Contributory or Comparative? Types of Negligence and How They Affect Your PI Claim
May 4 2018
If you are injured in an accident but share a degree of fault in it, will you still be able to recover compensation with a personal injury claim? Two different approaches to negligence govern the answer to this question. In this article, we will explain how they may affect your claim.
Accidents are one of the leading causes of injury in the United States. Every year, hundreds of thousands of people suffer health and property damage due to the negligence of another party. Personal injury claims are a vital way that the law protects those injured in accidents, allowing them to seek monetary compensation from the responsible party. Compensation obtained in the course of a claim or a lawsuit can help the injured party to pay for medical expenses and property loss or damage.
In some personal injury claims, there is only one injured party and one at-fault party. For example, if a car gets hit by another vehicle running a red light, the fault is relatively easy to determine provided the evidence of the fault is unequivocal. In this scenario, the driver of the passenger car hit by the driver who failed to observe traffic laws will have the right to be fully compensated for any bodily harm and property damage. However, in many other accident scenarios – car crashes or other mishaps – determining who was at fault may not be so straightforward. The injured party may, at least to some extent, share the responsibility for the accident. For example, a driver may have been speeding and hit a pedestrian. The driver is found liable because he or she didn’t show reasonable care for the safety of other users of the road. But what if a pedestrian crossed the street in a dangerous or prohibited location? He or she may be found to have neglected their own safety, effectively sharing the fault with the careless driver. In this scenario, would the pedestrian still be entitled to financial compensation for the injuries suffered?
There may be two different answers to this questions based on two different concepts of negligence and fault – contributory and comparative. Let’s take a look at how these can affect your personal injury claim and compensation prospects.
Contributory Negligence
The concept of negligence is based on the idea of a duty one person has towards another. When a person fails to act in the way a reasonable agent would, a breach of this duty occurs. Contributory negligence states that a person has a duty toward himself to act as a reasonable agent. If he fails to meet this condition and an accident occurs, he may be found partially or fully responsible for the damage and injury he has suffered even though there were other parties involved in the accident.
In the past, contributory negligence was a widely accepted rule. Unfortunately, under contributory negligence, the plaintiff would often be completely barred from recovering any damages if he were found to be partially at-fault. This application of the rule is more precisely called pure contributory negligence. Nowadays, though, it is widely applied to personal injury cases only in a handful of states – Alabama, Maryland, North Carolina, and Virginia. In addition, in the state of Indiana, it applies to medical malpractice cases and claims against the government. The other 45 states, including New Mexico, follow the rule of comparative negligence.
Comparative Negligence
Under comparative negligence, the amount of compensation the injured party may obtain in a personal injury claim or lawsuit is proportionate to their degree of liability, or fault, in the accident. Again, there are two approaches to comparative negligence:
- Pure comparative negligence – under this approach, the injured party will be compensated to the degree they were not responsible for the accident. If a person who suffered in the accident is found to be 10% at fault, the amount of compensation they will obtain will be 10% less than the total value of all damages. Technically speaking, pure comparative negligence allows for injured parties to recover damages, even if they are 99% liable for the accident.
- Modified comparative negligence – under this rule, a person will be barred from obtaining any compensation if their share of the fault is considerable. Usually, the threshold is set at 50 or 51%. Below this threshold, the injured party will recover damages for a percentage of the injury corresponding to the degree of fault of the defendant. Under modified comparative negligence, as long as the other party is more at fault, damages can be recovered.
Negligence in New Mexico
New Mexico follows the pure comparative negligence rules. This means that the injured party will not be barred from receiving damages even if his share of liability in the accident is considerable. The amount of compensation awarded will be reduced by the plaintiff’s own liability.
Those who suffered injuries and property damage in an accident should be aware of rules governing personal injury claims and theories of negligence defined by the state law in New Mexico. This will serve as a protection. At times, insurance companies may attempt to use dishonest tactics to coerce someone with a legitimate claim into an unfavorable settlement, arguing any legal action would fail since the injured party shares some degree of fault. As shown in this article, any such claims are utterly incorrect if applied to personal injury cases in New Mexico. A person injured in a serious accident should turn to an experienced personal injury attorney to explore all of the legal options available for them.
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