Defendants don’t always wear black hats, and plaintiffs don’t always wear white hats. Likewise, liability is not always a black-and-white issue. In many cases, the plaintiff and the defendant share fault for the accident.
When this happens, contributory fault comes into play. Contributory fault is a legal principle for the distribution of compensation when more than one party is at fault for an accident. Each state has its own contributory fault law.
The Different Forms of Contributory Fault
Each state uses one of four different types of contributory fault–contributory negligence, pure comparative negligence, modified comparative negligence, and slight/gross negligence.
Additionally, modified comparative negligence comes in two different forms. Negligence is a legal term that means something like carelessness.
Contributory Negligence
Under the contributory negligence system, a plaintiff cannot recover a dime if they were even 1% at fault for the accident that injured them. This harsh rule, which makes personal injury lawsuits very difficult to win, applies in Alabama, the District of Columbia, Maryland, North Carolina, and Virginia.
Pure Comparative Negligence
Under the comparative negligence system, a court will assign a percentage of fault for the accident to each party—35% to the plaintiff, for example, and 65% to the defendant.
Under the pure comparative negligence system, each party will lose compensation in proportion to their own percentage of fault. For example, if the accident victim is 35% to blame, they would lose 35% of their damages.
There is no ‘cutoff percentage’. In other words, you can receive 1% of your damages even if the accident was 99% your fault. Kentucky is an example of a pure comparative negligence state.
Modified Comparative Negligence
Modified comparative negligence works like pure comparative negligence, with one important difference. Modified comparative negligence adds a cutoff percentage, or bar, beyond which a party can receive no compensation. Most states apply some form of modified comparative negligence.
Modified Comparative Negligence WIth a 50% Bar
Under a 50% bar, any percentage of fault from 1% to 49% simply cuts into the amount of your compensation. If you are 49% at fault, for example, you will lose 49% of your compensation. But if you were 50% at fault, you will lose 100% of your compensation. Oklahoma is an example of a state that applies a 50% bar.
Modified Comparative Negligence WIth a 51% Bar
A 51% bar works just like a 50% bar, except that you can still recover compensation if you were exactly 50% at fault. That’s where the real difference lies. In a 50% bar state, if the parties split fault 50%/50%, they just call it even and go home. Texas is one example of a state that applies this rule.
Slight/Gross Negligence
Among the 50 states and the District of Columbia, only South Dakota applies a “slight/gross negligence” scheme. It works just like the harsh contributory negligence scheme, except that a party can still recover compensation if their negligence was no more than “slight” and the at-fault party’s negligence was “gross.” “Gross negligence” is an extreme form of negligence.
Examples of Contributory Fault
Contributory fault will reduce or eliminate your compensation in every state, although some states have more tolerance than others. Following are some common examples of contributory fault:
- Ignoring safety warnings: You suffer an injury in a clearly marked restricted area of a public park, for example.
- You suffer an eye injury at a construction site after refusing to wear safety goggles.
- You’re working out at a gym and you use an exercise machine in a manner that the manufacturer did not anticipate–running backward on a treadmill, for example.
- Intoxication: You suffered a slip-and-fall accident due to a wet floor, but you were intoxicated at the time.
- You fail to mention your drug addiction on a medical history form. Your doctor relies on your reported medical history to prescribe you a certain drug, you get sick, and you sue your doctor for medical malpractice.
- In a car accident case, a traffic camera proves that you were driving over the speed limit prior to the accident, making it impossible for you to stop on time.
You can be almost certain that the opposing party will try to prove contributory fault.
The Burden of Proof in an Affirmative Defense
Normally, the plaintiff bears the burden of proving their case. But when the defendant raises an affirmative defense, such as contributory fault, the burden of proof shifts to the defendant. Contributory fault is an affirmative defense.
Workers’ Compensation Cases
Most work-related injuries are workers’ compensation cases. Most workers’ compensation cases are no-fault. This means that you can qualify for compensation without proving your employer was at fault. Consequently, contributory fault is not normally an issue in work injury cases.
You Might Need a Skilled Oklahoma Personal Injury Lawyer
Not every accident claim demands the expertise of a lawyer. Many do, however. If your accident claim is worth a significant amount of money, you might need a skilled Oklahoma personal injury lawyer.
For more information, please contact an experienced personal injury lawyer at (405) 497-0480 to schedule a free initial consultation today. Laird Hammons Laird Personal Injury Lawyer’s office is located in Oklahoma City, OK.