If you’ve spent any time around children (or were once one yourself) you know that kids often excuse bad behavior by blaming the actions of another party.
Not unlike schoolyard disputes, when a personal injury lawsuit is filed, both parties attempt to explain that the injury was, at least to some extent, the fault of the other party. How much fault each party bears directly influences the amount of damages – such as medical expenses, loss of wages, and property damage – that the plaintiff can receive in the lawsuit.
“Fault” in the legal sense is determined by a negligence standard. “Negligence” is the failure to act as a reasonable ordinary person would have acted under the same or similar circumstances. If that failure contributes (expressed in percentages) to the cause of the injury, there is some “fault.
In the past, there were two basic types of negligence employed by different states: comparative negligence and contributory negligence.
Comparative Negligence vs Contributory Negligence
What is Contributory Negligence?
Contributory negligence is the failure of the injured party to act as a reasonable ordinary prudent person would have acted that contributed to an injury occurring. In states where contributory negligence is the standard followed, the jury considers the actions of both the plaintiff and the defendants in determining what brought about the injury. If the plaintiff was negligent at all and that negligence contributed to the injury occurring at all, then the plaintiff cannot recover any damages against the defendant.
What is Comparative Negligence?
Comparative negligence is a measure of negligence where the jury weighs the conduct of both the defendant and the plaintiff and pits them against each other to determine liability. Each party to the case is assigned a percentage of responsibility between 0-100%. The plaintiff is only allowed to recover that percentage of his damages for which the defendant is responsible. So if the jury finds them 50-50% at fault and they find that fair and just compensation for the injuries of the plaintiff is 60,000.00, then the plaintiff only gets half of the amount they award for fair compensation.
Modified Comparative Negligence vs Contributory Negligence vs Comparative Negligence
Modified comparative negligence is the middle ground between comparative negligence and contributory negligence. When a court uses a modified comparative negligence standard, they apportion the responsibility of all parties into percentages but then the plaintiff may only recover for the percentage caused by the defendants so long as the defendant’s percentage of responsibility is at least 50% or 51% in some jurisdictions.
Texas’s legal system uses modified comparative negligence where the Plaintiff must be 50% or less at fault to recover the percent for which the defendant is responsible. Under a modified comparative negligence standard it is more difficult for the plaintiff to recover than under a true comparative negligence standard but not as strict as the contributory negligence standard.
Ways to Prove Fault in a Personal Injury Case
To prevent being barred from recovering the full amount of damages you are owed, parties have several ways that help prove fault in a personal injury case. For example, here are a few steps your personal injury attorney can take to prove fault in your personal injury case:
- Interview witnesses to the injury
- Request copies of surveillance footage if applicable
- Seek medical attention and keep track of your medical bills, reports, diagnostic tests, and office visits
- Document any lost wages related to your accident
It’s also a good idea to ask a trial attorney to see whether your damages can be recovered under your own auto insurance policy, even if you are partially at fault. Some auto policies, for instance, have Personal Injury Protection (PIP) that covers a party up to a maximum amount.