Fault is a constant issue of contention when it comes to a personal injury claim. Who caused the accident and who should pay for the damages? When it comes to fault, one party is hardly the only person to blame. More times than not, each party plays a role in why an accident happened.
So, should one party hold all of the responsibility or should it be divided up between the parties? It is at this point where the question of comparative fault and how each party should be held responsible for the damages caused arises.
We have asked attorney Alaina Sullivan about what you should do. Here is what she had to say:
The Question of Fault
Determining who is at fault is never an easy question. Both parties almost always play some part in causing an accident. Granted, while one party may play a significantly larger portion of the cause, the other one usually plays some role in it happening.
It is for this reason that the concepts of contributory negligence and comparative fault came to be. They were created in response to defendants arguing it was unjust to be held completely responsible for an accident when the injured party also played a role in causing the accident.
Two different defenses or “fault apportionment” levels are commonly used: contributory fault and comparative fault. Under the concept of contributory fault, if the injured plaintiff played any part in the accident, he or she is completely barred from seeking relief.
Comparative fault, however, is a less restrictive way of viewing blame, which we will explore below.
Comparative Fault
Comparative fault divides up liability or responsibility for a personal injury or accident. The term comparative fault refers to divided up damages between parties based upon the percentage of “fault” or negligence they towards causing the accident.
The injured party is then compensated for his or her injuries but this amount is reduced by the percentage he or she was found to be negligent.
Pure Comparative Fault
While pure contributory negligence completely bars the plaintiff from seeking compensation for injury, pure comparative fault lets the plaintiff seek compensation no matter what. Under pure contributory negligence, if the injured party is found to be responsible by any small percentage, that party is barred from seeking compensation for injuries.
However, under pure comparative fault, the injured party or plaintiff’s negligence, even if it is significant, will not bar him or her from seeking damages.
The 50-Percent Modified Comparative Fault Rule
Under the 50-percent modified comparative fault rule, the injured plaintiff can collect damages if it is determined that the plaintiff’s negligent actions is 49 percent or less. If the plaintiff’s percentage of liability is determined to be 50 percent or more, then he or she will be barred from receiving any damages.
Several states utilize the 50-percent modified comparative fault rule, including Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Tennessee, Utah and West Virginia. The remainder of the states use a different form of modified comparative fault, including the 51-percent modified comparative fault rule.
This rule protects the court system from excessive lawsuits from individuals who believe they should be compensated for damages even though they played a larger role in the cause of the accident than the others involved.
It protects judicial efficiency and avoids the downfalls of pure comparative fault, but it also allows protection for individuals who may have acted negligently in some small manner but deserve to be compensated for their injuries despite this part.
Otherwise under pure contributory negligence, an injured plaintiff would find him or herself completely out of luck if he or she happened to make one small mistake when an accident occurs. It is a matter of blame sharing and also ensuring that justice is served for all involved.
How Does A 50/50 Claim Work?
If you have been in an accident and suffered injuries, you may want to file a claim against the other party to help recoup compensation for the damages you have suffered. Depending on the state in which the accident occurred, and the laws in place, you may be able to file a claim even if you are partially to blame for the accident. In that case, you may file a 50/50 claim.
A 50/50 claim means that you can collect damages even if you are partly to blame. This can be done in state that uses the 50 Percent Modified Comparative Fault Rule, which allows for claims so long as you are not more than 49 percent at fault.
You can also file a claim if you are in a state utilizing Comparative Fault. In that case, you can recover compensation for whatever percentage of fault the other party is for the accident. As an example, if your damages are $100,000 and you are 50 percent at fault, you can recoup $50,000 from the other party.
States that Use Comparative Fault
Here is a list of the states that use pure comparative fault, which means you can file a claim even if the other party is only one percent to blame:
- Alaska
- Arizona
- California
- Florida
- Kentucky
- Louisiana
- Mississippi
- Missouri
- New Mexico
- New York
- Rhode Island
- South Dakota
- Washington
States that use Modified Comparative Fault have varying rules. Those using Modified Comparative Fault but follow the 50 percent bar rule, which means you can file a claim if you are 49 percent or less at fault. These states include:
- Arkansas
- Colorado
- Georgia
- Idaho
- Kansas
- Maine
- Nebraska
- North Dakota
- South Carolina
- Tennessee
- Utah
- West Virginia
States using the 51 percent bar rule for Modified Comparative Fault, meaning you can file a claim so long as you are 50 percent or less to blame, include:
- Connecticut
- Delaware
- Hawaii
- Illinois
- Indiana
- Iowa
- Massachusetts
- Michigan
- Minnesota
- Montana
- Nevada
- New Hampshire
- New Jersey
- Ohio
- Oklahoma
- Oregon
- Pennsylvania
- Texas
- Vermont
- Wisconsin
- Wyoming
Regardless of the state you were in at the time of your accident, you will need supporting evidence and documentation to back up your claim. More specifically, photos, an accident report(s), witness statements, and statements from those involved in the crash can all serve as supporting evidence and documentation.
And, with the accident report, photos, statements from those involved in the crash, and witness statements, the insurance companies and attorneys should be able to determine the percentage of responsibility for all parties involved in the accident.
Calculating Your Damages
You will need to provide medical bills, proof of lost wages, damage repair estimates, and other associated losses to determine the total value of your damages. Then, after the percentage of fault is determined, your personal injury lawyer can determine a fair settlement from the other party for your injuries and damages.
When you enlist the help of an accident injury attorney, you are more likely to have a successful claim and recoup compensation for the damages that you suffered because of the accident in question. Personal injury lawyers take cases on a contingency basis, so you will not have to pay anything upfront. Instead, your lawyer gets paid only if, and when, you win your claim and recover compensation.
Contact an Attorney Today
If you have been involved in a car accident in a jurisdiction where 50-percent comparative fault is the legal standard and have questions about your rights, it is always recommended you contact an attorney today to discuss your case if you do not currently have a lawyer or have any questions.
A licensed personal injury attorney will be able to evaluate your case and determine if you have a claim against the other party’s insurance company. To receive the compensation for your medical bills, property damages, and pain and suffering, you should speak with a personal injury attorney in your area today.
