Posted by Vine Marketing
On July 26, 2023

Comparative Negligence


If a vehicle changes lanes without signaling and gets rear-ended by another driver going fifteen miles over the speed limit, you may have a case where both drivers are partially at fault for the accident. So what now? Do you take full blame for the accident? Does this mean that you are out of remedies?

The short answer is ‘not usually.’  This wouldn’t be the first time courts have addressed cases with plaintiffs engaging in behavior that contributed to their own damages. When you are involved in an accident or injury, the court analyzes multiple aspects of fault and assigns a weight to each contributor to the accident. This practice is called comparative negligence.

The bad news is that if you did bear some blame for your injury, the amount you can recover will typically be less than your damages. However, it does not leave you completely without options, and there is a solid chance that you can recover something if you act wisely and have a skilled lawyer on your side. Let’s discuss the different versions of comparative negligence and how it could affect your case.


Pure Comparative Negligence

California is one of twelve “pure” comparative negligence states. This means the jury will determine what percentage of fault to assign to each party involved. This can range from 100% and 0% in cases of clear liability, to a 50-50 split if the jury believes each party was equally at fault. If more than two parties were involved, the jury assigns a percentage of responsibility to each one. While the rules for damages are complicated, particularly in cases with more than two parties, the general principle is that the more at fault you are for your own accident, the lower your recovery will be.


Modified Comparative Negligence

The Modified Comparative Negligence Standard is mostly the same as the “pure” standard in CA, but with a catch that can bar you from monetary recovery. In modified comparative negligence, there is a threshold that prevents you from recovering damages entirely. In ten states, you can not recover any damages if you are 50% responsible, equally at fault for your injuries. In 23 states, the threshold is 51%, if you are more at fault than the other party or parties.


Contributory Negligence Standard

A handful of states still operate under the standard of contributory negligence. This means if a plaintiff is at fault for their injuries to any degree, they cannot recover any damages. This particularly strict standard is uncommon, currently only still in practice in Alabama, Ohio, North Carolina, Virginia, and D.C.


Ramifications of Comparative Negligence

As a practical matter, when comparative negligence is involved, accident reconstructionists are needed in almost all cases to determine the proportion of fault assignable to each party. You can learn more about accident reconstruction and its importance to your case in our article here.

Naturally, this means you should not be surprised when the other side tries to find ways to assign some of the blame for the accident to you. Comparative negligence is not only a legal doctrine that allows you to recover even if you carried some fault, but is also a defense to prevent a defendant from having to pay 100%.

It can be tempting to take such accusations personally, but this is typically a simple business move as insurance companies try to save themselves from large payouts. You should be aware that this is the information that insurance companies are looking for when they take initial statements. This is also why it is important not to give a statement immediately after an accident. Your memory and recall of events can be affected by injuries, and your statements will usually be recorded and used against you later in the case. We always recommend speaking to a qualified injury attorney before giving any statements or signing any releases.


How We Can Help

Comparative negligence is extremely difficult for juries to judge. Assigning a numerical percentage to a real-life situation after it has happened is not an exact science. That is why it is important to have a competent personal injury attorney on your side. In readying for your case, we can help you with gathering evidence, navigating documentation and paperwork, and preparing statements. We can also help protect you from predatory settlement practices and statement traps that insurance companies rely on to avoid paying out.

If your case goes to trial, an attorney can help make the most powerful presentation possible to a jury. Many factors will weigh into a jury’s opinion on the case, and you need a skilled advocate to help navigate the stress of a trial, present a powerful argument, and avoid pitfalls and flubs that can damage your case in the eyes of the jury. Call us today for a free consultation, and we can help you obtain the highest value for your case.