Comparative negligence is a possible defense used in cases of personal injury. It assigns amounts or percentages of blame on either the defendant or plaintiff and that amount controls how much either party will receive in compensation.
For example, this defense can reduce the driver’s liability exposure and the accident victim from recovering damages according to their percentage of fault, or by barring recovery altogether in some cases. Once an injury occurs in a collision, oftentimes it is not clear who is at fault therefore to determine who needs to take responsibility for the damages, comparative negligence theory helps in deciding it.
Courts assign a percentage to determine the damage amount each party is responsible for based on their fault in the resulting injuries in a car accident. This is the amount you need to pay for and are legally obligated to do so.
Are There Different Types of Comparative Negligence?
Generally, states use three approaches for comparative negligence theories. The first approach is the pure comparative negligence which takes into account the driver’s fault that resulted in the injury. For example, the driver’s damages awarded by the judge or jury are totaled and then decreased to reflect their contribution to the injury.
If a party was awarded $10,000 and they were 25% responsible for the injury then they would be awarded $7,500. California follows a pure comparative theory which determines how much you will receive for your personal injuries. In this state the court allows injured parties to collect damages even if they are 99% at fault for the accident.
The second approach is known as the modified comparative negligence. This is the most common approach and the party will not be able to recover if they are found to be either equally responsible or more responsible for the resulting injury. This means that in order to recover damages, the driver must not be more than 50% at fault for the resulting injury.
In other words, a driver will not be able to recover if the jury decides that they are equally responsible 50% or more for an accident. Some states like Hawaii and lowa have a variation of this rule, a driver will not be to recover if they are found more responsible which is 51% or more than the other driver or defendant.
The third approach is the pure contributory negligence which is only recognized by a few states. This theory states that if an injured party has even the slightest bit at fault for the accident, they cannot collect any damages.
A state that follows contributory negligence, fault can be a difficult issue in a lawsuit. For example, if a driver is speeding in his car and another car cuts him off, then he will not be able to recover if the jury decides that he is even 1% at fault for speeding.
The theory of contributory negligence is used for the conduct of an individual that creates an unreasonable risk to one’s self. The purpose is to deter the person from such conduct and legalize a duty to act as a reasonable person. Therefore, if a person fails to act reasonably and risks the lives of others by causing the injury, then that person will be held liable for their actions.
How Can You Establish a Plaintiff’s Negligence?
The plaintiff, also known as the accident victim, can also be at fault for their own injuries in a car collision by failing to practice due care when operating the vehicle. Sometimes, car collisions occur due to the fault of both drivers and therefore it is required for the both parties to be cautionary and be safe for other drivers on the road too. To prove the fault and maximize the award for recovery, you need to show that the person acted without due care by breaching the duty to act and caused the accident.
Here are a list of examples that show failure to exercise due care and being equally or partially liable for the injuries sustained during the car accident:
- Speeding and driving above the designated speed limit;
- As a pedestrian, jaywalking or making sudden unexpected movements;
- Riding with a driver who is drunk, reckless or sleepy;
- Driving a car that is defective in major or minor ways; and
- Interfering with the driver’s ability to operate the car.
Do I Need to Contact a Lawyer for a Comparative Negligence Defense?
If you have been in a car accident, then you may have a defense to comparative negligence if the accident victim also was at fault in sustaining the injuries. Therefore, it is important to understand the defenses in your local state to maximize your recovery for damages in a car collision.
This can get complicated especially if the other party is not cooperating, it is suggested to seek a personal injury lawyer to figure out what your options are for being awarded damages based on whose fault it is.