A traumatic brain injury (TBI) can change a person’s life in an instant. Victims may face long-term physical, cognitive, and emotional struggles, leading to high medical bills and lost wages. When these injuries result from accidents in California, victims often pursue compensation through a brain injury claim.
However, an important legal principle—comparative negligence—can directly impact the amount of compensation they receive. So, how does comparative negligence affect TBI claims, and what can victims do to protect their rights? Let’s break it down.
How Comparative Negligence Works in California
California’s pure comparative negligence law allows victims to recover damages even if they are 99% at fault for an accident. However, their compensation is reduced by their degree of responsibility.
For example:
- If a jury awards $500,000 in damages to a TBI victim but finds them 20% at fault, the final payout would be $400,000 (80% of the total).
- If the victim is 60% at fault, they would still receive 40% of the awarded damages.
While this system allows victims to receive compensation even if they share some responsibility, insurance companies often exploit it to reduce payouts. Insurers and opposing attorneys may try to shift more blame onto the victim, which is why hiring a Los Angeles personal injury attorney is critical.
Common Scenarios Where Comparative Negligence Applies to TBI Cases
Insurance companies frequently argue that victims contributed to their injuries. In TBI cases, common blame-shifting tactics include:
1. Motorcycle and Bicycle Accidents
- The victim was not wearing a helmet, making the injury worse.
- They were riding outside designated lanes.
2. Car and Pedestrian Accidents
- The pedestrian was jaywalking or crossing against a signal.
- The driver was speeding, but the victim was also distracted.
3. Slip-and-Fall Accidents
- The injured person ignored warning signs.
- They were looking at their phone while walking.
Even when another party is primarily responsible, these arguments can reduce compensation significantly if not properly challenged.
Challenges TBI Victims Face in Proving Fault
Proving fault in a TBI case can be challenging due to the nature of brain injuries and how they are perceived. In addition to comparative negligence, victims may face challenges with:
- Delayed Symptoms and Diagnosis: Many TBI victims feel fine immediately after an accident but develop symptoms later, making it harder to prove the injury was caused by the accident. Insurance companies may argue that a pre-existing condition caused the TBI or that it is not as severe as claimed.
- Lack of Objective Evidence: Unlike broken bones, TBI injuries may not be visible in imaging tests. Symptoms like memory loss, mood swings, and difficulty concentrating often lack physical proof, making them easier for insurers to dismiss.
- Uncooperative or Unavailable Witnesses: While eyewitnesses can be essential in determining who is at fault, their accounts may be unreliable, and many accidents have no witnesses at all.
- Bias Against “Invisible” Injuries: Because TBI symptoms are not always visible, some victims face skepticism from insurance adjusters, employers, and even family members. Unlike a broken arm in a cast, brain injuries are often misunderstood, making it harder to prove their true impact.
Key Evidence to Strengthen a Brain Injury Claim
To counter these arguments, a personal injury attorney will gather:
- Medical Records & Expert Testimony – Doctor reports, imaging (CT scans, MRIs), and specialist evaluations to prove head injury severity.
- Eyewitness & Video Evidence – Statements and surveillance footage to establish fault.
- Accident & Police Reports – Official records detailing the incident and any citations.
- Financial & Employment Records – Proof of lost wages and reduced earning capacity.
- Pain Journals & Personal Statements – Documentation of daily struggles and testimonies from loved ones.
How to Protect Your Rights After a TBI Accident
Follow these steps to strengthen your brain injury claim and uphold your rights.
1. Seek Immediate Medical Attention
One of the most crucial steps after any accident is getting medical care as soon as possible. Many TBI symptoms do not appear right away, and delaying treatment can not only harm your health but also weaken your claim.
Even if you feel fine immediately after the accident, you should still seek a medical evaluation. Some brain injuries, including concussions and hemorrhages, may take hours or days to manifest.
2. Document the Accident Scene
Evidence from the accident scene is crucial in proving negligence and disputing fault. If possible, take photos of hazards, vehicle damage, and injuries, gather witness statements, and obtain a police report.
3. Avoid Admitting Fault or Speculating on What Happened
In the aftermath of an accident, you may feel disoriented and eager to explain what happened. However, even seemingly harmless statements can be used against you in a comparative negligence claim.
Avoid:
- Apologizing or saying, “I didn’t see them,” as this could imply fault.
- Speculating about what caused the accident—stick to facts rather than opinions.
- Speaking with insurance adjusters without legal representation, as they may try to twist your words to reduce your claim’s value.
Even social media can harm your case. Posting updates about the accident, sharing photos, or discussing your injuries online could be misinterpreted. Refrain from posting anything until your case is resolved.
4. Maintain Detailed Records
A strong brain injury claim requires comprehensive documentation of your medical treatments, expenses, and how the injury has affected your life. These records provide a clear picture of your suffering and financial losses, which is crucial when negotiating a settlement.
5. Consult a Personal Injury Attorney Before Accepting Any Offer
Insurance companies prioritize their bottom line, often offering quick, lowball settlements to TBI victims who may not yet understand the full extent of their injuries. Accepting an early offer can leave you without sufficient funds for long-term medical care, lost wages, and pain and suffering.
Our Los Angeles personal injury attorney experienced in brain injury claims can:
✔ Conduct a thorough investigation to gather strong evidence.
✔ Counter comparative negligence claims made against you.
✔ Accurately calculate the value of your claim to prevent low settlements.
✔ Handle negotiations and, if necessary, take your case to trial.
Most personal injury attorneys, including our team, offer free consultations and work on a contingency fee basis, meaning you pay nothing unless we win your case.
Let Experienced Attorneys Fight for You
A traumatic brain injury can drastically impact your quality of life, leading to financial and emotional hardships. If you suffered a severe injury in an accident, understanding comparative negligence is essential in pursuing a personal injury claim. Insurance companies often minimize claims, but experienced brain injury attorneys can fight for your rights.
At the Brain Injury Help Center, we help victims of accidents in California seek maximum compensation. Contact us today for a free consultation, and let us advocate for the justice and rightful compensation that you deserve.
