If you’ve been in a car accident and it’s not clear who was at fault, one of the first steps to understanding the legal process you’ll face is to know your state’s comparative fault laws. When it’s possible that more than one person is responsible for a car accident, insurers and courts will take different approaches to determining fault, assessing liability and ultimately shaping the amount of any recovery you could receive.
Comparative negligence is a legal principle used by most states under which each person responsible for causing harm in a tort case is assigned a percentage of fault, which then determines their degree of responsibility for the total damages. While many states follow this principle in its purest form, most states use a modified approach, and a handful of contributory negligence states prevent a car accident victim from recovering their losses if they shared any responsibility in causing the accident.
So what does this all mean for you? Knowing which approach your state uses to determine fault will shape the strategies and outcomes that you’ll see in the car accident claim process. Here’s a deeper look at how it all works.
[Read: In a Car Accident? No Damage? Here Are 3 Things to Consider]
How Does Negligence Apply to Car Accidents?
Knowing how fault gets apportioned after a car accident starts with a good understanding of how a negligence claim works. In short, negligence refers to situations when someone fails to act in a reasonable manner and causes harm to others–like when one driver fails to yield to the right-of-way of another motorist, resulting in an accident. For the car accident victim to succeed on a negligence claim, they would need to show that the unyielding driver:
1. Had a duty to behave reasonably by obeying traffic laws while driving.
2. Was in breach of that duty by failing to yield.
3. Was the actual and proximate cause of the resulting damages.
It’s under the third element of causation where the question of comparative fault comes into focus, as insurers and courts investigate the causal factors of a crash. In doing so, they will determine the actual sequential causes leading up to an accident and which of those were proximate, or foreseeable, causes that should be accompanied by legal liability.
Causation and Comparative Negligence Example
To illustrate how negligence works, and the distinction between an actual cause and a foreseeable cause, consider the following hypothetical:
Example: Driver A, after negligently taking their eyes off the road to send a text message, slams on their brakes, barely avoiding a deer that was standing in the roadway. The deer, spooked, quickly leaps over the divider, crossing several lanes of traffic before causing an accident involving Driver B.
In this scenario, Driver A’s negligence was an actual cause of the accident because it triggered the deer’s movements. However, how foreseeable was it that this negligent act would have caused the deer to end up in the lane where the accident took place? Could there have been other intervening causal factors, like:
— Negligence by Driver B who actually hit the deer.
— Negligence by other motorists driving near the deer.
— A lightning strike nearby, which also startled the deer.
Exploring all the possible causal factors of an accident, and their foreseeability, is where questions of comparative liability come into play.
[READ: How to Report a Traffic Accident to the Police]
What Are the Different Types of Comparative Fault?
As lawyers, insurers and courts analyze the many different causal factors of an accident, they are ultimately guided by the laws of their state–more specifically, whether their state embraces the contributory vs. comparative negligence model of fault. Here’s a breakdown of these different approaches and how they might shape the legal process you’ll face when trying to recover your losses.
Contributory Negligence Definition
This is the strictest model of fault that’s used in a handful of states. Under this approach, a car accident victim is prohibited from recovering their damages if they’re found to have had any degree of fault–even 1%–in causing the accident.
In the example above, Driver A would face no liability in a contributory negligence jurisdiction by showing that Driver B was negligently speeding before hitting the deer, regardless of the percentage of fault that each may have had.
How could this affect a car accident claim? Expect the at-fault driver’s adjusters and attorneys to home in on every action and inaction of the car accident victim to identify potential negligence very early in the claims or litigation processes.
Pure Comparative Negligence Definition
Under this approach, also referred to as pure comparative fault, a percentage is given to all of the drivers sharing fault in the accident. That percentage is then applied to the damages at issue in a case.
In the example above, if Driver A were found to be 5% liable for texting while driving, and Driver B to be 95% liable for speeding before the accident involving the deer, then Driver B could only recover 5% of their damages from Driver A.
How could this affect a car accident claim? The at-fault driver’s adjusters and attorneys will likely be looking to identify as many parties as possible that played a causal role in the accident as a way to diminish the percentage owed by the at-fault driver.
Modified Comparative Negligence Definition
Also referred to as partial comparative negligence or modified comparative fault, this is the model used by most states. Like pure comparative negligence, this approach assigns a fault percentage to everyone responsible for a car accident. However, like contributory negligence, it also places a bar on a car accident victim’s ability to recover, usually setting it around 50% or higher, depending on the state.
In other words, in a modified comparative fault jurisdiction, a car accident victim that is found to have been 50% or 51% responsible for an accident would be unable to recover their losses.
In the example above, if other drivers on the roadway were determined to be 49% responsible for Driver B’s accident involving the deer, but Driver B was found to be 51% liable, Driver B would not be able to recover their losses.
How could this affect a car accident claim? The at-fault driver’s adjusters and attorneys will try to emphasize the car accident victim’s conduct as more of a proximate cause of the accident to get to the 50-yard line of fault.
[Read: Recovering Lost Wages for a Personal Injury Claim]
How Do States Address Comparative Fault? State-by-state Overview
Your car accident claim will be shaped in a significant way by the comparative fault laws of your state and whether you’re in a pure or modified comparative negligence vs. contributory negligence jurisdiction. The state-by-state breakdown below provides the general approach of each state. To better understand how these laws could apply to the specific facts of a case, consider speaking with a car accident attorney in your state.
| Type of Comparative Fault Law | States |
| Contributory Negligence | Alabama, Maryland, North Carolina, Virginia, District of Columbia* |
| Pure Comparative Negligence | Alaska, Arizona, California, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, Washington |
| Modified Comparative Negligence (50% bar)** | Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Tennessee, Utah |
| Modified Comparative Negligence (51% bar)*** | Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, West Virginia, Wisconsin, Wyoming |
| Modified Comparative Negligence (other bar)**** | South Dakota |
*Washington D.C. does allow modified comparative negligence in certain car accident cases involving pedestrians or others who use sidewalk areas.
**In these states, a plaintiff is only able to recover damages if their percentage of responsibility is less than 50%.
***In these states, a plaintiff is only able to recover damages if their percentage of responsibility is 50% or less.
****In South Dakota, a plaintiff can recover through comparative negligence if their responsibility for the accident was “slight in comparison.”
Not Sure How Comparative Negligence Affects Your Claim?
The laws of your state–and the specific evidence in your case–will ultimately determine what you can recover after a car accident. A professional attorney can help you understand both so you can get the car accident compensation that you’re entitled to under the law.
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Comparative Negligence Laws and Car Accident Claims originally appeared on usnews.com
