What If Both Sides Are at Fault in a Personal Injury Case?

What happens if a claimant's own carelessness played a part in their injury?

By , J.D.

Most personal injury cases hinge on the question: Who was at fault for the accident or incident that caused the injury? And in many instances, the answer isn't very clear-cut. What if you share some level of responsibility for the accident? In this article, we'll discuss how that might affect your case.

What Is "Fault" in a Personal Injury Case?

In the language of the law, "fault" is a loaded word. It means that someone was responsible for causing harm—usually through carelessness that rises to the level of negligence—and must pay compensation for all injuries and other losses stemming from that harm. If a personal injury lawsuit goes to court, the result can be a civil jury award against the person who's found to be at fault (the defendant), often in the hundreds of thousands or even millions of dollars.

What If Multiple Parties Are at Fault?

Sometimes more than one person is at fault. You might have been negligent, and someone else might also have been negligent, making both of you responsible. It's called "shared fault."

So, what happens in a shared fault situation? The answer will be vital to your case.

Contributory vs. Comparative Negligence

In personal injury cases, shared fault situations fall under one of two legal rules: Comparative negligence or contributory negligence (also called comparative and contributory fault). Which rule is used and exactly how it's applied depends on which state you're in.

Contributory Negligence

Under contributory negligence rules, if you contribute to your own injury, you can't hold anyone else responsible for it. In a pure contributory negligence system, if you're even 1% at fault, you can't collect any compensation from the person who's 99% at fault. Even if you suffer hundreds of thousands of dollars in damages, if you're found to have been negligent—even a little bit—you get nothing.

This is a harsh, centuries-old rule, but it remains in place in a handful of states. (Check out the chart below to see which states still follow the contributory negligence rule.)

Comparative Negligence

Comparative negligence is different from contributory negligence. Comparative negligence rules consider how much each person is to blame (for causing the accident or incident that led to the claimant's injury). The first step is determining just how much of the fault belongs to each person.

For example, say one driver ran a red light and the other turned left too soon, right before a car accident. Both drivers were negligent, and each contributed to the accident. The factfinder in that case (the judge or jury) would have to determine how much fault each of them contributed to the crash.

For instance, perhaps the person who ran the red light was the one who was primarily responsible, while the other driver's negligence played a smaller (but still significant) part. The driver who ran the red light might be found to be 60% at fault, and the driver who turned illegally, 40% responsible.

In such cases, under a pure comparative fault system, each driver could collect damages equal to the percent of fault that belongs to the other driver. For instance, say the accident cost the left-turning driver $100,000 in damages. That driver could recover 60% or $60,000 from the red light runner. If the red light runner also had $100,000 in damages, they could recover 40% of that loss, or $40,000, from the driver who made the left turn.

Pure Comparative Fault vs. Modified Comparative Fault

Some states follow a "pure" comparative negligence rule like the scenario described above. Other states set a general cut-off point when it comes to just how much fault an injured person can have and still collect from someone else who was partly at fault for the accident. The states that set these limits are referred to as "modified comparative fault states" because they've changed the pure comparative fault rules.

In states that follow a "modified comparative negligence" rule, the limit is usually set at 50%. Under such a limit, an injured person can collect compensation from someone who shares responsibility (for the accident that led to their injuries) as long as the injured person was less than 50% to blame.

For example, in the accident scenario described above, the driver who ran the red light was 60% at fault and the left-turning driver was 40% at fault. So, no matter who suffered the greatest injuries, the driver who ran the red light couldn't collect any damages from the turning driver because the red light runner was more than 50% at fault.

Shared Blame in and Out of Court

So far we've talked about how shared fault rules come into play if your injury case winds up in court. Of course, most personal injury claims reach settlement well before trial, and many get resolved through the insurance process, without a lawsuit ever being filed in court. But an insurance adjuster will have the state's shared blame rules in mind when assessing the value of a claim, and at the settlement negotiation table.

If you live in a pure comparative negligence state, this might not matter much. But in a modified comparative negligence state (where fault percentages are crucial), and certainly, in the handful of contributory negligence states, your state's shared blame rules can have a big impact on the value of your injury-related insurance claim.

Which States Follow Which Negligence Rule?

The table below lists the shared blame rules in each state.

State

Rule

State

Rule

Alabama

Contributory negligence

Alaska

Pure comparative negligence

Arizona

Pure comparative negligence

Arkansas

Modified comparative negligence

California

Pure comparative negligence

Colorado

Modified comparative negligence

Connecticut

Modified comparative negligence

Delaware

Modified comparative negligence

District of Columbia

Contributory negligence

Florida

Pure comparative negligence

Georgia

Modified comparative negligence

Hawaii

Modified comparative negligence

Idaho

Modified comparative negligence

Illinois

Modified comparative negligence

Indiana

Modified comparative negligence

Iowa

Modified comparative negligence

Kansas

Modified comparative negligence

Kentucky

Pure comparative negligence

Louisiana

Pure comparative negligence

Maine

Modified comparative negligence

Maryland

Contributory negligence

Massachusetts

Modified comparative negligence

Michigan

Modified comparative negligence

Minnesota

Modified comparative negligence

Mississippi

Pure comparative negligence

Missouri

Pure comparative negligence

Montana

Modified comparative negligence

Nebraska

Modified comparative negligence

Nevada

Modified comparative negligence

New Hampshire

Modified comparative negligence

New Jersey

Modified comparative negligence

New Mexico

Pure comparative negligence

New York

Pure comparative negligence

North Carolina

Contributory negligence

North Dakota

Modified comparative negligence

Ohio

Modified comparative negligence

Oklahoma

Modified comparative negligence

Oregon

Modified comparative negligence

Pennsylvania

Modified comparative negligence

Rhode Island

Pure comparative negligence

South Carolina

Modified comparative negligence

South Dakota

Hybrid (Plaintiff's negligence must be only "slight")

Tennessee

Modified comparative negligence

Texas

Modified comparative negligence

Utah

Modified comparative negligence

Vermont

Modified comparative negligence

Virginia

Contributory negligence

Washington

Pure comparative negligence

West Virginia

Modified comparative negligence

Wisconsin

Modified comparative negligence

Wyoming

Modified comparative negligence

To learn more, see the articles in Alllaw's section on Fault and Liability in Personal Injury Cases.

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