Partially at Fault: Do I still have a claim?

Have you been in a recent accident? Is the other party claiming you were partially at fault for the accident? Depending on which state you live in, your fault may prevent you from recovering anything in your case. If you have had a car accident, slip and fall accident, or any other type of accident, talk to a Decatur AL auto accident attorney about your case before you do anything.

Contributory and Comparative Fault

Every state has their own system for determining fault. There are four basic fault systems including:

  • Pure Contributory Negligence
  • Modified Comparative Fault
  • Pure Comparative Fault
  • Slight/Gross Fault

Pure Contributory Fault

Contributory negligence means you, the plaintiff, contributed by your conduct or actions to the negligence of the other party. If you are found to have been at fault at all for the accident, theoretically even 1%, you are unable to recover anything in your accident. In almost every accident imaginable, someone could claim that the plaintiff partially caused their own injuries. For instance, a grocery store claiming that you should have seen the water in the floor if you were watching where you were going. Insurance companies in pure contributory negligence states often hang their hat on the 1% rule, and deny claims to unrepresented victims. Fortunately, in pure contributory negligence states like Alabama, Virginia and North Carolina, jurors often use common sense and find for the party less at fault for the accident. If you have been injured in any of the four pure contributory negligence states, or the District of Columbia, you should contact a personal injury attorney before doing anything in your case.

Modified Comparative Fault

Modified comparative negligence is the law in thirty-three states. In eleven of the states a party is responsible for damages in proportion to their own fault. If you are 50% or more at fault for an accident, you cannot recover anything at all in your case. If you are less than 50% at fault you can recover, but your recovery is reduced by your degree of fault.

In the other twenty-two states that use a modified comparative fault system, if you are over 51% at fault, you cannot recover at all. If less than 50%, you can recover, but your recovery is reduced by your degree of fault. Juries in modified comparative states often find it difficult if not impossible to determine who and what a party should recover. Imagine if you are an unrepresented car accident victim trying to deal with an insurance adjuster. The difference in 1% can determine if you recover at all.

Pure Comparative Fault

Pure comparative fault is the law in a majority of the most populated states, including Florida, California and New York. Twelve states have adopted the pure comparative model. Pure comparative fault reduces the amount of damages you can recover based on your percent of fault. Even a party who is 99% at fault can recover for their damages. Your recovery is reduced by your percent of fault. Many argue pure comparative fault rewards all people who cause accidents. Like pure contributory negligence, anyone can argue that they were not 100% at fault for an accident. A grocery shopper who sees a hole in the floor in a grocery store and walks into it can argue the store is partially responsible. If you have a lot of accidents or are a bad driver, you might need to live in a pure comparative fault state.

Slight or Gross Comparative Fault

Slight or gross comparative fault is only recognized in one state, South Dakota. It attempts to compromise between comparative and contributory fault by trying to determine if a party was gross or slightly negligent. If more than slightly negligent, you cannot recover at all. Your guess is as good as mine on how to tell the difference.

Why to Talk to an Attorney After an Accident

If you have been injured in an accident, what state you live in will determine if and how much you can recover. Unfortunately, you cannot be dragged into another state to have a better case. The difference in just 1% of fault can make all the difference in your case. Although juries don’t always go by the law, you don’t want to lose your case by saying something that gives the adjuster reason to deny your case. Make sure you talk to a personal injury attorney before you talk to the defendant’s insurance adjuster, it could make the difference between a good recovery and no recovery at all.


Thanks to our friend and contributor from Ferguson & Ferguson Attorneys at Law for their insight into personal injury practice.

Posted on November 11, 2016 @ 5:07 pm

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