Who is at fault in this accident?
Common Law Negligence
Every contested auto accident involves two major issues - "liability" and "damages." Liability simply means that the other party must be legally liable before he or she has any obligation to pay compensation for injuries. (Damages are discussed elsewhere on our blog. Search our blog for damages issues discussed.)
Legal liability in a motor vehicle accident is most frequently based upon the law of negligence. Negligence is a concept that goes back hundreds of years to the English "common law," and it refers to the failure to exercise reasonable care under the circumstances.
The fact that an accident occurred does not necessarily mean anyone was at fault; some accidents are legally considered unavoidable, meaning no one is legally liable. There are four elements of negligence which must be present in every case before the negligent person (sometimes referred to as a "tortfeasor") has an obligation to pay damages:
- Breach of Duty
When you are operating a motor vehicle, you have a duty to exercise reasonable care for the safety of others on the road. That usually means that you must drive at speeds that are reasonable under the circumstances, keep your vehicle under control, keep a lookout for what is going on around you, obey traffic laws, etc.
If you do not live up to your obligations, you have breached the duty. For example, imagine a straight stretch of road where normally it is safe and legal to travel 45 MPH. However, on a particular night, the fog is so thick that you can't see ten feet. If you travel 45 MPH that night and run into another vehicle, you have breached your duty to drive reasonably under the circumstances.
However, in order to be held legally liable under the law of negligence, your breach of duty must be the cause of injury or damage to another. Continuing with the same example, if you travel 45 MPH down this foggy road at night but do not strike another vehicle, hit a person, or in any way cause any damage or injury, then you are not negligent. You may have violated the law and could receive a traffic citation, but you are not negligent.
Similarly, you might cause some type of incident but no damage to another person, in which case you still would not be negligent. Let us imagine that in your race through the fog you strike a wall, damaging your car but causing no damage to the wall. You are not legally liable to anyone, since your breach of duty has not caused any damage.
Negligence law can be fairly simple, as when one driver is inattentive and rear-ends another vehicle lawfully stopped at a red light. However, it can also be maddeningly complex, as when several people are involved, eyewitnesses differ in their accounts, and no one can agree on the facts, let alone what the legal obligations were.
If the operator of a vehicle violates one of the rules of the road and the violation causes an accident, that is referred to as statutory negligence. So for example, if the law prohibits passing over a solid line, and you pass over a solid line anyway and hit an oncoming car, the operator of that car would claim that you were negligent for violating the statute.
Not every statutory violation makes you legally liable for an auto accident, however. For example, in most states, the fact that a driver does not have a legal driver's license, or is not insured as required by state law, does not create legal liability for an accident. It may, however, subject the driver to other sanctions, depending upon state law.
Contributory Negligence and Comparative Negligence
Sometimes there is more than one person who is at fault in causing an accident. Whether an injured person can recover damages from a third party depends upon how their particular state applies the law of contributory and comparative negligence.
Let's take a simple example. John and Betty are each driving a car and collide in an intersection where there are no stop signs, traffic lights, or other markings. Each claims the other was going too fast for the circumstances and not maintaining a proper lookout entering the intersection.
Betty was injured in the accident and sues John, alleging that John was negligent. For his defense, John argues that Betty herself was negligent. The case is tried and goes to the jury. Let's assume the jury would award Betty damages for her injuries in the amount of $10,000.
In a contributory negligence jurisdiction, if the jury finds Betty was the least bit negligent and contributed to the accident, then Betty would recover nothing. Therefore, even if Betty is only 5% at fault and John is 95% at fault, Betty recovers $0.
In a comparative negligence jurisdiction, if a jury finds that Betty is 5% at fault and John is 95% at fault, Betty would still be able to recover, but her $10,000 in damages would be reduced by her 5% of the fault, so that Betty would recover only $9,500.
Comparative negligence differs among states. For example, if Betty is found to be 50% at fault, and John 50% at fault, some comparative negligence states would still allow Betty to recover $5,000 (50% of her damages), while other states would prevent her from recovering at all because she is equally at fault with the other driver.
Still, other states draw the line at 51%, following the principle that a plaintiff who is MORE negligent than a defendant should not be able to recover anything. For example, in Oregon, Betty would recover $5,000 if she is 50% negligent, but if she is 51% negligent, she would recover nothing.
Finally, there are about 13 states which have "pure comparative negligence" law. This means that a jury could conclude that Betty is 90% at fault for the accident, and John was only 10% at fault, but Betty would still be able to recover $1,000 (her damages reduced by 90%).