If you sustain injuries in an accident, you have the right to sue the person whose negligence or wrongdoing caused it. Generally, this holds true even if your own negligence played a factor in causing the accident.
There are exceptions, however, depending on whether your state follows the pure contributory negligence rule, the pure comparative negligence rule, or a modified comparative negligence rule of its own.
Pure Contributory Negligence
Contributory negligence is a common law rule meaning that you cannot recover any damages whatsoever if you contributed in any way to your own injuries. Common law means that the rule derived from custom and judicial precedent, rather than from statutes. Today, only Alabama, Maryland, North Carolina, and Virginia are pure contributory negligence states. Consequently, in these states you cannot recover compensation from the other party if your own negligence caused even 1% of your injuries.
The District of Columbia is also a contributory negligence jurisdiction, but makes exceptions for motor vehicle accidents involving pedestrians and bicyclists. Indiana applies contributory negligence only in medical malpractice cases or injury claims against governmental entities.
Pure Comparative Negligence
The following 13 states are pure comparative negligence jurisdictions:
- Alaska
- Arizona
- California
- Florida
- Kentucky
- Louisiana
- Mississippi
- Missouri
- New Mexico
- New York
- Rhode Island
- South Dakota
- Washington
In these states, you can recover damages even if you were 99% responsible for the accident that caused your injuries.
Modified Comparative Negligence
The 33 remaining states apply a modified comparative negligence rule, but these rules can differ from state to state.
For instance, the following 12 states follow the 50% bar rule, meaning that you cannot recover damages if you were 50% or more responsible for the accident that caused your injuries:
- Arkansas
- Colorado
- Georgia
- Idaho
- Kansas
- Maine
- Nebraska
- North Dakota
- South Carolina
- Tennessee
- Utah
- West Virginia
The other 21 states follow the 51% bar rule, meaning that your actions must have caused at least 51% of your injuries to preclude your recovering damages.
Assigning Fault
At the trial of your personal injury lawsuit, the jury will hear evidence from both your side and that of the defendant with regard to who caused the accident resulting in your claimed injuries. Based on the evidence presented, the jury will then assign a fault percentage to the respective parties and reduce the amount of your damage award accordingly.
For instance, if your overall damages — including both economic and noneconomic — amount to $100,000, but the jury determines that you were 22% at fault, it will reduce the amount of your damages by $22,000, awarding you only $78,000 instead. Given the amount of compensation you face losing, your wisest strategy consists of hiring an experienced lawyer to be your aggressive advocate at trial.