Across West Virginia, accidents happen every day. Whether they involve an accident on a construction site, a truck crash, or even medical malpractice, accidents are far too common in our state – causing a high number of injuries and even death each year.
If you are injured in an accident, you may be entitled to compensation from the at-fault party. But what happens if you share some blame for the accident? Under West Virginia comparative negligence laws, your recovery may be reduced – or your claim may be barred entirely.
Cases involving comparative negligence can be complex and are often based on technical legal arguments. If you have been hurt in an accident where you may be at least somewhat responsible, a Charleston, WV injury lawyer can advocate for your right to compensation. Starting with a free consultation, your attorney will fight to get you the maximum recovery permitted under West Virginia law.
In West Virginia, most personal injury lawsuits (or tort claims) are based on a theory of negligence, which is the failure of a person to use the care that a reasonable person would in a similar situation. There are four elements in a negligence claim:
- Duty: the other party (defendant) owed you a duty of care;
- Breach: the defendant breached (violated) that duty;
- Causation: this violation was the proximate cause of your injuries; and
- Damages: you suffered damages (losses) as a result.
If you can demonstrate these four elements, then you may be entitled to compensation for your injuries. These damages may include both economic damages, for things such as lost wages, property damage, medical expenses, and reduced earning capacity, and non-economic damages, for items such as emotional trauma, pain and suffering, and loss of enjoyment of life. In rare cases, where the defendant acted recklessly or intentionally, punitive damages may be available.
In many personal injury cases, it is obvious that one party was to blame. For example, in a drunk driving accident, there is often no question that the person who was driving under influence was fully responsible for the crash. However, other cases may be less clear-cut, such as multi-vehicle pile-ups. In these situations, the concept of comparative negligence may come into play.
What Is Comparative Negligence?
Comparative negligence (sometimes referred to as contributory negligence) is a legal concept that recognizes that in personal injury claims, fault is not always clear. Under West Virginia’s comparative negligence laws, an injury victim who is 50% or less at fault for an accident can recover compensation for their injuries. Their total amount of damages will then be reduced by the percentage that they were to blame for the accident.
Unlike other states, which may allow for recovery regardless of the percentage of fault, West Virginia follows a modified comparative fault rule. If an injury victim (plaintiff) is 51% or greater responsible for the accident, then they cannot recover compensation from the other party. In this way, individuals who were mostly at fault for an accident are barred from recovery.
The way that West Virginia’s modified comparative negligence laws work is relatively straightforward. If you were 40% to blame in a car accident that left you with $100,000 in damages, then your recovery will be reduced by 40%, or $40,000, for a total of $60,000. The percentage that each party was at fault will be determined by a jury at trial.
The concept of comparative negligence can affect every aspect of your personal injury claim. After your personal injury attorney sends a demand letter to the insurance company, the insurer will typically respond with a counteroffer. If the insurance carrier believes that you may be partially at fault for the accident, they will argue that you should accept a lower settlement because a jury would reduce your award based on West Virginia’s comparative negligence.
For example, consider a situation where you were in a motor vehicle accident with a car that merged onto the highway without yielding the right of way. You suffered $50,000 in compensatory damages, including medical bills, lost wages, pain and suffering, and property damage. Your personal injury lawyer sends a demand letter to the at-fault driver’s insurance company.
The insurer responds with a counter-offer of $42,500. It argues that because you were speeding at the time of the collision, you were at least 15% at fault – so your recovery should be reduced by 15%, or $7,500. An experienced car accident attorney can evaluate the settlement offer, advise you on W. Va. law, and help you determine if you should accept the settlement offer – or take the case to trial.
What Is an Example of Comparative Negligence?
Comparative negligence may be found in many types of accidents. Comparative negligence may come into play in an accident where Amanda makes an illegal u-turn on a busy street. As she makes the turn, she is struck by Ben, who ran a stop sign. Both Amanda and Ben sustain losses in the amount of $10,000 each.
At trial, a jury finds that Ben was 51% at fault, while Amanda was 49% to blame. Under West Virginia’s modified comparative negligence rules, Tom could not recover for his losses because he was 51% responsible. Amanda can still recover, but her total amount of damages would be reduced by 49%, to $5,100.
How is Comparative Negligence Determined?
In an accident where more than 1 person was at fault, comparative negligence may come into play. A judge or jury will determine the comparative negligence of each party, after reviewing evidence and witness testimony and listening to arguments made by each side’s attorney. After the court determines these percentages, the total amount of damages that each party is entitled to will be determined.
How We Can Help
After being hurt in an accident, you may be overwhelmed by physical pain, emotional trauma, and mounting bills. If you believe that you were at least somewhat responsible for the accident, you may be unsure about whether you can file a lawsuit. Depending on the facts of your case, you may still be entitled to compensation.
At Johnstone & Gabhart, we represent accident victims throughout the state of West Virginia. We offer free initial consultations, and never charge a fee unless we recover money for you. To learn more or to schedule an appointment with a member of our law firm, call us today at 304-343-7100, or fill out our online contact form.