Determining liability or legal responsibility for an accident can be complicated, but often rests on whether someone was careless or “negligent.” It’s easy enough to say that the person or business that caused an accident must pay for your injuries. But before you get to that point, you must determine who was legally at fault.
Most accidents happen because someone was careless. The basic rule is: If one person involved in an accident was less careful than another, the less careful one must pay for at least a portion of the damages suffered by the more careful one.
Here are some sample scenarios:
- If the injured person was where he or she was not supposed to be, or somewhere he or she should have expected the kind of activity which caused the accident, the person who caused the accident might not be liable because that person had no “duty” to be careful toward the injured person.
- If the injured person was also careless, his or her compensation may be reduced by the extent such carelessness was also responsible for the accident. This is known as comparative negligence. Kentucky is a “pure” comparative state, meaning liability can be apportioned however it may be from 90%-10% or even 50%-50%. Ohio is a “modified” comparative state meaning the at fault party must be more negligent than the injured party.
- If a negligent person causes an accident while working for someone else, the employer may also be legally responsible for the accident. This is vicarious liability.
- If an accident is caused on property that is dangerous because it is poorly built or maintained, the owner of the property is liable for being careless in maintaining the property, regardless of whether he or she actually created the dangerous condition as long as the owner knew or should have known about the dangerous condition.
- If an accident is caused by a defective product, the manufacturer and seller of the product can both liable even if the injured person doesn’t know which one was careless in creating or allowing the defect, or exactly how the defect happened.
Bob was in a car accident in which he stopped short and was hit from behind. If the other person had been 100% at fault, Bob’s medical bills and lost income would entitle him to $1,000. However, the police accident report notes that Bob stopped short because one of a group of children next to a school looked as if he was going to dart into the street. The insurance company for the person whose car hit Bob from behind points out that Bob should have been going slowly enough in the school area to be able to stop without having to slam on his brakes.
In this case, not going slowly enough may have made Bob about 10% negligent. Because of this, the person who hit him is not liable to Bob for the full compensation of $1,000, but for only $900 (100% liability minus Bob’s 10% liability = 90% liability).
There is no formula for arriving at a precise number for a person’s comparative carelessness. During claim negotiations, you and an insurance adjuster will discuss all the factors that might have resulted in the accident. Then the question of your own carelessness goes into the negotiating hopper along with all the other factors that determine how much your claim is worth — such as the seriousness of your injury and the amount of your medical bills.
Comparative negligence is applied in three slightly different ways, depending on the state where the accident occurred. The more generous states allow you to recover compensation for your injuries in an amount based on the other person’s fault no matter how great your own fault was, like Kentucky. Most states, however, use a slightly more restrictive rule under which you can’t recover anything if your own carelessness was 50% or more responsible for the accident, like Ohio. And a handful of tight-fisted states don’t allow you to recover any compensation at all if your fault is any more than “slight” compared to the others involved — or, worse, if your own carelessness contributed in any way to the accident. (This is called “contributory negligence.”)