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.
Comparative negligence cases can be complex and 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.
Understanding Negligence
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, 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 the 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 fault is not always clear in personal injury claims. 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 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. A jury will determine the percentage that each party was at fault 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.
Keep in mind that in any personal injury claim, the insurance company’s goal is to resolve the case for as little money as possible. They use a variety of strategies to achieve that goal, such as sending out an insurance adjuster to get a statement from an injury victim when they’re still in shock after an accident or offering a lowball settlement amount. Another common tactic is to argue that the injured party was somehow at fault for the accident.
If an insurance company can argue that the injured party was responsible in some way, they can reduce the amount that they pay out on the claim. In many cases, accident victims don’t realize what is happening – or that they have the right to fight back against these arguments.
An experienced Charleston personal injury attorney will investigate the facts of the accident and develop a strong legal argument against such claims. This may include interviewing witnesses, analyzing photos and videos of the crash, and requesting an accident report from law enforcement who reported to the scene. In this way, they can prove that your accident claim is valid – and that you were not responsible for the traffic accident.
The legal principle of comparative negligence is one reason why you should never talk to an insurance adjuster without first consulting with a personal injury law firm – and why you should never apologize to the other driver in a crash. Anything that you say could be taken out of context and used against you.
It is human nature to want to say that you’re sorry. It is also only natural to be confused about what happened in the aftermath of a traumatic event like a car crash. To protect yourself and your legal rights, you should stick to the basics while at the accident scene and focus on getting medical treatment and talking to a lawyer.
The best way to protect yourself – and to get a fair settlement for your losses – is by hiring an experienced accident attorney. They will handle all communications with the insurance company for you and defend you against any improper allegations of comparative negligence.
Even if you do bear some responsibility for the accident, your lawyer can work to reduce the degree of fault assigned to you by a jury. This may involve hiring an accident reconstruction expert who can testify that the at-fault driver was primarily responsible for the collision.
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 runs a stop sign. Both Amanda and Ben sustain losses in the amount of $10,000 each.
At trial, a jury found 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.
Of course, comparative negligence can also happen in cases where one driver obviously has a higher level of fault than the other driver. For example, consider a situation where Mary makes a left turn at an intersection without checking for traffic. Mary strikes Susan, who was momentarily distracted by her GPS and couldn’t avoid the accident.
In this case, Mary is primarily responsible for the accident because Susan had right-of-way – but Susan was engaged in distracted driving. A jury might decide that Mary was 85 percent at fault for the crash, while Susan was 15 percent at fault. Susan’s total recovery would then be reduced by 15%. If she was awarded $100,000 by a jury, then she would get $85,000 of that amount because of her culpability in the accident.
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.
If you were involved in a motor vehicle accident where comparative negligence might come into play, a skilled West Virginia car accident attorney will work to put together a strong claim and to defend against allegations that you were partially at fault. They will bring in accident reconstruction experts, photos and videos of the accident scene, and cross-examine witnesses to prove that you weren’t responsible – and help you get the money that you deserve for your injuries.
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 866-495-9423, or fill out our online contact form.