Every year, millions of car accidents happen in the US: 6 million to be exact. Of these accidents, about 3 million result in injuries. When someone is injured or there is property damage, most states determine who is at fault for the accident.
But what happens when you are both at fault? This is called comparative negligence. When both (or more) drivers or even pedestrians or cyclists share the responsibility for the accident, the insurance companies will need to figure out how much responsibility each driver has so they can determine how much each pays.
This can be a bit confusing, so read on to learn more about comparative negligence, the different types, and how it is determined.
What Is Comparative Negligence?
When two or more parties are at fault for a car accident, then comparative negligence comes into play. Comparative negligence is also called a comparative fault, and its the principle of determining who is at fault and how must responsibility they have.
The victim could be at fault along with other drivers. This is important as it will determine how damages are awarded to the victim. If a judge or jury decides that the victim was 20% at fault for the accident and the defendant was 80% at fault, the victim of the accident may only be able to get 80% of the damages, since they shared fault.
Types of Comparative Negligence
Different states have https://wallethub.com/edu/contributory-vs-comparative-negligence/10789. These rules determine the amount of damages you can receive, based on your degree of fault.
There are only a handful of states that use this rule. Alabama, Maryland, North Carolina, Virginia, and Washington D.C. use the principle of contributory negligence, which means that plaintiffs (i.e., victims) can’t get any damages if they were at fault at all. Even if you were found to be only 1% at fault, you cannot receive damages in these states.
Pure Comparative Negligence
A few more states (13 of them) use the rule of pure comparative negligence. This rule states that damages are awarded based on the court’s determination of fault. If the court finds that a plaintiff is 95% at fault, they can still claim damages for the 5% that they were not responsible for.
There is only one state (South Dakota) that uses this rule. Instead of assigning fault in percentages, the slight/gross rule determines fault on a “slight” or “gross” basis. Gross negligence means that the defendant was reckless and disregarded the safety of the injured person (the plaintiff).
If the plaintiff’s contribution is slight and the defendant’s contribution is gross, then the plaintiff gets a larger award. If the plaintiff has more than a slight responsibility, their damages will be lowered.
Modified Comparative Negligence
Most states, however, operate under modified comparative negligence rules. All of the rest of the states consider who was at fault and how much fault they hold but then limit the ability to collect damages. There are two types of modified comparative negligence: the 50% bar rule and the 51% bar rule.
Under the 50% bar rule, if a plaintiff is 50% or more at fault, they cannot collect any damages from the defendant. Under the 51% bar rule, however, allows the defendant to collect damages as long as they were assigned less than 51% of the blame.
How Is It Determined?
Insurance companies will consider the role of each of the parties involved in an accident to determine how much responsibility each share. They will typically then try to settle with you, based on how much fault they think you have. If you can’t reach a settlement agreement with the insurance company and decide to file a lawsuit, the determination of fault may lie in the hands of a jury.
Some plaintiff conduct that could be considered negligence includes:
- Jaywalking or making sudden movements, such as running out in front of a car or crossing without looking
- Riding with a driver who you know is under the influence, reckless, tired, etc.
- Interfering with the driver’s operation of the car (such as grabbing the steering wheel)
- Riding in a car you know is defective (e.g., one with faulty brakes, without working headlights, etc)
- Not wearing a seatbelt
If you are the plaintiff and you have engaged in any of these behaviors, you could be considered partially responsible for the accident, and as such, your damages will be reduced if you’re in a pure comparative negligence or modified comparative negligence state.
Typically, the defendant (or more than likely, their attorney) will have to show that the plaintiff’s negligence contributed to the accident. If the plaintiff’s behavior made the injuries worse but didn’t cause the accident, the defendant may find that they are found to be fully responsible.
Hire an Experienced Attorney
Because comparative negligence can be a tricky thing, and because it could be the difference between a large settlement and nothing at all, you should consider hiring an experienced personal injury attorney. One who has handled car accidents and other injury cases where multiple parties may be at fault will be your best option.
An attorney can do their own investigation into the accident to determine who they believe is at fault and use this information to negotiate with the insurance company and argue at trial, if necessary.
Our personal injury lawyers at Sweet Law specialize in injury cases, including car and motorcycle accidents, wrongfully death suits, and general personal injury cases. Contact us today for a free case consultation.