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

Most personal injury cases hinge on the question: Who was at fault for the accident? And in many instances, the answer isn't very clear-cut. What if you're the one making an injury claim, but the facts show that you might share some level of responsibility for the accident? In this article, we'll discuss how that might affect your case, and the amount of compensation you can receive.

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.

But fault is just as big an issue if you're looking for a settlement in an injury-related insurance claim, and you don't want to take the matter to court. The insurance adjuster is likely going to play hardball during settlement negotiations unless it's clear that their insured is solely responsible for your injuries.

What If Multiple Parties Are at Fault for an Accident?

Sometimes more than one person is at fault when an incident leads to injuries. You might have been negligent, and someone else might also have been negligent, making both of you responsible. This is often called “shared fault.”

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

Contributory Negligence 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, just before a car accident. The case goes to trial, and the jury finds that both drivers were negligent, and each contributed to the accident. The jury would then 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. States with these limits are called "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

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 as we mentioned earlier, an insurance adjuster will have the state's shared blame rules in mind 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 Shared Negligence Rule?

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

What's Next?

Understanding how shared fault rules work is just one piece of the personal injury claim puzzle. After any kind of accident where someone else might be to blame, you might what to:

• get more details about fault and liability in personal injury cases
• figure out how much you should ask for to settle your injury claim
• learn about the personal injury laws in your state, and
• understand how to find, hire, and work with a personal injury lawyer.