A motor vehicle crash often calls into question your own conduct—even as you claim someone’s negligence injured you. In some cases, a jury or court might find both of you to blame for the crash and your resulting lost wages, medical expenses (past and future), pain and suffering, and other losses.
Personal injury law comes with two doctrines that handle situations when both parties acted negligently and the extent to which you can recover for your personal injuries. Depending on where your accident occurred or other personal injury claim arose, you must deal with the defenses of comparative negligence or contributory negligence.
Between the two doctrines, comparative negligence delivers a softer blow to plaintiffs. Under this rule, the plaintiff’s negligence reduces the amount of recovery. The deduction from your recovery depends on whether the jurisdiction uses pure comparative negligence or a modified system of comparative negligence.
In the former approach to comparative fault, a jury or judge determines the amount of the defendant’s fault—whatever that may be—and multiplies that%age of fault by your damages.
For example, a jury says you’re 30% to blame for your wreck and fixes your losses at $60,000. That means you collect 70% of $60,000, or $42,000. Louisiana and Mississippi fall within the pure comparative negligence camp.
Modified comparative negligence puts a lid on the portion you can be at fault and still recover damages. In some states, you can recover so long as you are not more to blame than the defendant. Those states follow the 51% threshold.
If your wreck happened in Arkansas, being just half at fault bars your recovery. Even if you are less than 50% to blame, you’ll still face a deduction in your recovery based on the proportion of negligence.
The Harsh Rule
Five jurisdictions—Alabama, District of Columbia, Maryland, North Carolina, and Virginia—prevent recovery for a plaintiff whose fault contributes to any degree to injuries. Though this rule seems cruel, you do have some ways to keep contributory negligence from denying you compensation for your injuries.
The Defendant Had the Last Clear Chance
A defendant who has the “last clear chance” to avoid the crash and injuring you cannot use contributory negligence as a bar. To claim this shelter, you must show all of the following:
- As plaintiff, you become placed in a perilous position
- The defendant knew that you were in peril
- The defendant failed to use reasonable care to avoid the injury and caused injury to you
Within the last clear chance lie cases in which, for instance, you stop in the middle of a highway. If the defendant observes your vehicle, has the time and means to stop, but fails to do so and hits your vehicle, contributory negligence may not bar your claim.
The Defendant Acted in a Willful and Wanton Manner
Contributory negligence bars only claims based on ordinary negligence. When the defendant acts willfully and wantonly, contributory negligence affords no defense. Such conduct occurs intentionally or in reckless disregard of your safety and rights. The concept goes beyond mere inattention, carelessness or inadvertence or a mistake.
Examples of willful or wanton conduct may include:
- Driving while impaired by alcohol, drugs (including prescription drugs) or other substances
- Driving at a high speeds on an icy road, in foggy conditions, or in a blind curve
- Texting or using a smartphone while driving
- Drag racing
- Looking away from the road for extended periods of time
- Numerous instances of weaving
- Driving left of center or outside the proper lane of travel for a significant time
Alabama lawyers at Morris Bart also look for willful and wanton conduct when representing passengers injured by negligent drivers. If you were injured as a passenger, you must show your driver engaged in willful and wanton driving to recover for your personal injuries. Your attorney can evaluate your case and the applicability of comparative or contributory negligence.