If you have been sued by someone else following a car accident, you may be able to attack their ability to prove the elements of their claim, such as causation. Also, there may be other defense strategies that you can use to limit or avoid liability. If you have auto insurance, your insurer probably will investigate the case from your perspective and devise litigation strategies on your behalf. You may still find it helpful to understand how these arguments work, whether you are a defendant trying to use them or a plaintiff trying to fight back against them.
In many cases, more than one driver was responsible for an accident. Perhaps one driver failed to yield the right of way, while the other driver was speeding. Or perhaps one driver was distracted by their cell phone, while the other driver was tailgating. This raises the issue of the plaintiff’s negligence, which can be addressed in three basic ways.
Pure Comparative Negligence
The concept behind comparative negligence is that a victim who was partly at fault for causing an accident should be held partly responsible for the resulting injuries and costs. States that follow a pure comparative negligence model, such as California, New York, and Florida, determine how much each party was at fault for the accident in percentages and allocate damages accordingly. For example, if each driver was 50% at fault for a crash, each of them could receive compensation for half of their damages from the other. Even if a plaintiff was more at fault than the defendant, they can receive a damages award proportionate to the defendant’s fault.
Showing comparative negligence essentially means proving the elements of a negligence claim against the plaintiff. This means that they had a duty to use a certain level of care, they failed to meet that standard, and this caused the accident. Just as a plaintiff will need to investigate an accident thoroughly to establish the defendant’s fault, a defendant will need to undertake a thorough investigation to prove comparative fault by the plaintiff.
Modified Comparative Negligence
Some states use a modified form of comparative negligence, which can be friendlier to some defendants. The key to modified comparative negligence is that it establishes a cutoff percentage of fault. If the plaintiff’s fault is found to be at or above that percentage, they cannot receive any damages. This percentage is usually around 50% or 51%. The idea is that a defendant should not need to pay money to someone who was just as much at fault or more at fault for the accident than they were.
If the plaintiff’s percentage of fault is found to be below the cutoff, a modified comparative negligence system works identically to pure comparative negligence.
This is a very defendant-friendly rule that applies in only four states (Maryland, Virginia, North Carolina, and Alabama) and the District of Columbia. Under this rule, a car accident plaintiff cannot recover any damages at all if they bore any share of the fault for an accident. Thus, even if the defendant was 95% at fault, and the plaintiff was 5% at fault, the plaintiff gets nothing. Since establishing contributory negligence is a complete shield against liability, defendants and insurers in these states try to raise this argument whenever possible. If you are bringing a car accident claim in a contributory negligence state, and fault is not entirely obvious, you should probably consult an attorney who is experienced in handling this issue.
If a comparative or contributory negligence argument does not apply, a defendant or their insurer may try to get a case dismissed on procedural grounds. These are separate from the actual merits of the case. Many procedural arguments involve the statute of limitations, which is a state-imposed deadline for filing a personal injury case. If a plaintiff does not comply with this deadline, the case almost certainly will be dismissed. A defendant or insurer also may argue that a complaint fails to state a claim or lacks some technical element that is required. Depending on the situation, a court may or may not allow a plaintiff to amend a complaint.
To avoid these complications and setbacks, a plaintiff should make sure to comply with any procedural rules, no matter how trivial they seem. If they are unsure about whether a certain rule applies, they should not hesitate to consult an attorney who is familiar with this area of law.