When someone is seriously injured as a result of an accident, one of the first questions that gets asked by those involved (and their insurance companies) is, “Who was at fault?” The legal concepts of contributory and comparative negligence often answers these questions in the eyes of the law, and provides a way to allocate fault between parties when the answer may not be immediately clear.
Negligence in Accident and Personal Injury Claims
Negligence is a term used to characterize conduct that creates an unreasonable risk of harm to others. If you are negligent, and your negligence causes another person to become injured, then you are legally responsible for paying damages. In order to prove another party liable for your injuries, it is necessary to prove that:
- The defendant owed a duty toward the plaintiff (i.e. reasonable care for other’s safety)
- The defendant failed to act in a reasonable way, or breached its duty (for example, a driver was reckless or intoxicated)
- The defendant’s breach was the actual cause of another’s injuries
- The defendant’s breach was the proximate cause of the injuries (the defendant should have known that the breach would cause injury)
- The plaintiff suffered actual injuries, for which they may claim damages
Most states (including Georgia) have now adopted a comparative negligence approach to contributory negligence, wherein each party’s negligence for a given injury is weighed when determining damages.
Traditionally, the courts viewed contributory negligence as a total bar to the recovery of any damages. Under the traditional view, if a person had contributed to the accident in any way, the person was not entitled to compensation for his or her injuries. In an attempt to reduce the harsh, oftentimes unfair outcomes resulting from this approach, most states have now adopted a comparative negligence approach.
There are two approaches to comparative negligence:
- Pure Comparative Negligence: Plaintiff’s damages are totaled and then reduced to reflect their contribution to the injury. For example, if a plaintiff was awarded $10,000 and the judge or jury determined that the plaintiff was 25 percent responsible for their injuries, the plaintiff would only receive $7,500 of their award.
- Modified Comparative Negligence: The plaintiff will not recover damages if they’re found to be either equally responsible or more responsible for the resulting injury. In other words, in order to recover damages, the plaintiff must not be more than 50 percent at fault for the resulting injury.
The concept of contributory negligence is used to characterize conduct that creates an unreasonable risk to one’s self. The idea is that an individual has a duty to act as a reasonable person. When a person does not act this way and injury occurs, that person may be held entirely or partially responsible for the resulting injury, even though another party was involved in the accident.
After an injured party files a claim, the defendant may then assert a contributory negligence claim against the plaintiff, effectively stating that the injury occurred at least partially as a result of the plaintiff’s own actions. This would be a contributory negligence counterclaim, a common defense to negligence claims.
If the defendant is able to prove the contributory negligence claim, the plaintiff may be totally barred from recovering damages or her damages may be reduced to reflect her role in the resulting injury.
Contact an Experienced Personal Injury Attorney
Suffering an injury due to the actions of another can be a life-altering experience. Between changes in work ability, costly medical expenses and the undue pain and suffering you may have to endure, seeking justice against the responsible party may seem like a daunting endeavor. With the help of an experienced personal injury attorney, however, you may find that recovering the compensation you deserve is easier than you think.
Greathouse Trial Law will stand with you—and for you—during this time to ensure that you are not unfairly held responsible for any injury you have sustained due to the negligent action of another party. If you or a loved one has been injured and wishes to know more about filing a claim, contact us today to schedule a free consultation.