When an auto accident takes place, the fault does not always lie with one person or the other. In such a case, it would not be fair for either party to bear the entire financial obligation. This is why many states take a comparative negligence approach to the allocation of responsibility. Over two thirds of U.S. states employ this rule to resolve auto accident injury claims. There are a few states that follow a different system called contributory negligence. The common thread is allocation of fault. Percentage of fault is determined based on the facts surrounding the auto accident and negotiations between the insurance company and the claimants.
Comparative negligence is considered a partial defense. Under the comparative negligence system, adopted by most states, a defendant can raise this defense by saying the plaintiff was partially at fault for the auto accident. If the defendant can prove this claim, the comparative negligence system allocates fault between the parties.
The approach to comparative negligence varies from one state to the next. Most states have adopted some form of either pure or modified comparative negligence. Some states have their own unique rules.
Pure comparative negligence, also called 100 percent comparative negligence, exists where the claimant can collect for damages up to the amount of their damages minus the percentage of the damage that was their fault. For example, if the damage was $10,000 and the claimant was 20 percent at fault, the claimant would receive $10,000-$2,000 or $8,000.
The more widely used modified comparative negligence system allows the claimant to collect from the other party’s insurance carrier only if he or she is determined to be at fault below a certain percentage. This is usually a threshold amount of about 49 or 50 percent at fault.
There are a few states that use the contributory negligence system. This system is followed in Alabama, Maryland, North Carolina, Virginia, and Washington D.C. The doctrine of contributory negligence bars an accident victim from recovering any compensation if the defendant can prove that the plaintiff acted negligently and contributed to the accident in any way. The contributory negligence doctrine has been criticized as leading to harsh results because it denies compensation to accident victims even if their degree of fault is slight.
Whether in a comparative or contributory negligence jurisdiction, a defendant must show that the plaintiff's negligence contributed to the auto accident. If the plaintiff's behavior made his or her injuries worse, but didn't actually cause the accident, the defendant cannot use this defense.
Some examples of plaintiff conduct that might be considered negligent include: speeding while driving another car involved in the accident, making sudden or unexpected movements as a pedestrian (depending on the circumstances), riding with a driver that plaintiff knows is drunk, reckless, or sleepy. Interfering with a driver’s operation of a car is a valid negligence claim. Another is riding in a car that the plaintiff knows is defective, for example, a car that has no lights or a flat tire.