This is a guest blog post by a friend and colleague of mine, Phil Harding.
Sometimes the situation is cut and dry. You’re hit from behind at a stop light. You kept your toes on the brake, so you avoided hitting the car in front of you. Clearly, the guy that hit you was negligent, and therefore is at fault. He even gets a traffic ticket. Slam dunk, so you think until the other side’s insurance gets involved, you need a personal injury attorney to go after the person who injured you. The person who ran into you has adequate insurance to pay for the treatment of your soft tissue injuries, the time you missed from work, plus compensation for the inconvenience of it all. And you have the satisfaction of saying that it was not your fault, and that he was the negligent party.
Most of the time it’s not so cut and dry. When there are multiple cars involved, few, if any witnesses, and conflicting stories, it can be challenging to determine the percentage of negligence (comparative negligence) of each accident victim. Remember that in many states, including New York, a plaintiff’s award can be reduced by the percentage that he or she was at fault, if applicable.
Why is it so important to establish negligence in an auto accident?
If your auto accident doesn’t settle among the insurance companies of the parties involved, your case may go to trial. Skipping to the end of the trial, if there is one plaintiff and one defendant, the jury may decide upon a preponderance of the evidence that each party is 50% negligent. In this scenario, neither party is paid a settlement and each party must pay all their own costs and attorney’s fees. Should the jury decide upon review of the evidence that one party is 60% negligent, and the other party 40% negligent, each party will be responsible for their portion.
A lot of elements make up the determination of negligence in an auto accident. Suppose you’re traveling straight due north through a four way intersection. Another car is traveling south through the same intersection. The light is yellow and you both are trying to beat the red. Just then a third car jumps the green light and you wind up in a three car pile-up. In this case all three drivers were diagnosed with whiplash, soft tissue injuries, and the driver who just wanted to get a jump on the green light broke his arm in two places, and all cars are totaled. The intersection is semi rural and there are no cameras, nor are there any eye witnesses. Each party hires an attorney to determine that they were not negligent, and that the other two drivers were negligent. Each party’s attorney hires an accident reconstructionist at great cost to determine who was the negligent party. There is little evidence left at the scene, and the photos of the cars are blurry and inconclusive. The case goes to trial. From all appearances, it looks as if all three parties are equally at fault. However, during closing arguments, your attorney makes a keen observation: “but for the car jumping the green, no one would have been hurt.” That’s logical, and true. The north and south bound cars were within the law by driving through a yellow light. The third car, by trying to jump the green light had to have gone through a red light and was the negligent driver. He was found to be 100% negligent. While the other two parties will walk away with a few minor, long lasting injuries, they will not have to carry the financial burden of paying for their treatment or the replacement of their cars. The party determined to be wholly negligent will have to pay the damages for treatment and court costs for all parties involved.
Comparative negligence is when you are determined to be partially at fault. If you are struck by another driver, or injured by another, you may not be considered negligent at the time, but later may be considered comparatively negligent. One example of comparative negligence is if you fail to mitigate your damages. Say you are in a car accident and you fracture your right index finger. You put a splint on it from the drug store and bear up under the pain until it goes away. Unfortunately your finger didn’t heal exactly straight and you can’t write or type as before the accident. When your case goes to trial three years later you show the jury how crooked your finger is and how you can’t write or type like you used to and that has impacted your living and advancement at your job. The opposing attorney in your trial will rightly say that you do not deserve full compensation for your injury because you did not get proper professional medical treatment to mend your finger correctly. You are then held comparatively negligent for your own injuries.
Proving negligence in an auto accident is the bottom line in establishing who is most at fault, who is partially at fault, comparative negligence, and who may not be at fault at all. The settlement is then apportioned to the lesser negligent parties by the primarily negligent party.
Denver, Colorado Attorney Phil Harding practices in the areas of Civil Litigation; Appellate Work, Wrongful Death; Dram Shop Actions (Liquor Store and Bar Liability) Bad Faith Breach of Contract; Construction Defects and Defense; Corporate Disputes and Plaintiffs’ Personal Injury Litigation.