Can you make a personal injury claim if you are partially at fault?
People who have experienced personal injuries often want to know if they can make a personal injury claim if they are partially at fault for their injury. The answer may depend upon the law of the state in which you were injured.
In order to win a personal injury trial the first thing you must prove is that the other party did something careless, negligent, or reckless. In the legal field this is often referred to as proving liability. If you cannot prove that the other person is liable for your injury there is no way to win at trial. If you can't win at trial, it is unlikely that an insurance company will make a settlement offer in your personal injury case.
But what happens if one or more other people or companies are partially at fault and you are partially at fault for the injury? Throughout the United States, each state has different ways to deal with how people are compensated that are partially at fault for their injuries.
Contributory Negligence
Some states have what are called "Contributory Negligence."
Under the contributory negligence rule, the plaintiff cannot recover any damages if they contributed in any way to the incident. In those states, if you are even 1% at fault, you get nothing. Alabama, Maryland, North Carolina, Virginia, and the District of Columbia all have contributory negligence.
Modified Comparative Negligence in Oregon
Most states use "modified comparative negligence" where you can recover for your injuries if you are less than 50% at fault for the event that injures you. Oregon uses this form of comparative negligence. In these cases the jury decides what percentage the injured person is at fault and then the judge reduces the total verdict by the percentage of fault by the plaintiff.
So, as an example if the jury verdict is $100,000 and the plaintiff is 40% at fault, the plaintiff gets $60,000 (60% - the percentage of fault of all defendants.) But, if the jury finds the plaintiff 60% at fault they get $0 because the percentage is over 50%.
Pure Comparative Negligence in Washington
A few states, including both California and Washington, have "pure comparative negligence." This means that you can still recover for losses even if you are more than 50% at fault, as long as all of the defendants are more than 1% at fault. Under the pure comparative negligence rule, the state allows the plaintiff to claim damages for the 1% they are not at fault even when they are 99% at fault.
The percentage that the injured party gets is reduced by the judge by the percentage of fault assessed to the plaintiff. So, if the verdict is $1,000,000 and the plaintiff is 60% at fault, they would still get $400,000. By contrast, if the same case was tried in Oregon, the injured party would get $0 because their percentage of fault exceeds 50%.
Nearly one-third of states use pure comparative negligence, including California, Florida, New York and Washington.
So, the answer to whether you can still make a viable personal injury claim is based on the state you are in. To see how our use of comparative negligence changed a case from a $0 settlement offer to obtaining all available insurance, read this blog post.
To find out more about your personal injury case, please contact us, or call (503) 227-1233 for a free consultation.