When the Defense Blames the Victim

Imagine you are a pedestrian crossing a busy intersection against the light because you are in a hurry and have somewhere to be.  Despite the fact that you looked both ways before crossing, a car comes speeding out of nowhere and hits you, causing you serious injuries.  Your attorney contacts the other driver’s insurer and is told they consider the accident to be completely your fault and they refuse to offer any money in an attempt to settle your claim.  This is probably the last thing that you were expecting, given that you were the party who suffered serious injuries when, walking and completely unprotected, you were hit by a motor vehicle.  However, the other party to an incident like this is permitted to point the finger at you and argue that it was your negligence, not that of the driver that hit you, which caused the accident and your resulting injuries, under Florida comparative negligence.

It is surprising for many people who have never been involved in a personal injury lawsuit when they first find out there is room for multiple parties to be blamed for the same incident and the same injuries.  For instance, in the scenario above, a jury may conclude you, as the pedestrian who ignored the light, are partially to blame for the situation because you crossed against the light.  The jury may also simultaneously conclude that the motorist, who was in a better position to avoid the accident because he was the one in control of a speeding vehicle also failed to exercise reasonable care.  In this scenario, Florida’s system of comparative negligence still allows you to recover for your injuries but only to the extent caused by that driver’s negligence.

Florida Comparative Negligence

Florida, like most states, follows a comparative negligence system.  What this means is that a jury first decides whether each party that is involved in a situation like the scenario above was negligent.  If the jury determines that each party (or even some but not all the parties) were negligent, it then assesses the responsibility of each party and then decides what proportion of total responsibility for the situation that party bears.  If the victim of an incident is determined to have had a role in causing the incident that resulted in his or her injuries, then his or her total damages are reduced by whatever proportion of fault he or she is determined by the jury to play in the incident.  Therefore, if the jury determines you suffered $1,000,000 in damages as a result of the accident described above but you were 40% responsible for causing the accident, then you will only be entitled to recover $600,000 from the person that injured you.

Is Attacking the Victim Really a Winning Strategy for the Defense?

Given the system of Florida comparative negligence, defense lawyers and insurers often will play the game of attempting to blame the victim for whatever injuries he or she suffered. They do this in the hopes of reducing the proportion of responsibility their own driver or insured is determined to play in causing your injuries.  However, what this ignores is that even if the defense proves you, the accident victim, were negligent, it also must show that the defendant was not negligent in order to prevail.  This is a much more difficult task than many insurers and defense attorneys seem to realize.  After all, if a jury is faced with a decision to blame someone who has suffered serious physical injuries that may last for the rest of his or her life or the person that was in control of a speeding motor vehicle that hit that pedestrian, the jury may well choose to give the benefit of the doubt to the pedestrian.

Defense attorneys also seem to rarely realize that blaming the victim does little to reduce the proportion of fault that a jury may assess their own client.  Indeed, if anything, blaming the victim is likely to result in a higher proportion of fault being assigned to the party pointing the finger.  It also does nothing to clear that party from the allegations of negligence on his or her behalf.  Therefore, it is a strategy that can often backfire on the defense attorney.

Contact the Experienced Attorneys of Schwed, Adams & McGinley

At Schwed, Adams & McGinley, we are experienced Florida personal injury attorneys with more than 150 years of combined legal experience. With this extensive experience, we are not afraid to take on difficult cases that other attorneys may not because there may be some fault on the part of the injured victim for the incident that caused his or her injuries.  Ultimately, we believe all our clients deserve justice, even if they may have had a role in the incident that led to their own injuries.  We can articulate for a jury why it needs to focus on the negligence of the party that injured our client rather than punishing our client.  If you or a loved one have been injured in any type of scenario in Florida, contact Schwed, Adams & McGinley at (877) 694-6079 or contact@schwedlawfirm.com for a free consultation today.