Did you know that more than one party can be at fault after the occurrence of an accident? When this is proven, the court will determine the amount of damages assigned to the plaintiff and defendant. This situation, in legal terms is referred to as comparative negligence.
What is Comparative Negligence?
This term refers to a legal principle which is keen to determine the proportion of fault in a personal injury case for each party involved. Therefore, both parties are considered at fault and it calls for the allocation of damages. After an accident, the fault of each participant is realized based on everyone’s contribution to the incident. The guide below will help you to understand the effect this law has on your compensation.
Different states apply differing law, so it is crucial that you check what your state dictates in terms of how much you are liable for when filing for a personal injury claim.
What are the Elements of Comparative Negligence?
In an attempt to prove this claim, an individual needs to demonstrate the following:
- That the plaintiff would have taken action to avoid being harmed
- That the plaintiff did not take the necessary action a reasonable individual should have partaken in the circumstance
- That the negligent failure on the plaintiff’s part was considered partly or totally responsible for the injury (injuries) behind the lawsuit.
In an effort to raise a defense under this basis, the defendants must indicate that the plaintiff had an opportunity to prevent the occurrence of the accident. In addition, it is important to show that the plaintiff was careless which led to their injury. The defendant must be able to prove the above to illustrate the plaintiff’s contribution towards the unfortunate incident in terms of duty, breach, causation, and damages.
Duty
Duty refers to the presumed responsibility of an individual to avoid causing harm to another individual.
Breach
A breach refers to going against or violating the duty of care whereby a person is called to behave reasonably by obeying the applied terms and conditions over a specific situation.
Causation
This element creates a link between the injuries caused and the violation of duty whereby the plaintiff is called to provide proof that they suffered as a result of the defendants actions.
Damages
Damages refer to the result of the accident whereby the plaintiff must prove that the physical injury, property damages, and/or financial loss arose from the actions in question.
Types of Comparative Negligence
Under normal circumstances, this kind of defense is raised in a personal injury claim where both the defendant and the victim are partly responsible for the harm caused. Some cases that call for this law defense include car accidents, motorcycle accidents, pedestrian accidents, wrongful death, as well as truck accidents. There are basically three types as indicated below:
Pure
This type of negligence law allows the drivers involved in an accident to seek compensation. This claim is regardless of the share of fault, allowing an individual to file a claim even if they have the largest share of responsibility for an accident. In this, your settlement will be reduced by your percentage of fault.
Each party takes responsibility for their share of fault and will therefore; file a claim for the portion they are not capable for with the other party’s insurance company. Currently, there are 12 states in the US that apply this law that include: Alaska, Arizona, California, Florida, Kentucky, Mississippi, Louisiana, Missouri, New Mexico, New York, Rhode Island, as well as Washington.
Modified
This type of negligence law allows an individual to claim from the other driver with a catch that your degree of fault comes under a specified threshold. The two threshold rules in use are the 50% and 51% rules.
For example, with the 50% threshold rule, an individual who has 50% or more responsibility on the damages cannot file this kind of case claim. Currently, there are 10 states in the US that apply this law on the 50% threshold whereas there are several states that apply this law under the 51% rule.
States that apply to the 50% threshold rule include: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Tennessee, as well as Utah.
States that apply the 51% threshold rule include: Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, West Virginia, Wisconsin, as well as Wyoming.
Slight/Gross Negligence
Though this law is rare because it is only applied in one state, South Dakota, whereby rather than a fault percentage, slight or gross contributions is assigned in an accident. This means that the amount awarded after an accident is more if the plaintiff’s contribution is considered slight in an accident whereas the defendant’s is gross (reckless yet conscious).
For example, in the event a car hit and injured a pedestrian crossing the road, the impact will be different if the driver crossed a green light. If the light was green, the award would be slight and if the driver passed a red light, the award would be gross.
Legal Considerations
Under the state laws, the plaintiff can claim damages even for the 1% that is considered the defendants fault and settle compensation for as much as 99% of the claim.
Every participating party that contributed towards the occurrence of an accident is liable to receive compensation according to their respective contribution.
Practical Advice
- Consult reputable and reliable personal injury attorney to adequately determine your percentage of fault
- Always check which type of law applies to your state before filing for such.
Frequently Asked Questions (FAQs)
Q: Can I bring up a personal injury case if I was partly to blame for the fault?
A: The keyword here is “partially” and what this means is that the other party also shares blame for the accident. This said, you can bring forth such a claim if only you share fault. It is crucial to note that your compensation will not be equal but it will reflect on the contribution you played to cause the accident in question. If you played a major role, then you are likely to receive a less amount.
Q: How can I raise the aspect of negligence in my personal injury case?
A: In such a case, the defense may choose to raise the issue when responding to compensation claims. However, when raising the concern, the jury must first decide on whether both participating parties were at fault. Once it is agreed upon, they will then decide the percentage of fault for each party involved.
Q: How is comparative negligence calculated?
A: The calculation is determined through a simplified process.
First, the jury determines the victims damages and awards an amount for the damages
Secondly, the jury will assign a percentage of faults to either party.
The courts will then deduct the defendant’s percentage from the total compensation amount. This percentage is determined depending on the type of negligence and the state of operation in question.
Q: What compensation am I entitled to in a personal injury case?
A: You are entitled to be compensated for medical expenses, lost wages and lost earning, rehabilitation costs, property damage, as well as emotional distress. With this type of law, your compensation will be affected because you share the fault of the accident.
Q: How can a personal injury attorney help?
A: The legal system can be rather tricky especially for those who are not familiar with it and thus the reason it is important to work with an experienced lawyer. The objective is to ensure that your rights are protected and that your compensation is fair and just. Legal representation helps to determine fault in an accident, provide the proof of shared fault, and finally negotiate with involved parties (insurance companies and victims). In addition, you will be able to better understand the extent of your case within your jurisdiction.
Q: Do all states in the United States accept this law?
A: A majority of the states in the United States apply this law with 45 states out of 50 recognizing the law. However, it is important to recognize which type of law is acceptable within your jurisdiction.
Looking into it, only one state (South Dakota) allows for slight vs. gross negligence. Your attorney can verify which law will be suitable for your case.
Conclusion
Comparative negligence can be overlooked many a times. However, with the best legal representation in your personal injury case, you can share fault and also receive compensation if the other party contributed towards the unfortunate incident in question. Understanding this law is crucial in ensuring that you do not suffer damages on your own in the event the plaintiff contributed towards causing the accident. Considering that there is no one-size-fits all in this situation, seek the services of the best attorney to fully represent your case.
References
Edelman, Paul H. (2007). What are We Comparing in Comparative Negligence? Washington University Law Review, Vol. 85. Vanderbilt Law and Economics Research Paper No. 06-20. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=929562
Chung T.-Y. (1993). Efficiency of Comparative Negligence: A Game Theoretic Analysis. Journal of Legal Studies 22: 395-404. https://link.springer.com/referenceworkentry/10.1007/978-1-349-74173-1_71