Negligence: It’s All About the Fault
Not all personal injury cases merit a lawsuit. In some instances, even cases involving serious injuries may not be worth filing in court, depending upon who is at fault and to what degree.
All states have their own rules when determining fault and compensation in negligence cases, and there are generally four doctrines that courts use when making damage awards:
- Pure contributory negligence. In pure contributory negligence states (Alabama, the District of Columbia, Maryland, North Carolina, and Virginia), if a plaintiff is found slightly responsible for his injury (even one percent or less), he will not be allowed to recover any damages from the defendant.
- Pure comparative negligence. In pure comparative negligence states (Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington state), even if the plaintiff is found at fault to some degree, he is still allowed to recover damages, minus his degree of fault.
- Modified comparative fault. In the states that follow modified comparative fault, or the 50 percent rule (Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, South Carolina, Tennessee, Utah, and West Virginia), a damaged party cannot recover if he is 50 percent or more at fault for an injury, and although he can recover if 49 percent or less at fault, the amount will be reduced by his degree of fault.
- 51 percent rule. The states that follow the 51 percent rule (Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Vermont, Wisconsin, and Wyoming) do not allow a damaged party to recover anything if they are 51 percent or more at fault, but allow recovery (reduced by degree of fault) if they are 50 percent or less at fault.
Colorado has a modified comparative fault rule, which allows a victim to pursue compensation for an injury caused by someone else’s negligence, even if the victim was partially at fault, as long as his degree of fault does not exceed 50 percent. For example, if the total damages equal $10,000 but the plaintiff is deemed to be 10 percent at fault for his injuries, he will only receive 90 percent of the damages, or $9,000 instead of $10,000. Claimants who are proven to be more to blame for their injuries than the defendant will not be entitled to seek damages. This is known as a defense verdict.
In modified comparative fault states like Colorado, an accident victim should consider retaining legal counsel for one very good reason: an experienced personal injury attorney might be able to make a convincing argument that will succeed in reducing his client’s perceived degree of fault, and in the process raise his potential recovery.
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