call the Texas standard "comparative negligence" makes a mockery of that doctrine.

Lawsuit Financial encourages everyone to look at the ‘fine print’ on tort reform. Do you know how it affects your rights if you are injured? In states that have adopted pure comparative negligence, if an injured person is partially at fault for causing her own injuries, the damages are reduced by the percentage of her fault. In this case, the plaintiff would be able to recover 40% of the award settlement. But, since Texas is a modified comparative negligent State, she recovers nothing; this is how tort reform affected her rights. In Texas, the threshold for a comparative negligence analysis is 50%, since this woman’s negligence exceeded that threshold, she receives no compensation.

Where is the safety message? Where is the consumer protection? How does modified comparative negligence protect plaintiffs from future damages? It is simply one more way government has invaded the civil justice system to the benefit of corporate America and to the substantial detriment of the injured consumer.

Lawsuit Financial is a pro-justice lawsuit funding company that provides strategic legal finance to individuals in a pending lawsuit. Lawsuit funding is a non-recourse cash advance available to pay medical expenses, rent, mortgage, car payment, and any other important bill or expense, while you wait for your case to resolve. Since we provide our legal funding service contingent upon the outcome of your case, if this Texas plaintiff would have applied for and received lawsuit funding, she would have kept the money advanced to her without obligation to pay; at least she would have received some small measure of justice.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by a plaintiff involved in pending, personal injury, litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.

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