Comparative Negligence, Contributory Negligence and Determining Fault

Who is responsible in your personal injury case, and how your state’s view of fault will impact your potential damages.

There are always different percentages of fault assigned in personal injury cases. States each follow a different system of fault, so while a plaintiff could recover 99% of damages in one state, he could be barred in another. Here we discuss contributory negligence, comparative negligence and how to determine fault in a personal injury case.

Trying to figure out who’s responsible in a car accident case is like trying to extract a single feline from a bag of angry wet cats – it takes finesse.

Fault Systems by State

Fault Systems by State

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Determining fault and liability is often difficult because multiple parties may share in responsibility, and each party will try to put the blame on the others. This is only natural, because everyone is looking to protect themselves.

How fault is apportioned to each driver will depend heavily upon where the accident took place. Each state follows a different system of fault, so one state might allow up to 99% recovery while another won’t allow even 1% recovery.

Let’s take a look at these systems in more depth:

Degrees of fault in determining damages

There are four different systems used for determining damages in the United States:

  • Pure contributory negligence
  • Pure comparative negligence
  • Modified comparative negligence – 50% bar rule
  • Modified comparative negligence – 51% bar rule

Contributory negligence

This law originated over the pond in England and was a common law defense that stated if two people were in an accident, the injured person could recover only if he was absolutely clean in terms of fault – he hadn’t caused any of the accident and he was only the injured party.

The idea was that an individual should not create potentially dangerous circumstances and then try to profit from them. This was called the “1% rule” because the injured party could not be at fault under any circumstances. Only five states still adhere to this particularly harsh rule.

To give an example, Paul gets into a car accident with Steve, and Paul is determined to be 10% at fault because he was over the speed limit when he collided with Steve in an intersection. In a contributory negligence state, he will not able to recover any damages.

Pure contributory negligence states:

  • Alabama
  • District of Columbia
  • Maryland
  • North Carolina
  • Virginia

Comparative negligence

An injured person can still recover under this system even if he was partially responsible for the accident. His apportionment of damages will be reduced according to how responsible he was. States using a comparative negligence system assign a percentage of fault to each party, and this is where it breaks into three schools of thought because states like to make things complicated:

  • Pure comparative negligence
  • Modified comparative negligence – 50% rule
  • Modified comparative negligence – 51% rule

Thirteen states currently follow the pure comparative negligence system, in which a percentage of fault is assigned to each party and then damages are split accordingly. That way an injured person can recover damages even if he was 99% at fault in causing the incident.

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Pure comparative negligence states:

  • Alaska
  • Arizona
  • California
  • Florida
  • Kentucky
  • Louisiana
  • Mississippi
  • Missouri
  • New Mexico
  • New York
  • Rhode Island
  • Washington

The 50% rule, which 12 states currently follow, states that an injured person can only recover if his fault in causing the accident is 50% or less. The remaining 21 states follow the 51% rule, which means that fault can’t reach 51%. Damages are then split according to the assigned percentage of fault.

Modified comparative fault states (50% Rule):

  • Arkansas
  • Colorado
  • Georgia
  • Idaho
  • Kansas
  • Maine
  • Nebraska
  • North Dakota
  • Tennessee
  • Utah
  • West Virginia

Modified comparative fault states (51% Rule):

  • Connecticut
  • Delaware
  • Hawaii
  • Illinois
  • Indiana
  • Iowa
  • Massachusetts
  • Michigan
  • Minnesota
  • Montana
  • Nevada
  • New Hampshire
  • New Jersey
  • Ohio
  • Oklahoma
  • Oregon
  • Pennsylvania
  • South Carolina
  • Texas
  • Vermont
  • Wisconsin
  • Wyoming

For example, if Paula suffers $100,000 in property damage, medical expenseslost income, and pain and suffering, she may be able to recover $70,000 if it is determined that she was 30% at fault for the accident.

This apportionment of fault is based on negotiations between the personal injury attorney and insurance adjuster if the case is settled out of court or by the jury if the case goes to trial

Enjuris tip: Settling your case out of court is the quicker, easier and cheaper option. Learn more about why most prefer settling their personal injury cases outside of the courtroom.

Fault among multiple defendants

In some cases, the victim was clearly not responsible for the accident and was just in the wrong place at the wrong time.

However, there may be multiple parties who are named as defendants because they all share a degree of fault. When this situation arises, rules regarding joint and several liability may apply:

Joint and several liability

Joint and several liability is a rule that allows the personal injury victim to sue for and recover the full amount of damages from any one defendant. This means the plaintiff can sue one defendant even if multiple defendants are to blame.

The plaintiff will typically target the defendant who has more available resources – the one from whom he believes he can recover. This person doesn’t have to be the one who’s the “guiltiest” of the parties – just the one with the most money, if we may be blunt here.

Once the defendant is ordered to pay up, he or she can turn to the other defendants and sue them for their percentages of the damages so that everything is allocated accordingly.

Proving fault

Because of the possibility of having a claim barred by the court, having damages reduced or being able to pursue a preferred defendant, the issue of proving fault is an important one in a personal injury case.

Most personal injury cases are based on the legal theory of negligence, which holds parties responsible when their conduct falls below a certain standard of care and the result causes the victim to suffer injuries.

There are many pieces of evidence that can help establish fault, including:

  • Video recordings or pictures of the accident and vehicle damages
  • Admissions by the defendant
  • Pictures of the damage
  • Testimony by an accident reconstruction expert
  • Police reports
  • Witness testimony
  • Reports from the auto body shop
  • Proof of violations of the law

These are just a few examples of the type of evidence that may be necessary to establish fault.

Enjuris tip: It can be hard to know where to start your search for the perfect attorney to represent you. Here are some tips for finding a qualified attorney to help you through the legal process.

To assist with gathering this information and establishing the elements of the case, car accident victims should consider retaining the services of a personal injury lawyer who can explain the victim’s rights, the damages that may be recovered and how shared fault may affect the case. Take a look at the Enjuris law firm directory!

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