What happens if someone gets into an accident, but was on the phone at the time of the accident? If someone was using a smart phone during a car accident, it can reduce the amount of damages they recover in any related lawsuits. Talking on the phone while driving is illegal in most states, so if talking on the phone led to an accident, it can be considered negligence.

What is Contributory Negligence?

Contributory negligence is a method of assessing the plaintiff’s role in the accident that led to the injury. If the plaintiff performed an act of negligence that led to the injury, they may be denied damages entirely. When a plaintiff has placed himself or herself at unreasonable risk, negligence is present, and the plaintiff has to bear responsibility for the injury. Contributory negligence is often an all-or-nothing proposition. If a plaintiff is found to have contributed to the accidence due to negligence, they are unable to collect damages, or the amount of damages they can collect is severely reduced. 

What is Comparative Negligence?

Comparative negligence is replacing contributory negligence in many states. Comparative negligence is similar, but it allows the judge and the courts to split liability between the plaintiff and defendant. If the plaintiff is found to be 20% responsible for the injury, he or she can only collect 80% of appropriate damages.

Many courts also use a modified comparative negligence rule. This means that the plaintiff cannot be more than 50% responsible for the accident in order for the plaintiff to recover any damages at all.

What Defenses Are Available?

Negligence cases require several elements, and the defense must be specific to the charges. There must be a proven duty of care that was breached. If a defendant can prove he or she did not have a duty of care, the negligence charge can be dropped.

  • Automobile accidents: Drivers must take reasonable care and follow the laws when operating motor vehicles. If they were legally following the cell phone rules in their state, such as using a hands free device, they can prove duty of care.
  • Slip and fall: Defendants of slip and fall cases have to show that they did everything they could to warn people of hazardous conditions. If signs were posted, or if the plaintiff was ignoring warnings, their available damages may be reduced or eliminated.
  • Premise Liability: This refers to the idea that the owner of a property has the responsibility to create safe conditions for visitors. If the accident occurred due to defects in the property, the owner can be held responsible for negligence; however, lack of care on the part of the injured party can reduce damages if comparative negligence is applied in the case.

Do I Need a Lawyer?

If you have been injured in an accident, or are being sued by someone you injured in an accident, you need to speak to a personal injury attorney right away. A lawyer can help advise you of your options and create the best possible case for you.