An at-fault party who causes an injury should bear the consequences of their misconduct, including monetary damages. Yet most claims, especially car accident claims, aren’t so clear-cut. Often the defendant and the victim share liability for an accident. In such cases, the legal principle of contributory fault provides a way to distribute compensation among the parties.
The typical way a contributory fault claim works is that you build your case, and then the defendant tries to tear it down by finding fault with your behavior.
Building Your Case Part 1: Establishing Fault
In a personal injury claim, “fault” usually means negligence, although sometimes it means intentional misconduct. To establish negligence, you must prove that the defendant owed you a duty of care and that it was violated.
Duty of Care
Proving the existence of a duty of care is typically straightforward. Everyone has a duty of care to drive safely, for example. In some cases, duty of care can get more complex. A physician, for example, owes an elevated professional duty of care toward their patients. In a medical malpractice claim, for example, you will probably need an expert witness to establish the defendant’s precise duty of care under the particular circumstances of your case.
Breach of Duty of Care
Duty of care is a legal question. For instance, should the doctor have ordered a blood test based on your symptoms? Breach of duty, on the other hand, is a factual question – did the defendant actually perform a particular action? There are two ways to breach a duty: by commission (action) or by omission (inaction). Running a stop sign might be a breach of commission, for example, while failure to order a blood test when needed might be a breach of omission.
Building Your Case Part 2: Establishing Liability
Once you establish duty and breach, you have established that the defendant was negligent. Now you need to establish liability. To do this, you must prove (i) you suffered an injury and (ii) the defendant’s negligence was the cause of your injury. You must prove every penny of damages that you are claiming.
Contributory Fault: The Defendant’s Counterclaim
Once you build your case, it is up to the defendant to oppose it. The most popular way of doing this is to make a counterclaim. Perhaps the most popular counterclaim is contributory fault, which is an assertion that you were partly to blame for your own injuries. All states apply some version of contributory fault.
Contributory Negligence
Under the harsh contributory negligence doctrine, you can only recover damages if your percentage of fault is 0.0%. Even 1% fault will be enough to sink your claim. The only US jurisdictions that apply contributory negligence are Alabama, the District of Columbia, Maryland, North Carolina, and Virginia.
Slight/Gross Negligence
Only South Dakota applies the concept of slight/gross negligence. Under this system, you can only recover damages if your negligence was slight (or nonexistent) and the defendant’s negligence was “gross” (extreme). This makes it difficult, but not impossible, to recover damages.
Pure Comparative Negligence
Under a pure comparative negligence system, a court will apportion each party’s damages in strict conformity with their percentage of fault. If you are 80% at fault, for example, you will lose 80% of your own damages, and you must pay 80% of the defendant’s damages. If you were 1% at fault, you will lose 1% of your own damages, and you must pay 1% of the defendant’s damages. A total of 13 states apply pure comparative negligence.
Modified Comparative Negligence
Under the modified comparative negligence system, you will lose damages in exact proportion to your percentage of fault. However, unlike with pure comparative negligence, if your percentage of fault reaches a certain threshold (50% or 51%, depending on the state), you will lose all of your damages. You will also have to pay whatever percentage of the defendant’s damages equals your own percentage of fault (60%, for example).
Texas applies a 51% threshold on damages, which means you will receive no damages if your percentage of fault exceeds 50%.
Chipping Away at Your Damages
In settlement negotiations, you can expect the defendant to try to “nickel and dime you to death” by constantly finding new ways to blame you for at least part of the accident. They might fault you for wearing headphones while driving, for example. This could result in a contributory fault assessment against you even though there is no Texas law that specifically forbids this practice.
The defendant’s strategy is likely to be to pressure you into settling for less by increasing the uncertainty that you will face if you take your claim to court.
Hire a Lawyer To Protect You Against a Contributory Fault Counterclaim
You can bet that the defendant in any personal injury claim you assert will try to blame you for the accident. If this happens, you will probably need a lawyer to help you fight back. Contact us at George Salinas Injury Lawyers at (210) 225-0909 to schedule a free consultation. Since they only charge you legal fees if they settle or win your case, hiring a personal injury lawyer is almost risk-free.
