Suppose you run a stop sign and hit a driver who was speeding and driving with his lights off at night? Even though the other driver was speeding and driving with his lights off, the accident would likely be ruled partially your fault because you ran the stop sign.
If you suffered if you were seriously injured and your car was totaled, how much, if anything, you would be entitled to recover from the other driver or his insurance company would depend largely on where the accident and whether that state is a contributory negligence state or a comparative negligence state.
The contributory negligence doctrine is an extremely harsh doctrine from a plaintiff’s point of view – essentially, it provides that if you sue a driver who was 99 percent at fault for an accident, you will lose the lawsuit and recover nothing if you were even one percent at fault for the accident. Some insurance companies covering defendants in contributory negligence states will pounce on any crumb of evidence that might suggest that the plaintiff shared fault for the accident.
Currently Alabama, the District of Columbia, Maryland, North Carolina and Virginia are the only states that still apply the contributory negligence doctrine. South Dakota is close – a plaintiff will be denied recovery if his negligence was any more than “slight”.
Pure Comparative Negligence
The pure comparative negligence doctrine is at the opposite end of the legal spectrum from contributory negligence. In a pure comparative negligence state, you are entitled to at least a small recovery even if the accident was mostly your fault. The court will assign a percentage of fault to every motorist involved in a car wreck, and reduce each motorist’s recovery in an amount that is exactly proportionate to his percentage of fault.
To apply an extreme example, suppose you were in a two-car injury accident that caused you $100,000 in damages. If the court rules that you were 99 percent at fault for the accident, your damages will be reduced by 99 percent and you will be entitled to $1,000 from the other driver. You will also have to pay 99 percent of the other driver’s damages.
Currently about a dozen states, including California and New York, apply the pure comparative negligence doctrine
Modified Comparative Negligence
Modified comparative negligence is a relatively recent modification of the pure comparative negligence doctrine. Although the court will apportion fault among the parties and deduct proportionately from each party’s damages in the same manner as a court in a pure comparative negligence state, a court in a modified comparative negligence state will apply a cutoff percentage, beyond which a motorist will no longer be eligible for any damages at all.
In some states, such as Texas, the cutoff is 51 percent – a motorist who is more than halfway responsible for the accident will receive no damages, no matter how great his losses. Other states apply a 50 percent cutoff. About 33 states apply some form of modified comparative negligence doctrine.
How does the foregoing reasoning apply when a defendant intentionally causes an accident? Different courts and different states apply varying approaches. One of the most common approaches is to rule that the defendant’s intentional act constituted the “supervening cause” of the accident, effectively wiping away the plaintiff’s negligence. This might apply if, for example, the defendant became angry at the plaintiff for driving with his lights off and responded by intentionally ramming his car in a fit of “road rage”.
A skilled personal injury attorney is likely to be able to minimize the extent to which a court assigns you liability for an accident – perhaps increasing your damages award by an amount far greater than the amount of his legal fees.