A long time ago, when a personal injury occurred, a court had to choose whether the defendant was liable. The circumstances of the case may have been complex, but the court could only say yes or no – there was no middle ground.
Nowadays, the law has matured to the point where it more accurately reflects real-world conditions. Contributory fault is a way of apportioning damages when more than one party is at fault.
Proving Negligence: The Prima Facie Case
In a personal injury case, the burden of proof is on you (the injury victim) to establish your claim. If you cannot prove your claim by a “preponderance of the evidence” (about a 51% likelihood), a court will dismiss your case, and the claim will go no further.
On the other hand, you achieve a “prima facie case” once you submit enough evidence to win without any further evidence from the defense. If this happens, the court will not dismiss the case, and the defense will present its own evidence to try to rebut your case.
One of the ways that the defense can reduce or eliminate its liability for damages is to assert that your injuries were at least partly your own fault. In other words, it can assert some form of contributory fault.
Apportioning Liability Among Two or More Parties
If the defendant believes that the victim was also at fault, they can assert a contributory fault defense, depending on which one applies in their state:
- Contributory negligence,
- Slight/gross comparative negligence,
- Pure comparative negligence, and
- Modified comparative negligence.
These contributory fault defenses are not always complete. Sometimes they simply reduce the defendant’s liability without completely eliminating it. In other cases, a successful defense will reduce the defendant’s liability to zero.
Under contributory negligence, you sacrifice all of your damages if you were even 1% at fault for the accident. Most jurists consider contributory negligence a primitive concept because it allows someone with 99% fault for an accident to completely escape liability.
Contributory negligence no longer exists in most of the United States. The only holdouts are Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.
Slight/Gross Comparative Negligence
South Dakota is the only state that applies this concept. Under the slight/gross comparative negligence system, you can only recover compensation if your own negligence was no more than “slight” and the defendant’s negligence was “gross” (extreme). This standard is only marginally more favorable to the plaintiff than the contributory negligence system discussed above.
Pure Comparative Negligence
Under the “pure” comparative negligence system, a court will assign each party a percentage of fault and distribute compensation in that exact proportion. If you were 10% at fault, for example, your damages award would be reduced by 10%.
Modified Comparative Negligence
Modified comparative negligence works like pure comparative negligence, except that there is a maximum degree of fault beyond which an at-fault party can recover no compensation. Some states set this bar at 50%, while others set it at 51%.
Modified Comparative Negligence in Texas
Texas has a modified comparative negligence standard with a 51% bar. That means that in Texas, accident victims that are at least 51% at fault receive nothing.
Settling Out of Court
In out-of-court settlement negotiations, the parties will try to predict what a court would do. They will then be willing to settle for an amount less than whatever they think a court would award. Even settling for a bit more might make sense, given the expense and risk of going to court.
A Dallas Personal Injury Lawyer Can Help
The defendant caused your car accident by running a red light. Nevertheless, you pulled into the intersection too early and didn’t hit the brakes as fast as you should have. Was the accident 10% your fault or 49% your fault? If you suffered $10,000 in losses, this could mean the difference between recovering $9,000 and recovering $5,100.
Negotiating your exact percentage of fault (if any) is one of the ways in which a lawyer can help you. A skilled Dallas injury attorney can double or even triple your recovery. While no ethical lawyer will offer you a guarantee, your odds are typically much better with a seasoned personal injury lawyer.