What is Comparative Fault?
Comparative fault is a legal term for allocating the percentage of fault between parties who share responsibility for an accident. It is most commonly applied in car accidents but can come into play in other types of personal injury, such as slip and fall cases, as well.
If you have been injured in an accident, comparative fault may have a very real impact because it impacts the amount of compensation you may receive. Most states follow a comparative fault model, but the exact laws in your state will affect how and when it will apply. A small handful of states instead follow a contributory fault, which sounds similar but leads to very different results, so it is important to speak with a lawyer in your state to understand your rights.
How comparative fault works
When comparative fault applies, each party is responsible for paying their share of the other party’s damages. For example, if the plaintiff in a car accident was going slightly over the speed limit and determined to be 10% at fault, while the defendant failed to yield and was determined to be 90% at fault, the defendant will need to pay 90% of the plaintiff’s damages.
In a trial, the jury is asked to determine the total amount of damages sustained and the percentage of fault each party bears. These values are used to calculate the proportionate share that each party must pay. In the case of an insurance settlement, the determination may be made by an insurance adjuster and impacted by negotiations with the plaintiff’s attorney.
Types of comparative fault
There are two types of comparative fault, as well as a distant cousin known as contributory negligence. Each state determines which type to follow and that decision can have a drastic effect on your recovery for an accident.
Contributory negligence is the predecessor law that has been replaced by comparative fault in most states but is still in effect in four states and the District of Columbia. Under contributory negligence, a party who is at all at fault, even only 1%, may not collect damages. Even if the defendant was 99% at fault, that 1% of the fault will completely bar the plaintiff from financial recovery.
Comparative fault is much more forgiving to those who are somewhat responsible for their injuries and can be divided into “pure” and “modified” varieties.
In the thirteen pure comparative fault states, an injured person may collect damages no matter how much of the fault they bear. For example, in New York, if you are seriously injured in an accident for which you were 99% at fault, you may be permitted to recover 1% of your damages from the other involved party.
More than 30 states have adopted modified comparative fault. In these states, the injured party may collect damages if they are no more than 50% or 51% at fault (depending on which threshold that state has adopted). In any of these states, if you are injured but found to bear 52% of the fault, you would not be permitted to recover compensation.
Comparative fault and insurance claims
Usually, after a car accident, the injured party is dealing with “liability” insurance—they may recover from the other driver’s insurance company. If the other driver was only 60% at fault, then the injured party may only collect 60% of his or her damages from the other party’s insurance company.
Roughly a dozen states follow some iteration of no-fault insurance framework for auto accidents. In a no-fault state, whether there is a reduction in insurance recovery will depend on whether the injuries are substantial enough to bypass a no-fault claim and file a lawsuit against the other driver. For example, if a driver is injured in a New York car accident, suffers only minor injuries, and is 10% at fault, he will be limited to recovering only economic damages like medical bills from his insurance policy, no matter who was at fault though he will receive 100% compensation.
But if the injuries were substantial, he may be permitted to file a lawsuit against the other driver and recover both economic and non-economic damages (like pain and suffering) from the other driver’s insurance company though the recovery will be reduced by his 10% of the fault.
Speak with an attorney to discuss your rights
If you have been injured in an accident and might be partly responsible, you may still be permitted to file a personal injury lawsuit, but your state will determine how comparative fault will affect your compensation. Speak with a car accident attorney in New York at Douglas & London to discuss your case and legal options. Consultations are free and confidential.