Republished with Permission © 2011 Nolo.
Recovery may be limited when an accident victim negligently contributes to the cause of the accident. [Each state's laws differ significantly with respect to how comparative fault works. Oregon car accident law provides that if the victim of the car accident is more than 50% at fault, the plaintiff cannot recover at all.]
Determining who is legally responsible (that is, "at fault") for a car accident can be a difficult process. The person bringing a lawsuit or making an insurance claim for damages (the plaintiff) must first prove that the other person (the defendant) was negligent. But even if the plaintiff can do this, the defendant can still avoid partial or full liability by establishing a defense to the accident. [In all Oregon car accident cases, understanding that the person you're suing has insurance to cover the very situation that you're suing over is an important first step to understanding the car accident claim process. Many of my best clients express the concern that they do not want to be viewed as 'lawsuit happy.' For more information on this topic, click here.]
The systems of comparative and contributory negligence in car accidents are designed to deal with situations in which both parties have contributed to the accident -- or, in legalese, where both parties have been "negligent." For example, say Dan is driving at night and hits Ann, a pedestrian, when Ann suddenly and unexpectedly darts into the intersection. In this scenario the question of who is at fault is not clear-cut, as both Dan and Ann may have contributed to the accident.
How liability is treated when both parties have contributed to the car accident depends, in large part, on where you live. A few states follow a contributory negligence system, but most follow a comparative negligence system. Here's a primer on these two defenses and how they work.
Comparative Negligence: A "Partial" Defense [The Majority Approach]
The comparative negligence system allocates fault between the parties. Under the comparative negligence system, adopted by most states, a defendant can raise a partial defense, saying that the plaintiff was partially at fault for the accident too.
Here's an example of how this works. Say that Dan is making a left turn and hits Ann who is driving over the speed limit through the intersection. Ann sustains injuries and sues Dan for negligence. Under a comparative negligence system, Dan may be found to be 80% at fault for hitting someone while making a left turn and Ann may be found to be 20% at fault because she was speeding. If the total available compensation is $100,000, Ann will receive $80,000 instead of the total amount -- her amount is reduced according to her degree of fault (20%).
Different states have different comparative negligence rules. Comparative negligence rules differ from state to state. Many have adopted some form of the two rules described below. Some states have their own unique rules.
•· Pure comparative negligence. In "pure" comparative negligence regimes, accident victims can recover some compensation for their injuries even if they were quite negligent in their own driving or their degree of fault is higher than the defendant's degree of fault.
•· Modified comparative negligence. In "modified" comparative negligence states, an accident victim's recovery is limited if the victim's fault exceeds a certain degree. For example, in some states an accident victim can only recover damages if his or her fault is less than that of the defendant -- that is, the accident victim must be less than 50% responsible for the accident in order to recover. This is called the "equal to or greater than" rule. [This is the approach taken under Oregon law on car accident claims. It is absolutely critical for a Portland car accident lawyer and their client to understand this fundamental principle of Oregon law. If you could be held more than 50% liable, there is a chance you could get zero. This is an important concept to understand in evaluating a settlement offer or even whether to pursue a case at all.] Other state systems follow a "slight/gross" rule which requires the plaintiff's contributory negligence to be only slight in order for them to recover.
Contributory Negligence [Some Car Accident Cases Outside of Oregon]
If you are being sued in a car accident case and live in one of the few states that still use the contributory negligence system (Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.), you may be able to avoid liability entirely if you can show that the accident victim's own negligence contributed to the car accident. [My Oregon car accident claim clients need not understand this legal principle unless their car accident occurred outside of Oregon. This is an old relic of the common law that is on its way out in most states. Most personal injury lawyers and their clients don't miss it when it is gone.]
The doctrine of contributory negligence essentially bars an accident victim from recovering any compensation if the defendant can prove that the plaintiff acted negligently and contributed to the accident in any way. The contributory negligence doctrine leads to harsh results because it denies compensation to accident victims even if their degree of fault is slight. As a result, only a few states still follow this regime.
Establishing the Accident Victim's Negligence
In order to successfully establish contributory or comparative negligence, a defendant must prove that the plaintiff, through the plaintiff's own negligence, contributed to the accident to some degree. But what does it mean to say that the accident victim was negligent?
Every person using the road -- pedestrian, motorist, and car passenger -- is required to use reasonable care to protect his or her own safety as well as the safety of others. If a car accident victim fails to protect his or her own safety and the safety of others, he or she is being negligent and will be considered partly at fault for his or her own injuries. [This is the reasonable person standard again. Understanding that both the plaintiff and the defendant are expected to have acted reasonably and will be held accountable if they have not is a cornerstone of Oregon car accident case law.]
Examples of plaintiff conduct that might be considered "negligent" include:
•· speeding while driving another car involved in the accident
•· making sudden or unexpected movements as a pedestrian (depending on the circumstances)
•· riding with a driver that plaintiff knows is drunk, reckless, or sleepy
•· riding in a car that plaintiff knows is defective (for example, riding in a car that is without lights or has a flat tire),
•· interfering with the driver's operation of the car,
•· [taking to the road under extraordinary emotional or mental stress
•· driving in dangerously inclement weather,
•· failing to wear a seatbelt.
Again, anything that is generally unreasonable behavior can fall into this category. This judgment will be made by a jury of your peers. Jury pools differ slightly in different areas of the state. A jury in Portland is different than a jury in Lincoln City, Oregon or Redmond, Oregon or Newberg, Oregon.
Plaintiff's Negligence Must Contribute to the Accident
A defendant has to show that the plaintiff's negligence contributed to the accident. If the plaintiff's behavior made his or her injuries worse, but didn't actually cause the accident, the defendant is out of luck.
For example, if Dan raises the defense of contributory negligence against Ann, the pedestrian who unexpectedly darted into the road, he has to establish that her behavior -- darting into the road -- played a part in causing the accident and her injuries.
[Just like the car accident victim must prove that the driver's unreasonable conduct caused the accident, for a comparative fault defense to stick, the at-fault driver must similarly prove that the victim's own negligence at least partially caused the accident.]
Getting Help
Dealing with defenses and the allocation of fault in car accident cases can be complicated and may require the assistance of an attorney. If you decide to consult a lawyer, go straight to Nolo's Lawyer Directory.
If you decide to represent yourself in a car accident case, get How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).