After a serious injury, such as a traumatic brain injury, you may suddenly find fault being questioned and your recovery at risk. The insurance company might claim that you were the one at fault and, therefore, they don't have to pay you what you are asking for—or anything at all. And, under Nevada's comparative negligence rule, this could actually be the case.
Comparative negligence, which is based on shared fault, influences how much financial compensation you can recover. Because Nevada follows a modified comparative negligence rule, it can even determine whether you are eligible for any compensation at all. If you are dealing with serious injuries, or helping a loved one navigate the aftermath of a TBI, it's important that you understand how Nevada's comparative negligence rule works, including how it may affect your financial recovery.
How Nevada's Comparative Negligence Rule Works
Nevada follows what’s known as a modified comparative negligence rule. This law recognizes that accidents are not always entirely one person’s fault. Sometimes, multiple people—including the injured person—play a role in what happened. However, even if you are found to be partly to blame, that does not mean that you are necessarily barred from recovery.
Under Nevada law, an injured person can still recover compensation as long as they are less than 51% at fault for the accident. This is often referred to as the “51% bar.” In contrast, if a plaintiff is found to be 51% or more responsible, they are not permitted to recover any damages.
When someone is partially at fault but still eligible to recover, their compensation is reduced in proportion to their share of responsibility. For example:
- Suppose a jury awards $1,000,000.00 in damages to a brain injury victim.
- If the victim is found 20% at fault for the accident, their award is reduced by 20%.
- In this case, the victim would recover $800,000.00 instead of the full $1,000,000.00.
This system is designed to balance fairness, but for TBI victims, even a small reduction in damages can have life-changing consequences. Brain injuries often require years of treatment, therapy, and ongoing support, all of which can be extremely costly. This means it's especially critical that victims receive the full amount of compensation to which they are entitled.
How Comparative Negligence Impacts Brain Injury Cases in Nevada
Brain injuries are often the result of complicated accidents, like car crashes, slip and falls, or workplace incidents. Because multiple factors can contribute to these accidents, insurance companies and opposing parties frequently argue that the victim shares some responsibility. This is where Nevada’s comparative negligence rule becomes particularly significant.
For victims of traumatic brain injuries, even a small percentage of fault can dramatically affect the compensation they receive. Unlike minor injuries, TBIs can involve lifelong medical care, ongoing rehabilitation, and substantial loss of income. Even something as seemingly small as a 10% or 20% reduction in damages can mean tens or even hundreds of thousands of dollars in lost support.
Here are some common situations we see where insurance companies try to argue a plaintiff was at fault:
- Vehicle Accidents: Insurance companies may claim the injured driver was speeding, distracted, or failed to wear a seatbelt, which either led to the crash or contributed to the severity of their injuries.
- Falls: Property owners may argue that a victim ignored warning signs, failed to follow posted safety rules, or trespassed onto the property or in an area where they were not supposed to be.
- Workplace Accidents: Employers or insurers might claim the injured worker ignored safety protocols, failed to use protective equipment, or used protective gear incorrectly, leading to the incident.
- Alcohol or Drug Use: In some cases, insurance companies may try to argue that the victim was intoxicated or impaired by alcohol or drugs and, as a result, negligently contributed to their own injury.
Because brain injuries often impair memory, concentration, and cognitive function, victims may struggle to recall exact details of the accident. This can make it easier for defendants to assign blame, even when the primary responsibility lies elsewhere.
Challenges TBI Victims Often Face with Comparative Negligence
Traumatic brain injury cases present unique challenges when it comes to comparative negligence. Because TBIs can affect memory, judgment, and communication, victims often face additional hurdles in proving their case.
Some of the most common challenges include:
Cognitive Impairments:
Many TBI victims struggle to remember exactly how an accident occurred or to describe the sequence of events clearly. This can make it easier for opposing parties to argue that the victim was partially at fault, even when the property owner, driver, or employer was primarily responsible.
Disputes Over Causation
Insurance companies and defense lawyers may claim that the brain injury was pre-existing or that other factors contributed to the injury. Establishing a direct link between the accident and the TBI is critical and often requires medical records, expert testimony, and accident reconstruction.
Bias from Insurers
Insurance companies frequently attempt to shift some blame onto the victim to reduce their payout. They may scrutinize minor actions, such as failing to wear a seatbelt, using a cellphone, or not following certain safety instructions, to argue comparative negligence.
High Medical Costs
Brain injuries often require years of treatment, including therapy, medications, and specialized care. Even a small percentage reduction in damages can have a serious financial impact, potentially affecting long-term quality of life.
