Fault vs. No Fault in a Personal Injury Case

Whether your state is considered fault or no fault can have a great impact on your case.

What the concept of fault may mean for your accident or injury case

Fault, a type of liability, is typically the primary determination of whether a personal injury victim can expect to receive compensation for the injuries that he or she suffers. In order to understand the role fault plays in personal injury cases, it is important to grasp how a typical case is structured.

Legal Responsibility

Simply because someone sustains an injury does not mean that there are grounds for a lawsuit. In order for a person to receive compensation for the injuries that he or she sustains, he or she has to pursue compensation from a party who is legally responsible for the injuries.

Legal responsibility is based on statute, caselaw or other legal constructs. It is also based on the particular circumstances of the case.


Most personal injury cases are based on the legal theory of negligence. This legal concept holds parties responsible if their careless conduct caused someone else to suffer an injury. In order to establish negligence, the plaintiff must show the following elements:


The plaintiff is responsible for showing that the defendant owed him or her a specific duty.

If there is a special relationship between the parties such as teacher/student or employer/employee, this relationship may establish the duty.

Duties may also be established by a contract between the parties. In many cases, the parties are strangers to one another, and a general duty to act with reasonable prudence and care establishes the duty everyone owes to others.

Breach of duty

The next element that must be established is that the defendant breached the duty of care that applies in the case.

For example, in car accident cases, the defendant may breach the duty of care by speeding, violating a traffic rule, or driving in an unsafe manner.

If the defendant's conduct falls below the standard of care a reasonable person would model, the defendant may be found liable.


The victim must have suffered some type of damages. This may include medical bills, property damage, loss of income, mental anguish, or pain and suffering. 

Enjuris tip: Calculating non-economic damages like pain and suffering can be difficult in a personal injury case. Read further to learn more about recovering these types of damages.


The breach of duty must have caused the victim to suffer his or her injuries.

Liable parties

In some cases, more than one party can be held responsible for the accident.

Depending on the rules used in the state, the plaintiff may be able to pursue compensation from any or all responsible parties. Liability may be apportioned to the multiple responsible parties, or the plaintiff may be able to receive compensation from one party who can then pursue the other liable parties.

Fault in a personal injury case can be attributed to multiple parties, and this can increase the odds of compensation.  Tweet this

Being able to pursue multiple defendants can help increase the likelihood of collecting on a judgment or making a claim on an insurance policy that compensates the plaintiff for his or her injuries. 

Some additional parties that may bear responsibility include:

  • An employer - The employer may be responsible for the conduct of his or her employees
  • A parent - A parent may be held liable for the tortious conduct of his or her child
  • A property owner - A property owner often has a responsibility to individuals invited onto his or her property or lawfully present on the property.

The victim's own carelessness

In personal injury cases, the person who is injured may also sometimes be partially responsible for the accident.

In most states, a person in this situation still usually has the right to recover for the damages he or she suffered, but the amount of damages may be reduced by his or her degree of fault. This concept is referred to as comparative negligence. This calculation may be determined during negotiations with the insurance adjuster or by a jury if the case goes to trial. 

Check out FindLaw’s article about the ins and outs of comparative negligence.

Other legal theories

While negligence is the most common legal theory in personal injury cases, it is not the only legal theory. Some other legal theories can establish grounds for compensation, including:

Negligence per se

In some cases, if a defendant completes certain actions, his or her negligence is assumed by law without having to prove the traditional elements of a standard negligence claim. This can occur when there is a specific statute that provides a legal basis for the claim.

One example is reckless driving that causes injury to a pedestrian.

Intentional misconduct

Assault cases, intentional infliction of emotional distress, false imprisonment, and other legal torts are based on intentional conduct and not merely carelessness.

Strict liability

In some cases, strict liability applies. In these cases, negligence does not have to be proven. As long as the plaintiff shows the relationship or basis for strict liability, the defendant may be liable. This can occur in product liability cases or dog biting cases, for example.

No fault

In cases where the proposed defendant is not at fault and not legally responsible, the victim may be able to file an insurance claim against his or her own policy.

Enjuris tip: Sometimes, insurance companies can be difficult to negotiate with or may ignore you altogether. Learn how to proceed if you feel your insurance company is acting in bad faith.

Some states have auto insurance no-fault laws in place in order to decrease the number of legal claims. In these states, each party involved in a car accident seeks payment for medical expenses against his or her own insurance policy regardless of which party was actually responsible for the accident.

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