Car accidents happen every day where the property is destroyed, and people sustain injuries. When an accident occurs, among the first things people want to know is who is at fault. Comparative and contributory negligence concepts address this concern and provide ways to allocate liability between the parties involved when it isn’t entirely clear. Let us find out what these concepts mean and how they apply in personal injury claims. But just like these terms suggest, you may be relatively negligent for your injuries or contribute to a negligent act.

Understanding Negligence in Personal Injury Claims

The term ‘negligence’ is used to describe conduct that brings about an unreasonable risk of harm to other people. If a person acts negligently, and their negligent act causes you to sustain an injury or injuries, they are legally liable for compensating you. For you to succeed on your negligence claim, you will need to prove five critical elements, including:

  • The negligent party owed you a duty of care.
  • They didn’t act reasonably or breached that duty (for instance, they drove recklessly or while under the influence)
  • Their breaching the duty of care was the real cause of your injuries
  • Their breach was the proximate cause of your injuries (i.e., they should’ve known the violation would result in injuries)
  • You sustained an injury or injuries for which you’re claiming damages

Were You Also Liable For The Crash?

When you file a personal injury lawsuit, one of the arguments the defendant will assert is that you also were to blame for the collision or resulting injuries.

In case you have filed a suit but are partly at fault for the crash that led to you sustaining injuries, the total compensation amount you recover is likely to be affected. As far as timing is concerned, this may happen earlier if you solve your case without going to court. Alternatively, it may be the result of a lengthy trial, whereby the jury determines liability (by assigning fault among or between the involved parties) and appropriate compensation (the complainant’s award for the damages).

The extent to which your liability could impact your compensation amount— or the probability that you’ll be barred from recovering damages altogether— is based on whether your state recognizes the contributory negligence or comparative negligence standard. Similarly, suppose you willingly took part in a dangerous activity and ended up being hurt. In this case, an insurer or court may say you assumed the risk of harm and may deny your compensation claim.

Contributory Negligence

While comparative negligence statutes can lower a plaintiff’s compensation when they are partly to blame for the accident, contributory negligence laws are not forgiving. Under the contributory negligence concept, any victim who shares any percentage of blame for an injury or accident is usually barred from recovering any damages via a personal injury lawsuit. For example, suppose you reside in a state governed by contributory negligence laws and are in an auto crash that was only 1% your fault and 99% the driver’s fault. In this case, you cannot receive any compensation for the injuries you would have sustained by bringing a personal injury suit.

Say, for instance, you are crossing the road without heeding the do-not-cross warning sign of the adjacent streetlight or carefully looking out for traffic, and a driver hits you. Who is to blame in this case?

After you bring a personal injury suit against the driver, the motorist may claim contributory negligence against you, effectively mentioning that you sustained the injury partly due to your own actions. This would be a contributory negligence counterclaim, a prevalent defense against negligence claims.

If the driver can prove the contributory negligence claim, the court will entirely bar you from receiving any compensation. You would be deemed to have contributed to your own injuries for carelessly crossing the street; therefore, you wouldn’t have the right to receive any compensation.

Historically, all states observed the contributory negligence rule, resulting in harsh results. Most states then developed and adopted comparative negligence laws. Currently, only five states still follow the contributory negligent rule, namely Alabama, North Carolina, Washington, D.C., Virginia, and Maryland.

In these states, liability can be a very challenging issue in a lawsuit. For instance, if a complainant is speeding in their car and another vehicle cuts them off, they won’t recover if the judge rules they are even 1% to blame for speeding.

Comparative Negligence

Most states have adopted the comparative negligence concept over contributory negligence, where every party’s fault for injuries is considered when determining damage recovery.

For instance, suppose you are in an auto accident, and the court finds that your degree of fault is 20%, whereas the other motorist’s fault is established to be 80%. Maybe that’s what the police report concluded, or it was a stipulation agreed upon after your insurance provider and that of the other driver probed the collision. Here, if you bring a claim for property damage and your injuries, any damages you recover are likely to be reduced by 20% (your percentage of liability for the crash). Therefore, in case your total compensation amount is $20,000, you will only $16,000.