Because of these challenges, TBI victims in Las Vegas or elsewhere in Nevada need an attorney who understands both the medical and legal complexities of these cases. Strong evidence, expert testimony, and strategic advocacy can make the difference between securing enough to cover lifetime care and receiving insufficient compensation.
Proving Liability in a Nevada Brain Injury Case
Successfully recovering damages in a brain injury case requires clearly establishing that another party’s negligence caused the injury. In Nevada, this means demonstrating duty, breach, causation, and damages—while also addressing any comparative negligence claims.
Evidence of Negligence
If the insurance company tries to argue that you were negligent and, as a result, are responsible for your brain injury, an attorney can help you push back. In any personal injury case, proving negligence is key. This becomes especially important when liability is disputed.
Examples of evidence may include:
- Medical records documenting the brain injury and its severity
- Accident reports, photos, or videos showing how the incident occurred
- Witness statements describing the conditions or actions leading to the injury
- Surveillance footage of the incident or the conditions leading up to it
- An official police report, made either at the scene or soon after
Expert Testimony
Medical experts can explain the extent of the brain injury, expected treatment, and long-term impact. Accident reconstruction specialists can clarify exactly how the accident happened, which can be critical if the defense argues comparative negligence. In this way, expert testimony often plays a critical role in not only establishing negligence but also in proving liability and damages.
Establishing Foreseeability
Establishing foreseeability involves demonstrating that the accident was avoidable and that the responsible party should have taken reasonable precautions to prevent it, but did not. For example, property owners must address unsafe conditions, drivers must follow traffic laws, and employers must enforce safety protocols. When they don't, and someone is injured, they can be held responsible.
Early Legal Intervention
Working with an attorney from the beginning—or as soon as possible—helps preserve evidence and prevent the loss of critical documentation. Early involvement also allows your attorney to challenge insurance tactics that aim to assign partial blame to the victim. Proving liability in TBI cases is often complex because brain injuries are invisible and can involve multiple contributing factors. Working with a knowledgeable attorney who understands both the medical and legal intricacies of these cases is essential for protecting your right to full compensation.
How Insurance Companies Try to Shift Blame Onto Victims
Insurance companies frequently look for ways to limit payouts in brain injury cases, and one of their most common strategies is to suggest that the victim bears some responsibility. In TBI claims, this can become a central focus, as insurers often scrutinize every action or decision the injured person made before or during the accident.
Some common tactics insurance companies use include:
Highlighting Minor Mistakes
Insurers may focus on small actions, such as not wearing a seatbelt, using a cellphone, or taking a misstep on a staircase. Even if these actions did not directly cause the brain injury, the insurance company may argue that they contributed to the accident and therefore reduce the payout.
Questioning Memory and Credibility
TBIs can affect memory and cognitive function, which insurers may use to their advantage. They may claim inconsistencies in testimony indicate partial fault, even when the primary negligence lies elsewhere.
Pointing to Pre-Existing Conditions
Insurance adjusters may attempt to argue that the brain injury was pre-existing or unrelated to the accident. They often scrutinize past medical records to shift some blame onto the victim, potentially lowering compensation for care and rehabilitation.
Minimizing Liability of the Responsible Party
Insurers may emphasize any contributing factor by the victim while downplaying the other party’s negligence. For example, a property owner might claim a victim “assumed the risk” by walking in a dimly lit area, even if the lighting should have been fixed.
Encouraging Quick Settlements
Adjusters often pressure victims into accepting early settlement offers, knowing that many TBI victims or their families are eager for immediate funds. These offers are typically far below what is needed for long-term care and may incorporate partial-blame arguments.
Because these tactics can drastically reduce compensation, it is critical for TBI victims in Nevada to have an experienced attorney who can counter these strategies, gather robust evidence, and fight for the full damages they deserve.
Combatting Comparative Negligence: Why Legal Representation Matters
Brain injury cases are uniquely complex, and the presence of comparative negligence adds another layer of difficulty. Insurance companies often employ aggressive strategies to assign partial blame to the victim and without the right legal guidance, even a strong claim can result in reduced compensation.
Working with an experienced attorney can make all the difference. At Cohan PLLC, our team provides personalized advocacy specifically designed for TBI victims. Founding attorney, Chasen Cohan, has represented both plaintiffs and defendants in complex litigation, giving him valuable insight into how insurance companies and opposing counsel approach these claims. Our firm has a history of achieving favorable outcomes for brain injury victims, including cases where insurers tried to shift fault onto the injured party.
Many attorneys prefer quick settlements, but Chasen Cohan is a real trial lawyer who will take a case before a jury when necessary to fight for full compensation. We treat every client as an individual, providing dedicated attention and communication throughout the legal process.