Comparative Fault in Personal Injury

Comparative Fault in Personal Injury

In a personal injury lawsuit, the plaintiff will be seeking damages as they were injured, for example, because of the defendant’s negligence. In some cases, the plaintiff did nothing wrong and the injury can be totally blamed on the defendant, but what happens if the plaintiff can also receive a portion of the blame? This is called comparative fault law and can be distinguished from contributory negligence.

Comparative fault can allow for a judge to divide the responsibility for the cause of injury. This can occur if the plaintiff was negligent, as well as the defendant. The defendant has the burden to prove that the plaintiff was negligent and said negligence was substantial when considering the harm suffered by the plaintiff. If the judge or jury accepts such an argument, the damages received by the plaintiff would be reduced by the percentage of responsibility they share. In the case where the defendant was solely negligent, the percentage for fault would be 100 percent. However, let’s say the plaintiff’s negligence could be attributed to a percentage for causing the harm, the 100 percent would be reduced by the latter percentage.

Recovering Damages

On the other hand, contributory negligence would mean that even if the plaintiff had been responsible for just one percent of the harm, the plaintiff would not be able to recover any damages from the defendant. A similar concept exists even in comparative negligence, as modified comparative negligence could require the plaintiff to not receive any damages if they were responsible for either 50 or 51 percent of the harm. In the case of California, the state operates under pure comparative negligence, which allows the plaintiff to recover damages, with their own fault reduced as a percentage.

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