How Negligence Affects Damage AwardsApril 20, 2011
In our previous blog, we talked about how people might still recover damages in a personal injury case, even if they were partly at fault for causing the accident. This is a common misconception that keeps many injury sufferers away from court and away from the compensation they deserve. It’s true that the law in several U.S. states prevents people from collecting damages if they contributed to the accident, even in the tiniest way. But most states prorate damage awards based on each party’s responsibility. These two ways of determining negligence are contributory negligence and comparative negligence, and depending on the state where you file your personal injury claim, it’s important to know the difference.
This approach states that if multiple people are in an accident, an injured party is only able to recover damages if that party did not contribute to the cause of the accident in any way. The injured party must be 100 percent blameless and not even slightly responsible for the accident. This is a sweeping, sometimes harsh way of awarding damages, which is why most states have moved away from this very old legal defense.
States practicing: Alabama, District of Columbia, Maryland, North Carolina, Virginia
Pure Comparative Negligence
Under this system, the judge or jury assigns a percentage of responsibility to each party involved in the accident. Damage awards directly correlate with the percentage of responsibility. For example, if Party A suffered $100 in damages but was found 20 percent responsible for the accident, Party A would have its damage award reduced by its 20-percent responsibility, and would be awarded $80.
States practicing: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington
Modified Comparative Fault – 50%
In this approach, an injured party can only recover damages if that party was less than 50 percent responsible for the accident. As in pure comparative negligence, the damage award will be reduced by that party’s percentage of responsibility. If the injured party is found responsible for half of the accident or more, that party becomes ineligible to recover any damages.
States practicing: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and West Virginia
Modified Comparative Fault – 51%
By far the single most widely practiced method of determining damage awards, this system is just like the 50 percent system, except the “at fault” threshold is raised one percentage point. This means that an injured party can be responsible for exactly half of the accident and can still recover prorated damages; however, once responsibility exceeds half the accident, that party becomes ineligible to recover any damages.
States practicing: Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming
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