Whether you are settling your slip and fall injury case directly with an insurance company or you are taking your court to case, you will likely come across the term, "comparative negligence." Comparative negligence comes from the idea that it is possible for both you, the plaintiff, and the defendant to bear some responsibility for an injury. It is important that you fully understand comparative negligence if you could be responsible for any part of your injuries. Below are the five basic things you should know about comparative negligence.
Comparative Negligence Is a Type of Contributory Negligence
Contributory negligence refers to when a plaintiff is at least partially responsible for their injuries. For example, if you were intoxicated in a business and slipped, both you and the business owner may be responsible for your injury. However, contributory negligence states that if you are found to be partially responsible for your injuries, you cannot receive any compensation from the defendant. Comparative negligence is a sub-sect of contributory negligence that allows you to seek compensation for the part of your injuries that the defendant is responsible for even if you are found to be partially responsible. Alabama, the District of Columbia, Maryland, North Carolina and Virginia all follow contributory negligence law.
There Are Two Main Types of Comparative Negligence
For the states that follow comparative negligence law, there are two main types of comparative negligence. The first is called pure comparative negligence. This allows you to recover the direct portion that the defendant is found to be at fault. For example, if they are 90% at fault and you are 10% at fault, you will recover 90% of your damages.
Modified comparative negligence is similar to pure comparative negligence, except it only allows you to collect if the defendant has greater fault than you. For example, if you are found to be 60% at fault for your injuries, you will collect nothing.
Comparative Negligence Is Not Part of Joint Liability
Comparative negligence should not be confused with joint liability. Joint liability occurs when there is more than one party other than yourself who may be responsible for your injuries. For example, a business owner and a floor manufacturer may both share liability for your injuries. They will then split the amount they pay in your settlement based on their percentage of liability.
Who Bears the Burden of Proof Will Depend On Your State
In most states, it is up to the defendant to prove that you are partially responsible for your injuries. However, in some states, it is up to you to prove that you are not responsible for your injuries. Whether the burden of proof falls on you or the defendant will greatly impact how you and your lawyer choose to approach your case. For example, in a comparative negligence state where the burden of proof lies on you, your lawyer may be more likely to decide it is better for you to accept responsibility and take a lower settlement rather than fight for a full settlement.
After Comparative Negligence Is Divided, the Plaintiff May Be Responsible for Injuries to the Defendant
In some cases, both you and the defendant have suffered injuries. If you are found to be at fault for the situation, you may be responsible for a portion of the defendant's injuries. If the defendant has suffered more extreme injuries than you, you may end up owing them greater compensation even if you are found to be less at fault.
Understanding comparative negligence is an important part of getting the settlement you deserve. If you are suffering from an injury caused by negligence, you should consult with an attorney to better understand the comparative negligence laws in your state. Click here for more information.