We mentioned that most states are using comparative negligence laws when awarding damages in personal injury claims. However, these states also generally fall under one of the two comparative negligence categories— pure comparative negligence and modified comparative negligence.

Pure Comparative Negligence

Under pure comparative negligence law, you can recover compensation irrespective of your degree of fault. This means even if you are 90% liable for the accident, you can still recover 10% of your damages from the other guilty party or parties.

One primary disadvantage of pure comparative negligence law is it permits an individual to recover compensation for injuries for which they were significantly responsible. Thus, most states have adopted the concept of modified comparative negligence to address this drawback.

Only thirteen states follow the pure comparative negligence rule, including Arizona, Alaska, Florida, California, Louisiana, Kentucky, Missouri, Mississippi, New York, New Mexico, South Dakota, Rhode Island, and Washington. Among these states, South Dakota is the only one that follows the slight-gross comparative negligence rule. Here, the defendant and complainant’s respective percentage of guilt are compared only when the plaintiff’s negligence is deemed slight while the defendant’s negligence is deemed gross. The complainant is barred from recovering damages if their fault is more than slight.

Modified Comparative Negligence

There are competing schools of thought in the thirty-three states that follow the modified comparative negligence rule— the 50% bar rule and the 51% bar rule.

Twelve states recognize the 50% bar rule, meaning a victim can’t recover damages if they are 50% or more to blame, but if they are 49% or less to blame, they can recover, though their compensation amount will be reduced per their percentage of fault. States that follow the 50% bar rule within the modified comparative negligence law include Colorado, Arkansas, Idaho, Georgia, Maine, Kansas, Nebraska, South Carolina, North Dakota, West Virginia, Utah, and Tennessee.

Twenty-one states recognize the 51% bar rule whereby a complainant can’t recover damages if they’re 51% or more to blame. However, they can receive compensation if they are 50% or less to blame, but their compensation amount will be reduced per their percentage of fault. The states that adhere to the 51% bar rule are Delaware, Connecticut, Illinois, Hawaii, Iowa, Michigan, Massachusetts, Montana, Minnesota, New Hampshire, Nevada, Ohio, New Jersey, Oregon, Oklahoma, Texas, Vermont, Pennsylvania, Wyoming, and Wisconsin.

In cases that involve comparative negligence, the jury determines the degree of fault of each plaintiff, defendant, and other liable parties. After examining the evidence, the jury then assigns a percentage of fault to each person involved. If the complainant is determined to be less than 51% guilty of causing the crash, their compensation amount will be lowered by whatever degree of fault they are responsible for.

Several Vs. Joint Liability

Tied to and somehow complicating the comparative negligence concept is the notion of joint liability, several liability, and joint and several liability. If there are two or more defendants in a personal injury case, from whom will the complainant collect damages? These three notions answer this question.

Joint liability implies that all the defendants present in a personal injury case are responsible for the complainant’s injury. In this case, every defendant is entirely accountable for the resulting compensation amount.

For instance, if three motorists are jointly responsible for another driver’s injuries, it means they’re each accountable for the resulting damages. Should one of these three drivers die, the remaining two must continue paying for the damages until the victim’s losses are fully compensated. And if one driver pays the victim’s total amount of compensation, the others cannot be sued for that amount anymore; otherwise, the victim will have received compensation twice.

Several liability is the exact opposite of joint liability. Here, every guilty party is only accountable for the degree of injury they caused. Referring to our above example, if those three motorists were each responsible for only a third of the complainant’s injuries, then they’ll each pay only one-third of the total compensation amount. This kind of liability is at times referred to as proportionate liability.

The challenge with several liability is in establishing the precise percentage of guilty for every defendant. For instance, it might be pretty hard to conclude that the at-fault party was 30% to blame, 20% liable, and so on. Several liability closely resembles how fault is shared in comparative negligence defense.

Joint & several liability usually works by holding every defendant accountable for the victim’s injuries as a group first. Then, it’s left up to every defendant to establish the amount of the compensation amount they’ll be liable for.

Thus, going by our above example, each motorist will be treated as a guilty party and, therefore, liable for the complainant’s injuries. If they conclude that only a single motorist is fully liable, that motorist will be required to pay the victim the total compensation amount. And if that motorist disagrees, he/she can bring a separate suit against the other two to make them contribute to the damages payment.

