In some states, if you are injured in an accident and at fault to any degree, you may not collect any compensatory damages from another party who might also be at fault.
In most states, including Arizona, you can get compensatory damages if you are partially at fault. But different states apply different rules for allocating liability.
Personal Injury Law
Personal injury cases are governed by tort law. Tort law is comprised of statutory law and common law (mainly judicial precedent). A tort is a negligent or intentional act that causes harm to another person or property. They are civil cases (not criminal) that seek compensation for the victim.
The injured party (plaintiff) must prove the following basic elements. Personal injury cases usually are governed and processed by state laws. State laws are basically the same except for certain very important differences.
Venue
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An action for personal injury tort is subject to state law in most cases. Generally, an action for personal injury is brought in the county court in the place where the personal injury occurred. The laws of the state where it occurred will govern.
Liability
For a party to be liable for a tort, they must have negligently or intentionally committed an act or omission contrary to their legal duty, which conduct was the proximate cause of the harm to the plaintiff.
The liability element is often complicated where the plaintiff shares part of the responsibility by their own act or omission. State laws differ as to the allocation of liabilities and damages where multiple parties contribute to liability. That is the principal subject of this discussion.
Damages
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Damages awardable in a personal injury case are either compensatory or punitive. Compensatory damages are either economic or non-economic.
Economic compensatory damages are distinguished by the fact that they are monetarily measured. Those include:
- Medical expenses
- Lost wages and earnings, including capacity for earning future income
- Consequential damage to property
Non-economic compensatory damages include damages that are not measurable monetarily (e.g don’t have a price tag or recognized market value). Those include:
- Pain and suffering
- Mental anguish
- Permanent disfigurement
- Physical impairment
Punitive damages are non-compensatory, awarded as punishment and deterrent against future occurrences by the defendant or third parties. They are awarded only if the defendant’s actions are found to be egregious.
Some states place a cap on punitive damages which is usually a multiple of the compensatory damages awarded.
Burden of Proof
Another fundamental element of a personal injury lawsuit is who has the burden of proving the defendant’s liability (e.g. negligence or intentional act as well as the proximate cause) and the measure of damages.
Usually, that burden is satisfied only by the preponderance of the evidence. In other words, the jury or judge must be convinced that there is a greater than 50 percent chance that the plaintiff’s claim is true.
Sharing of Liability Among Multiple Offenders
Often in an accident, multiple parties share in the negligent or intentional acts or omissions that are proximate causes of injuries or other harm. Different states have different laws for allocating among the multiple parties the liability for damages. This complicates lawsuits already replete with complexity.
The first major distinction among state laws is the competing concepts of contributory negligence vs comparable negligence.
Contributory Negligence
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States adopting the contributory negligence doctrine do not allow liability sharing. If you are the victim of negligence or intentional tort but you are to any degree to blame for the accident you cannot collect any damages even if the other party is partially to blame. If you are responsible for only a very small percentage (e.g. 5%) of responsibility, you cannot recover damages.
Four states (Alabama, Maryland, North Carolina, Virginia) plus the District of Columbia use the contributory negligence rule.
All other states adopt some form of the comparative negligence rule.
Comparative Negligence
There are different versions of the comparative negligence rule among the various states. They are
- Pure comparative negligence
- Modified comparative negligence – 50% rule.
- Modified comparative negligence – 51% rule.
- Modified comparative negligence – slight-gross rule.
Pure Comparative Negligence
This rule assumes that most accidents involve more than one party at fault. It allocates liability among the parties in proportion to their relative shares of fault.
For example, suppose one party (X) suffers $10,000 compensatory damages as a result of an accident and bears 20% of the blame for the accident. If Y party’s (defendant’s) negligence is 80% of the proximate cause, then Y will be liable for $8,000 of the compensatory damages.
Eleven states (including Arizona) have adopted the pure comparative negligence rule. Arizona’s comparative negligence laws are set forth in Arizona Revised Statutes §§12-2501 et seq.
Modified Comparative Negligence Rules – 50% and 51% Versions
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The pure comparative negligence rule can be cumbersome because even if the victim is 99% responsible for the accident the defendant will be held liable for just 1% of the compensatory damages. Therefore, many states have adopted a modified comparative negligence rule to eliminate the cumbersome allocation of negligible shares of liability.
Under the 50% modified rule, if you are the victim of an accident for which you bear 50% or more of the blame, then you will get no compensatory damages. If you are less than 50% responsible then you will be awarded total compensatory damages reduced by the percentage of the blame allocated to you.
For example, in the example above, suppose you (X) suffer $10,000 compensatory damages and you are at least 50% responsible you will be awarded no compensatory damages. If instead, you are found to be 20% responsible you will be awarded $8,000 damages from party Y (defendant).
The perceived problem with the 50% rule is that if the plaintiff and defendant are equally to blame then it’s a draw and the plaintiff gets nothing.
Twelve states apply the 50% modified comparative negligence rule.
Under the 51% modified rule, the plaintiff must be more responsible than the defendant to be precluded from any compensatory damages. If the plaintiff is 50% or less responsible then they will be allocated and awarded their proportionate share of compensatory damages from the defendant or defendants.
Twenty states apply the 51% modified comparative negligence rule.
Modified Comparative Negligence – Slight-Gross Rule
This is an extremely subjective version adopted only by South Dakota. You can collect compensatory damages only if you are just slightly negligent. This is an older version of comparative negligence where “slight” is determined on a case-by-case basis.
Conclusion
If you are a victim of an accident you must prove several elements to support your claim for damages. Fundamentally, you must prove the defendant’s share of liability (blame). The rules for allocated liability vary from state to state.
The complexities of making your case demand the counsel of an experienced personal injury lawyer familiar with the laws of the state having jurisdiction.
Arizona applies the pure comparative negligence rule which requires litigation expertise with an understanding of liability allocation. The lawyers Wattel & York in Phoenix, Arizona are highly experienced personal injury lawyers who have successfully represented more than 25,000 satisfied clients.
