If you have been in an accident and you’re confused about how liability (fault) is determined, don’t worry – you’re not alone. There are so many factors that go into determining liability that it is almost impossible for the average person to truly grasp the process. Having said that, the following is a general guide to help you understand the basics.
First, and most important, you must determine whether your state follows the contributory rule or the comparative negligence rule. All but five states (Alabama, District of Columbia, Maryland, North Carolina and Virginia) have adopted some form of comparative negligence. If your accident happened in a contributory negligence state, then essentially you cannot recover ANY damages (money) if your negligence contributed to the accident. For example, if you were struck head on by a semi truck that was being driver by a motorist that had fallen asleep at the wheel, but you were going 10 miles over the speed limit, you might not be able to collect ANYTHING from the semi driver. You don’t have to be a lawyer to see why this rule often produces unfair results. As a result, the vast majority of the states have moved to a comparative negligence formula to determine liability or fault.
While comparative negligence, in most people’s opinion, is a much more just way of determining fault, it is arguably significantly more complicated to understand and utilize. The basic concept of comparative negligence is that the actions (or inaction) of all parties to the accident will be assessed to determine their individual percentage of liability or fault. Still confused? Let’s consider the previous example of the truck driver. Imagine the same accident but add in the fact that the truck driver’s employer required him to work more hours than the law allowed. Now we have three potential parties to the accident: You; the semi driver; and the employer of the semi-driver. Now add in the fact that their was a huge pot hole in the road that had been there for months without being repaired and the semi-driver hit the pothole just before he veered into your lane of traffic. Now we have potentially added the government agency responsible for repairing the pot hole. At this point, we have four potential parties to the accident.
Next comes the daunting task of determining who was responsible for what percentage of the negligence that created the accident. This is a very complicated process and can involve a multitude of factors too numerous to list in this article. For the sake of our example though, let’s say that a determination has been made that the semi driver was 60% responsible, his employer was 20% responsible, the government agency was 15% and you were 5% responsible. Next, damages have to be determined – also a complicated and lengthy process. Again, in our example let’s imagine that the damage total is $20,000. You would only be entitled to recover 95% of the total amount of damages because you were 5% negligent.
As you can see, determining liability (fault) for a car accident is not a simple undertaking. If you have been involved in an accident, it is in your best interest to consult with an attorney who can explain the fault finding process to you further. For additional questions or a consultation, contact the law offices of Ledger & Associates at 1-800-300-0001 or visit us at www.ledgerlaw.com
