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Ask the Attorney: You Can Still Sue If You’re Partly at Fault

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Asker: Am I at fault for my accident? The insurance company says I’m at fault even though I don’t agree. What should I do?

Attorney: Liability, or who’s at fault and legally responsible, is the basis of personal injury claims. Often, fault is complicated. As you begin the process of moving forward with your life, you might find that an insurance adjuster you have to deal with blames you, at least in part, for the accident. There’s such a thing as comparative negligence, which means both parties share some fault. In New Jersey and Pennsylvania, you can still seek compensation even if you are partially at fault, as long as you’re not more than half at fault for the accident.

Comparative negligence might sound complicated, but it doesn’t have to be – not if you have the right help on your side.

Understanding Comparative Negligence

It is inevitable that in our busy and sometimes dangerous world, some accidents will occur in which a single party – such as a driver or property owner – is not solely at fault. These are accidents in which the actions of two or more parties involved contribute to the accident happening. Typically, states have two ways of creating laws that establish what happens in these cases. In some states, a party that is partly at fault – even in the smallest way imaginable – cannot recover any compensation because of the part it played in the accident.

In theory, a system like this might sound sensible. After all, why should someone get money for the accident they caused? The problem is that the details matter in these cases. Say your accident was a case of premises liability – an incident of a safety hazard on a property that led to a slip-and-fall or other type of injury – in a commercial property, like a store. The insurance adjuster says you should have been watching where you were going instead of having your eyes on your cell phone, but you know that doesn’t excuse the property owner from leaving the floor in a wet and slippery condition. If the appropriate caution signs weren’t used and the slippery condition wasn’t visible from a distance, there’s no reason to suspect you would have seen the danger, anyway. The property owner had a legal responsibility to keep the premises safe – and that obligation doesn’t disappear just because you could’ve been a little more careful.

That’s why some states, including New Jersey and Pennsylvania, allow victims to seek compensation in circumstances of comparative negligence. In these states, both parties could be determined to be partially at fault, but the victim could seek compensation as long as he or she was less than half at fault for the accident. The victim wouldn’t get as much money as he or she might get if not determined to be partly at fault, but could still recover a percentage of the compensation he or she deserves.

If you are considered partly at fault for your accident, expect your compensation amount to be reduced by the same percentage you are at fault.

The Challenges of Comparative Negligence

When a case involves comparative negligence, the question becomes, “To what degree is each party at fault?” If you are 49 percent at fault for the accident that caused your injuries, you will likely see a much smaller payout than a victim in a similar situation who is just 20 percent at fault, or just 10 percent. Determining fault in these cases is difficult. Your attorney, if you have one – and you should! – and the insurance adjuster may argue over what each believes the correct percentages are. It’s likely that the insurance adjuster will try to say you are more at fault than you believe and that your lawyer will have to use evidence to back up his or her argument that your percentage of fault should be lower.

It’s a frustrating situation when an insurance adjuster argues that you are at fault for your accident, especially if you believe the other party’s liability is pretty clear. If you’re starting to get exasperated, it’s a sign that you really do need a lawyer to handle the situation. Cases that involve comparative negligence can be especially complex. By trying to deal with the claim yourself, you’re practically inviting the insurance company to take advantage of your lack of legal knowledge. Don’t be surprised if an insurance adjuster seems unwilling to offer you more than a fraction of what you deserve. Instead, be proactive and get someone on your side that can convince the insurer that your negligence in causing the accident was minimal and that you deserve compensation.

Disclaimer: Results may vary depending on your particular facts and legal circumstances.

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This article was professionally reviewed by Richard P Console Jr, an attorney licensed to practice in New Jersey, New York, and Pennsylvania.

Mr. Console has more than twenty years experience practicing personal injury law and successfully resolving vehicle accident claims on behalf of his clients.

Learn more About Richard P Console Jr.

While this information was reviewed for accuracy, it should not be considered legal advice. Every claim is different. If you are thinking of pursuing a personal injury claim and have a question contact us directly. 

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