Traditionally, if an injured person contributed in any way to the accident or injury, he or she would be prohibited from recovering any compensation from another negligent party, even if the injured person’s own negligence was relatively slight. This harsh doctrine of contributory negligence has been abandoned in almost every state in favor of some form of comparative negligence, which limits recovery based on the amount of negligence attributed to the plaintiff.
In some states, a plaintiff may only sue if the plaintiff’s own negligence is less than that of the defendant(s), i.e. 49% or less. In other states, the plaintiff may sue so long as his or her negligence is not greater than that of the defendant(s), i.e. 50% or less. In either case, any amount the plaintiff recovers will be proportionately reduced according to the amount of negligence attributed to the plaintiff.
California, along with about a dozen other states, has adopted a standard of pure comparative negligence. Under this doctrine, even if the plaintiff is more at fault than the defendant, the plaintiff can still bring a lawsuit and recover based on whatever percentage of fault is attributed to the defendant. This method recognizes the concept of responsibility and holds everyone accountable for their behavior.
Examples of Comparative Negligence
In a premises liability slip and fall or pedestrian accident, if the person was running through a store or walking down the street and not paying attention to oncoming traffic, such behavior could cause an accident on a slippery surface or with a negligent driver, where more careful behavior may have avoided the accident. In an automobile accident, speeding, driving aggressively or recklessly, or using a mobile advice that is not hands-free, could all be considered negligent behavior. Whether such behavior actually contributed to the accident or not is a factual matter for the judge or jury to decide. It is vital to have an attorney who understands this issue and can defend the plaintiff’s behavior while keeping the focus on the defendant who actually caused the accident.
Besides contributing to the cause of the accident itself, the doctrine of comparative negligence may also look to whether the plaintiff’s behavior made the injury greater than it otherwise would have been. An example of this behavior is when a person who was injured in a car accident was not wearing his or her seat belt at the time of the crash. California law requires drivers and passengers to wear a seatbelt Cal Veh Code § 27315. If you are injured in an accident but were not wearing your seatbelt at the time of the collision, insurance companies and their defense attorneys will argue that you would not have been injured, or would have incurred a less serious injury, had you been wearing your seatbelt.
Since the most severe injuries in automobile accidents often occur when the injured party was not wearing a seatbelt, or was ejected from the vehicle following a collision, it is important for the plaintiff to show that the injuries were caused by the negligent driver, not by the injured person’s failure to wear a seatbelt. Accident reconstructionists and biomechanical engineers are often used as expert witnesses to demonstrate that serious injuries would still have occurred even if the injured party was wearing a seatbelt at the time of the collision.
A closely related issue to exacerbating the injury is the duty or failure to mitigate the damage. An injury that is left untreated can become dramatically worse over time, as in a brain injury or other serious injury. This is another reason (besides the obvious health reason) to be sure and visit a doctor as soon as possible after an accident, obtain a thorough checkup, and follow the doctor’s advice.
