comparative negligence accident

After you are hurt in an accident, your lawyer will need to determine a few things:

  • Who caused the accident?
  • Wow did they cause the accident?
  • Are they liable for the injuries you suffered?

Your lawyer will also need to determine whether or not you are entitled to damages. These include things like the cost to repair or replace property, medical bills, and impacts to earnings potential (such as time you missed from work while you were injured).

But that’s not all.

There are a number of other damages that a victim is entitled to, as well, each of which is unique to the situation in question. Knowing exactly how much a victim is owed depends on accurately calculating the total impact the victim suffered.

comparative negligence fault woman shrugging


Comparative Negligence Example

When two drivers are involved in a car accident, the driver who caused the accident should cover the damages suffered by the other driver. Or his or her insurance policy will cover those damages.

In some instances, it can be a very straightforward situation where one driver is absolutely to blame, while the other contributed no fault of their own. In other accidents, the answer to the question of fault may not be so straightforward, such as in a left-turn collision where the victim was speeding. 

In these cases, is it fair for the left-turning driver and their insurance company to pay 100% of the damages?

In situations like this, there is a law known as comparative negligence.


Understanding Personal Injury Damages

Before discussing comparative negligence, it helps to clarify exactly what “damages” are in terms of a personal injury claim. Once we understand what damages are, we will be able to better explain what comparative negligence is, and how it factors into a personal injury victim’s final settlement or award.

After a personal injury, a victim starts out focused on 100% of the overall damages they suffer.

What are "damages" in a personal injury case?

In personal injury law, damages are the measurable impacts that a victim experienced as a result of an accident. These damages cover a wide range of issues, from something as simple to calculate as medical bills to more abstract and subjective impacts like the depression a victim can experience in the months that follow. 

Economic Damages

Economic damages include any impact that has a set and measurable dollar value, such as the cost of medical care or the impact on a victim’s income in the aftermath of an accident. These damages are paid 1:1, meaning there is no additional compensation beyond the total amount of financial costs and losses to a victim. 

Non-Economic Damages

Non-economic damages seek financial compensation for impacts that do not have a set dollar value. As you can imagine, calculating something like “post-accident depression” is a lot more complicated and up for greater interpretation than simply tallying the medical bills a victim has after the accident. Personal injury attorneys have various methods at their disposal to reach clear dollar amounts for non-economic damages.

Total Compensatory Damages

Once your attorney has calculated both the economic and non-economic damages, they will be added together. For example, if a car accident victim suffered from $100,000 of economic damages and an additional $150,000 of non-economic damages, the total compensatory damages they will seek will be $250,000.

However, there are additional factors beyond simply quantifying and calculating compensatory damages. Read on to learn about comparative negligence and how it factors into how much a victim ultimately takes home for a claim.

comparative negligence car crashWhat Are The Elements of Comparative Negligence?

In some accidents, it is very clear that one party is entirely responsible.

For example, a drunk driver who crosses the center line and strikes an oncoming vehicle head-on in the opposite lane is likely wholly responsible for the accident.

However, it's not always so cut and dried. Suppose there is a situation where a driver goes through an intersection with their headlights off in the rain, and they collide with a left-turning driver. In that case, the left-turning driver is responsible for determining that there is no oncoming traffic before proceeding, but they have a legitimate argument to make about not being able to see the oncoming driver.

Under Florida law, a victim can be partially responsible for an accident and still be entitled to compensation proportionate to their percentage of fault. Following our left-turn example, it may be decided that the victim was 25% responsible for the crash, and therefore their final award will be reduced by 25% to account for the negligence they contributed to the crash.

Damages totaling $250,000 will therefore be reduced to $187,500.

According to the Florida Statutes Section 768.81:

“In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and non-economic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.”

Comparative Negligence vs Contributory Negligence

In some states, the fact that the driver who was passing straight through the intersection without their headlights on could completely bar them from seeking compensation under a law known as contributory negligence. Contributory negligence denies a victim’s right to seek compensation even if they are 1% responsible, which can be absolutely devastating.

Fortunately, Florida uses comparative negligence.

Reckless Driving AccidentHow Does Comparative Negligence Factor Into Your Claim?

Comparative negligence will almost be discussed in your claim whether or not your actions contributed to your accident.

This is because comparative negligence is also another way for the insurance company to reduce the amount of money they ultimately need to pay. Every percentage point of fault that an insurance company is able to pin on you is a reduction of the cost to settle your claim.

You need a personal injury lawyer who understands the importance of comparative negligence and understands the tactics that an insurer is likely to use while trying to reduce their financial obligation. This is typically a two-pronged approach as they work to negotiate lower damages (particularly non-economic damages) while searching for every possible reason to offset blame to leverage comparative negligence to their advantage.

You are entitled to compensation for the damages you have suffered proportionately to the fault you contributed and not a dollar less.

How Are Comparative Negligence Percentages Determined?

If a personal injury claim makes it to the Florida courts, the percent of fault attributed to each party is determined by the judge presiding over the case. However, roughly half of all claims are resolved before a lawsuit is ever filed, and many of those lawsuits are settled before seeing trial. That means it is more likely that your attorney and the insurance company or defense attorney will reach an agreement about comparative negligence percentages without relying on a judge.

When working towards an out-of-court settlement, insurers and personal injury lawyers will review the details of an accident and calculate their estimates of individual fault. Often, there is a substantial gap between the insurer’s adjustment and the victim’s attorney’s estimate, so this is another area that will typically require some negotiation before reaching a final agreement. In some cases, the two parties may fail to agree on this factor, which may compel the victim and their attorney to file a lawsuit if they are confident that a judge will see it from their side of the claim. 

Simply put, there is rarely an easy or completely straightforward way to determine the exact breakdown of fault in a collision unless it is very clearly 100% one driver’s fault. In any other situation, the combination of experience, precedent, and evidence will help your attorney reach a percentage of fault that they believe is acceptable for your side to take responsibility for before pressing on with settlement negotiations. 

To Get The Most Out Of Your Personal Injury Claim, Contact BK Law Today

Through a range of tools such as police reports, eyewitness accounts, citations, and more, we will work to recreate your accident in a way that clearly shows how much, if any, fault you are responsible for in this situation. We will fight back aggressively to keep you from assuming more fault than you should rightfully take on. 

Our law firm understands the finer points of comparative negligence, including how insurers will attempt to use it to their advantage, and use this understanding in every case we handle. Contact us as soon as possible to request a free consultation where we can discuss the details of your accident, including how you may have contributed and how that can factor into your accident case accordingly. This is just one of the many things we will discuss during your consultation, all of which will ultimately help you understand the benefits of working with our law firm.