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Your personal injury lawyer will tell you that the settlement you can claim in a car accident (personal injury) case is limited by the percentage of your fault if you are found to be even .01% at fault.
It’s not easy for either you or your personal injury lawyer to prove that the other party was at fault in a car accident case. If and when you two do manage to do this, you are not entirely off of the hook. The defendant can have the settlement that he or she must pay you reduced substantially by claiming that you were partially at fault for the accident. This is entirely possible under the comparative and contributory negligence rules of personal injury law. It’s further complicated by the fact that because personal injury law is complex, it’s not always easy to establish that only one party was completely at fault.
Contributory and comparative defense rules usage largely depend on where and the circumstances under which the said car accident took place.
Comparative Negligence is a ‘partial defense’
You may have heard your personal injury lawyer tell you that comparative negligence is a partial defense. If this confused you tremendously, it simply means that the defendant has a tool at his or her disposal which can reduce his or her overall percentage of fault and hence the settlement amount that he or she must pay you by claiming and proving that you were partially at fault.
For example, if you were speeding in a school zone during effective hours and were hit by a driver making a right turn, you will not be able to recoup all of the settlement amount owed to you because you were partially at fault. If you were 25% at fault, then your final settlement amount would be reduced by 25%.
Comparative negligence rules differ by state
While different states have different forms of comparative negligence rules, there are some common themes in all of these rules:
● Pure comparative negligence – under this rule, you’ll be able to receive some compensation unless you were found to be completely at fault. This means that you’ll receive a settlement even if you were found to be 99.99% at fault. You’ll receive a settlement even if your share of the total fault was greater than that of the defendant.
● Modified comparative negligence – under this rule you can receive a settlement only if your percentage of the fault was less than that of the defendant. Under this rule, you won’t be eligible for a penny of settlement money if your share of the fault exceeded 50%.
Contributory negligence
Under this rule you won’t be eligible for a penny of settlement money if the defense can prove that you were even .01% at fault for the car accident. Most states don’t follow this rule anymore because it’s so harsh on the plaintiff who may be suffering from substantial injuries and losses despite his or her small percentage of fault.
Proving that the accident victim was negligent
Your personal injury lawyer in Barrie will tell you that you can be negligent even if you were the victim in the accident because of the concept of duty of care. You are expected to safeguard your own safety and the integrity of your vehicle along with that of others. You may be found to be negligent if you breach this. You’ll be at fault for your own injuries and loss in this instance. Some examples of the plaintiff being at fault include:
● Speeding
● Jaywalking or moving unexpectedly as a pedestrian
● Knowingly riding with a drunk, reckless, or overly sleepy driver
● Knowingly riding in a defective car
● Bugging the driver when he or she is driving
Your negligence as a plaintiff must be one of the causes of the accident. The defendant has no case if he or she can’t prove that your negligence was one of the causes of the accident.
You can fight back and get the settlement you want and need even if you were partially at fault. You just need to understand the rules mentioned above and hire a good personal injury lawyer to help you find legal loopholes around these rules.