What Happens When the Person Injured in an Accident Is Partially at Fault?

Accidents frequently happen through no fault of anyone other than the unfortunate victim — for instance, if they stumble over an untied shoelace and fall to the ground. Other accidents can occur because of the negligence or carelessness of a party other than the injured person. If a broken floor tile causes someone to be injured, for example, the negligence of the building owner who failed to correct the unsafe condition may be responsible for medical bills and other damages incurred by the injured party. It becomes more complicated when an accident may have partially been caused by the fault of the injured party.

Burden on injured parties to prove negligence

Recovering compensation for medical bills, lost wages, pain and suffering, and other damages incurred by a person injured in an accident requires proof of negligence on the part of the at-fault party. In order to prove that another party was negligent, you must present evidence showing a failure to exercise the standard of care expected of someone in similar circumstances.

For example, drivers must obey traffic laws, maintain control over their vehicles, and remain observant of road conditions and other users of the roadways when operating a motor vehicle in order to comply with the standard of care expected of them. If evidence proves that a motorist was texting on a cell phone and not looking at the road, a judge or jury may find that the driver was negligent and caused a collision.

The plaintiff, which is the party seeking damages for injuries suffered in an accident, has the burden of presenting evidence proving negligence on the part of the at-fault party by showing a deviation from the standard of care. A common defense raised in a negligence case is that negligence on the part of the plaintiff contributed to causing the accident or increasing the severity of the injuries.

Contributory negligence

If the evidence presented in a case demonstrated that a plaintiff was at least partially at fault, the laws at one time in the U.S. barred the person from being compensated. A plaintiff proven to be as little as 1% liable for causing an accident could not be awarded damages. The fact that the other party was 99% at fault did not matter.

The unfairness of contributory negligence eventually resulted in the vast majority of states doing away with it as a defense. Forty-six states now have some form of comparative negligence in order to take into account partial negligence on the part of a plaintiff without it acting as an outright bar to compensation.

Comparative negligence and modified comparative negligence

As an alternative to contributory negligence, some states adopted comparative negligence. Comparative negligence reduces the damages awarded by the degree to which an injured party may have been at fault. For example, the evidence in a case may prove that a driver was 90% at fault in failing to yield the right of way to a pedestrian who was 10% at fault for failing to use a crosswalk. If a judge or jury finds total damages to be $100,000, the amount actually awarded to the injured pedestrian would be $90,000.

Some states, such as Oregon, have adopted a modified comparative negligence method for awarding damages in personal injury cases involving fault on the part of the injured party. The damages awarded must be reduced by the plaintiff’s degree of fault as would occur under comparative negligence, but the fault on the part of the plaintiff must be equal to or less than the negligence of all parties against whom a claim for damages has been made.

Legal advice about personal injury claims

If you have been injured due to the fault of another party, the extent to which comparative and modified comparative negligence laws affect your right to recover damages should be discussed with an experienced personal injury attorney. It is essential to get advice about your rights from a knowledgeable attorney based upon the facts of your particular case under the most current state laws.

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