The backbone of any personal injury case is the concept of negligence. In order to prove that your injury was the fault of another party, you and your lawyer will need to prove that the party in question was negligent.
Negligence can be broken down into four components: Duty, Breach of Duty, Damages, and Causation. Meaning: Did the other party owe you a certain duty of care? Did they breach that duty? Did damages occur? And finally, did their breach of duty cause those damages?
Even if your personal injury lawyer is able to prove that another party was at-fault, the amount of compensation you are awarded will depend on a few things, one of which is the exact negligence laws in your state.
Types of Negligence in a Personal Injury Case
The two main types of negligence used are called contributory and comparative negligence. Comparative negligence also includes two distinct types, and there is one state that uses a unique law. Keep reading to learn more.
Contributory Negligence
Contributory negligence means that if you are found to have contributed in any way to your accident – even if you hold just 1% fault – you will not be able to recover compensation. This is clearly a very strict rule that some would consider to be unfair, which is why only four states use it.
Comparative Negligence
Comparative negligence is the more commonly used type of negligence. This law allows the victim to recover some compensation even if they were partly at fault for their accident.
Pure Comparative Negligence
Under pure comparative negligence law, the amount of compensation offered to the victim is in relation to what percentage of fault they are awarded. So if an injury victim is found to be 20% at fault for their accident, they will receive 20% fewer damages than the total amount determined.
Modified Comparative Negligence
Modified comparative negligence allows compensation to be awarded to at-fault injury victims as well, but only to an extent. States that use this law set a cap of either 50% or 51%, so that victims found to be equally at fault or the majority at-fault party cannot recover compensation.
Negligence Laws Per State
Check the lists below to see which type of negligence laws your state uses.
States that use contributory negligence:
- Alabama
- North Carolina
- Maryland
- Virginia
States that use pure comparative negligence:
- Alaska
- Arizona
- California
- Florida
- Kentucky
- Louisiana
- Mississippi
- Missouri
- New Mexico
- New York
- Rhode Island
- Washington
States that use modified comparative negligence:
- Arkansas
- Colorado
- Connecticut
- Delaware
- Georgia
- Hawaii
- Idaho
- Illinois
- Indiana
- Iowa
- Kansas
- Maine
- Massachusetts
- Michigan
- Minnesota
- Montana
- Nebraska
- Nevada
- New Hampshire
- New Jersey
- North Dakota
- Ohio
- Oklahoma
- Oregon
- Pennsylvania
- South Carolina
- Tennessee
- Texas
- Utah
- Vermont
- West Virginia
- Wisconsin
- Wyoming
The final state, South Dakota, uses slight/gross comparative negligence. This law falls somewhere in between the options above, and allows damages to be awarded to the victim if their fault was “slight” and the other party’s was “gross.” This wording is fairly arbiturary, but past cases in South Dakota have shown that fault above 30% counts as more than slight.
How is the Fault Percentage Calculated?
There is no exact way to calculate each party’s contribution towards the accident. Each case is different, and various actions that can occur before or during an accident do not have numerical or percentage values assigned.
Fault percentage is determined by lawyers and insurance companies during a personal injury settlement, or by a jury or judge if the case goes to trial. The numbers are estimates based on the information and evidence presented during the case. There are also other laws that affect compensation, according to the personal injury lawyers at Mickelsen Dalton in Charleston. Depending on if your state is a fault-based or a no-fault state, the types of compensation that can be recovered will differ.
For more information on negligence laws, contact your local personal injury lawyer.