Many accidents are caused not by one party but by two or more parties. How does the personal injury compensation system determine fault when more than one party was at fault for the accident that produced the injuries in question?
lThe concept of contributory fault provides the answer.
The Three Forms of Contributory Fault
Each state, including California, has addressed the multiple fault problem by enacting some form of contributory fault (below referred to as “comparative fault”) that applies to various personal injury claims, from car accidents to medical malpractice,
Contributory negligence is one of the three primary forms of comparative negligence. It is a particularly harsh system that denies an injured victim any compensation if they were even 1% at fault for the accident.
Contributory negligence is an older system that other compensation systems have replaced in almost every US jurisdiction. Only Alabama, Maryland, North Carolina, Virginia, and Washington, D.C. still apply the contributory negligence system.
“Pure” Comparative Negligence
California is one of many states that apply “pure” comparative negligence to negligence claims, which is the most common personal injury cause of action. Under pure comparative negligence, the court will assign each party to the accident (automobile drivers, for example) a percentage of fault.
For example, the court might assign 20% fault to Party A and 80% to Party B. The court will then apportion compensation accordingly:
- Party A pays 20% of their own compensation and 20% of Party B’s damages; and
- Party B pays 80% of their own compensation and 80% of Party A’s damages.
In car accident cases, for example, courts frequently assign both parties a percentage of fault.
The pure comparative negligence states are California, New York, Louisiana, Arizona, Mississippi, Kentucky, Alaska, Florida, Missouri, New Mexico, Washington, South Dakota, and Rhode Island.
Modified Comparative Negligence
There are some consequences of pure comparative negligence that may be undesirable. For instance, if the damages suffered by the party who was mostly at fault are much greater than the compensation suffered by the other party, the party with the lesser percentage of fault might end up with a net loss.
Some people find this unfair. Some people also find it unfair that a party who was mostly at fault for an accident should be able to collect any compensation at all. In response to these concerns, most states have enacted one of two forms of “modified comparative fault” to resolve personal injury claims.
Modified Comparative Negligence: 50% bar
In this form of modified comparative negligence, an at-fault party can collect at least some compensation as long as their percentage of fault for the accident was less than 50%. At 50% or more, they collect nothing.
The states with a “50% bar” to recovery are Idaho, Utah, Georgia, Arkansas, West Virginia, Maine, South Carolina, North Dakota, Nebraska, Tennessee, Colorado, and Kansas.
Modified Comparative Negligence: 51% bar
In other states, an at-fault party can collect compensation as long as their percentage of fault is less than 51%. This difference sometimes matters when a court decides that each party is 50% at fault. Under a 50% bar, neither party pays damages.
Under a 50% bar, each party pays half of the other party’s damages. In this scenario, the party with the least amount of damages will end up with a net loss.
These “51% bar” states are Wisconsin, Nevada, Vermont, Illinois, Ohio, Iowa, Massachusetts, New Hampshire, Pennsylvania, Montana, Delaware, Oregon, New Jersey, Indiana, Oklahoma, Michigan, Minnesota, Texas, Hawaii, Connecticut, and Wyoming.
Wrongful Death Claims
If someone dies in a California accident caused by someone else, the victim’s close relatives can file a wrongful death claim. No matter which relative files the lawsuit, a court will split compensation among eligible relatives.
Nevertheless, if the deceased victim was partly at fault, the court would handle the claim just as if the victim was still alive. It will assign the victim a percentage of fault and assess compensation accordingly. If the deceased victim owes the other party compensation, it will come out of the victim’s probate estate.
Comparative Fault at the Negotiating Table
Most negligence claims settle at the negotiating table, not in court. What do you do at the negotiating table when there is no court to assign a percentage of fault to either party? Typically, the parties try to forecast what percentage of fault a curt would assign. Nevertheless, the persuasiveness and persistence of your lawyer are even more important during settlement than they are in court.
Seek an Experienced Personal Injury Lawyer ASAP
Determining contributory fault is a particularly tricky process. What’s the difference between being 30% at fault and being 40% at fault? It could mean a million dollars or even more.
How do you derive this critical difference from the facts of your case? Much of it depends on your lawyer’s legal ability and persuasive skills. Seek a free initial consultation with our experienced personal injury lawyers at Petrov Law Firm, call us at (619) 344-0360.