Every state has statutes governing how liability is divided when it comes to personal injury claims. Some states recognize pure rules, whereas others adhere to the modified versions, meaning they can place various limitations on liability division.

States that comply with the pure several liability rules include Alaska, Arizona, Arkansas, Connecticut, Florida, Georgia, Indiana, Kansas, Kentucky, Michigan, Tennessee, Utah, Vermont, and Wyoming. All the remaining states use their modified versions of the joint & several liability rules.

In California State, joint & several liability law was adopted from the old common law. It dictates that two or more defendants can be jointly accountable for the total amount of a victim’s special damages but only severally (separately) responsible for the general damages relative to their (victim’s) degree of fault.

Joint & several liability is valuable, and that’s why different states have adopted it. For one, it lowers the risk the complainant will be subject to if one or several of the guilty parties is judgment-proof. By judgment-proof, it means you can’t recover compensation on a judgment granted against a given defendant because they don’t have any assets. Joint & several liability removes the burden of an uninsured or insolvent at-fault party away from a victim. Instead, it diverts the risk to other at-fault parties since they also bear a given degree of guilt for the crash.

If all the at-fault parties are under the judgment-proof category (though it rarely happens), then the complainant wouldn’t be capable of recovering compensation for his/her injuries. Mostly, however, at least one at-fault party will likely have some assets or insurance that’ll compensate for the loss.

There are various downsides of joint and several liability, one being that it’ll lead to severe inequalities. An example is that an at-fault party that is only 5% to blame but is jointly and severally responsible with another at-fault party who is 95% to blame might end up with full financial liability if the 95% accountable defendant is judgment-proof.

In some cases, you may be at fault through the assumption of risk. Here, the defendant will argue that you assumed the risk of suffering injuries by willfully taking part in an activity you knew was dangerous. This mostly happens in cases involving contact sports like basketball and football and in spectator injury cases (for example, when a foul ball hits a spectator in the stands at a baseball game). If you are in a state that follows the contributory negligence rule, you won’t recover any damages. On the other hand, if you’re in a comparative negligence state, you will share fault with the defendant if he/she is also to blame.

Please note that there are several exceptions within every state regarding whether the given fault allocation system recognized there applies to a certain cause of action. For instance, some states restrict the application of their scheme to only negligence claims and don’t apply it to product liability cases. Others have effective dates that might come into play or rules that may modify the application of their scheme. Knowing the negligence-related laws applied in your state is critical since it will help you make informed decisions concerning the pursuit of your injury claim.

Maximizing Compensation Amount in Your Injury Claim/Lawsuit

Proving fault or negligence in your injury claim or suit is the ideal way of maximizing your compensation. But if you try handling the case alone, you might not be virtually as successful. You want to have an expert personal injury lawyer by your side. The lawyer can also expound on the primary difference between comparative and contributory negligence should you have any more questions.

Your lawyer will work untiringly to show the other party’s liability to maximize your possible recovery. The earlier you hire a lawyer, the sooner they will start working on your claim. This includes gathering proof and launching an investigation.

It may be necessary to hire experts to assist in solving your case, and your lawyer possibly has an extensive network of respected people who they can contact based on your needs. Common experts include medical doctors, accident reconstructions, subject-matter experts, investigators, etc. They could provide more evidence that’ll build a compelling case. If proof shows that the at-fault party was 100 percent to blame, then you’re entitled to 100 percent of your damages.

Find a Los Angeles Car Accident Attorney Near Me

At Los Angeles Car Accident Attorney, our expert personal injury lawyers are dedicated advocates for your rights. We have extensive experience and the necessary expertise to handle a wide array of injury claims. We will fight to establish negligence and ensure you receive the compensation you deserve.

On the other hand, if you have been sued for being negligent but believe the complainant is partly to blame, we may be able to help you file a counterclaim for comparative and contributory negligence. To schedule a cost-free, no-obligation consultation for your case evaluation, call us at 424-237-3600 today. You don’t want to try handling a personal injury case by yourself. Let’s handle the arduous process while concentrating on recuperating and returning to your normal life.