Whenever a party is held liable in a personal injury case, the liability will most likely be based on a finding that the at-fault party was negligent, that is, that he or she violated an applicable standard of care and that violation caused damages to the injured party. But negligence alone is not the end of the story. Once a party has been found to be negligent, that party’s attorneys will try to argue that the victims of that negligence were also negligent. If the attorneys successfully make that argument, their clients may not have to pay any damages at all or at least a reduced amount.
It’s All About Comparative Fault
In other words, the court and the jury (or the insurance adjusters if there’s no active litigation) will be comparing your level of fault as the victim to that of the person or persons who injured you. The various states look at this issue of comparative fault in several diverse ways. The theory under which the negligence of the parties will be compared and its impact upon how much, if any, damages you will recover can be substantial.
Contributory negligence is a legal term in personal injury law for the victim’s failure to exercise reasonable care for his or her own safety. Under this doctrine, if a plaintiff is shown to have been negligent at all, the plaintiff will recover nothing. There is no apportioning of the liability. If there is any negligence on the part of the plaintiff, there will be no recovery. In other words, if the plaintiff is even one percent at fault, the plaintiff may not recover.
Contributory negligence is an affirmative defense against a claim of negligence. Currently, only four states use the doctrine of contributory negligence: Alabama, Maryland, North Carolina, and Virginia, as well as the District of Columbia. Under the theory of contributory negligence as applied in these states, if the victim is even one percent responsible for the accident, that victim is entirely barred from receiving any recovery at all. It is a harsh, old-style rule that, as noted, is not widely followed.
Comparative negligence focuses directly on the respective shares of blame between the defendant and the plaintiff in a negligence case. It assigns percentage shares of blame and creates an award proportionate to the fault of each party. In making the award, the recovery will essentially be the proven damages less the defendant’s share of the fault. Most states use comparative negligence rather than contributory negligence. However, there are two forms of comparative negligence, and the one your state uses controls the extent to which you can be negligent and still make a recovery.
Pure Comparative Negligence
Under pure comparative negligence, a plaintiff can recover some damages even if that plaintiff is shown to have been 99% negligent. In such a case, the plaintiff would still receive 1% of the provable damages in the case. There are currently thirteen states which use the affirmative defense of pure comparative negligence.
Modified Comparative Negligence
In a modified comparative negligence state, generally, if a plaintiff is fifty percent, or in some states fifty-one percent, negligent, the plaintiff will no longer be able to recover at all. Under that bright-line threshold, plaintiffs will receive the percentage of the recovery to which they are entitled less the percentage of liability. Over that threshold, they will not recover at all. Thus, for example, a plaintiff who is 48% negligent in a modified comparative negligence state and has proven damages of $100,000 would be entitled to receive $52,0000. On the other hand, if the plaintiff were 52% negligent, the plaintiff would recover nothing because the negligence is over the maximum allowable in modified comparative negligence.
Whatever System Your State Uses, the Insurance Company May Try to Use it Against You
No matter which rule your state follows, your recovery will be limited, in one way or another, by the extent to which you are also at fault in the case. Depending on which theory your state uses, your fault can be a powerful tool against your recovery in the hands of an insurance company. Certain types of facts will make it easy for an insurance company to establish that you were negligent (though not perhaps the percentage of the impact of that negligence). Among these are:
- The injured plaintiff was acting recklessly and failing to pay attention to driving
- The injured plaintiff was under the influence or exhausted
- The injured plaintiff may have been issued a citation in the accident
However, your potential negligence does not have to be this clearly visible. Indeed, most insurance company attorneys will almost always allege contributory negligence when responding to your complaint. There may be no credible evidence to support the allegation. Or, the insurance company may be able to hook on to some of your otherwise innocent testimony to allege that you were, in fact, contributorily negligent.
How badly such an allegation can hurt you depends on your state. If you are in the District of Columbia or one of the four states following the contributory negligence rule, proof of any negligence on your part will bar your recovery altogether. If you are in a comparative state of either type, the allegation, even if proven, won’t necessarily bar your recovery in its entirety.
Call Us Today to Speak with a Personal Injury Attorney in Wilmington
If you are embroiled in a dispute with an insurance company about a personal injury claim and the other side is claiming contributory negligence, it is critical that you contact experienced and knowledgeable personal injury counsel as soon as possible. North Carolina is one of the four states with pure contributory negligence, and your attorney will be able to help you avoid making statements against your own interest that can be used to show that you were negligent. Fighting these claims is tough. Contact us or call 910-490-4247 for an initial consultation and case evaluation and let us fight for you.