Personal injury cases are never simple. For instance, to determine the percentage of fault through contributory or comparative negligence, entities involved must be very patient.
In premise, contributory negligence references conduct that creates an unreasonable risk to self. Whereas, comparative negligence references risk attributed by others.
In this article, we will take a closer look at both, but more specifically, comparative negligence.
So if that’s something you want to know about, keep reading.
Negligence In Injury/Accident Claims
Negligence, in general, references any conduct that creates a risk of harm to others. If you are negligent, your conduct might cause others to be injured, thus making you legally obligated to pay damages.
In order to succeed in a negligence claim, the party must prove the following:
- The defendant owed a duty to the plaintiff
- The defendant’s conduct was the direct cause of injury
- The defendant’s conduct was the relative cause of injury
- The defendant breached their duty or failed to act in a certain way
- The plaintiff was a victim to actual injury
However, each of these clauses can be interpreted in a variety of ways. This makes personal injury cases quite complex.
The idea of contributory negligence is that an entity has a duty to act reasonably. When the entity does not do this and injury happens, that entity can be held accountable for the injury, even though another entity was involved.
For instance, John, a driver, crashes into Jane, a person crossing the street without heeding the warning of signs nearby. So who’s at fault?
After the injured entity files their claim, the defendant can assert contributory negligence against the plaintiff, stating that the injury happened as a result of their own actions. This is a counterclaim of contributory negligence.
If the defendant can prove this claim, the plaintiff might be barred from receiving damages or have them reduced to reflect their percentage of guilt. Jane would most likely be considered partially faulty, thus liable for the negligence of crossing the street carelessly.
Some states choose to separate the blame as well as the responsibility of damages. This is done via comparative negligence theories. The percentage is determined via the allocation of fault.
For instance, Jane sues John and claims that her suffering is worth $200000. Furthermore, the jury finds that Jane’s negligence had played a role at a percentage of 40%, and John’s negligence accounted for the other 60%.
If the jury agrees that the damages are $200000, Jane would only be able to recover $120000 ($200000 reduced by 40%). If her negligence was found to be 60% instead, she would only be able to recover $80000.
This instance runs true for all of the states that have the pure theory of negligence. Other states have modified principles, permitting lawsuit only if fault for the plaintiff was less than 50%. Comparative negligence falls into a variety of categories, so let’s take a look at them.
Pure Comparative Fault
States that recognize pure comparative fault allow entities to collect damages even if they are 99% guilty. Nonetheless, the quantity that can be recovered will b delimited by the entity’s actual allocation of fault.
So if a drunk motorist is accountable for most of the blame, but chooses to make an injury claim because the other driver had a broken taillight, they can collect the minimal damages.
Almost one-third of states make use of this rule, including New York, California, Florida.
Modified Comparative Fault
Almost all of the states make use of a modified fault model, which is derived from two groups:
the 50% bar rule and the 51% bar rule. In states that make use of the former, an entity that is 50% or more accountable for the injury will not be able to recover damages. In states that follow the 51% rule, an entity cannot recover if they are 51% guilty.
However, there are exceptions for each, and sometimes the rule does not constitute the final outcome for the case. The jury and judge will decide the final outcome for these cases, hence why the importance of a lawyer cannot be stressed enough.
How Is the Percentage Evaluated?
In most personal injury claims, the defendants can try to argue that the plaintiffs were at fault for their injuries. They might choose to argue that the plaintiffs at least partially are accountable for their damages, thus reducing the amount that they can receive.
Plaintiffs develop their cases in a way that minimizes their negligence that they might have employed in the accident, thus maximizing their potential compensation.
If you’re suffering from a personal injury case, an attorney should be able to help the court allocate fault via the gathering of evidence that shows that the defendant is primarily accountable for the accident. The evidence gathered might include witness testimony, expert testimony, photographs, documents, etc.
Once presented, the court will assign a percentage of allocated fault to the entities involved. As long as the attorney can prove that the defendant was more accountable for the injury, the plaintiff will recovery a greater population of damages.
Personal Injury Resolved
Now that you know what comparative negligence is, you are well on your way to make use of it for the sake of recovering the suffrage that you were a victim of. As long as you can prove that the defendant was accountable for most of the fault, you will succeed in your case.
If you’re interested in learning more about similar topics, feel free to check out our legal articles on the sidebar or filtered categories.