Breaking Down the Contributory Negligence Defense

by | Apr 21, 2022 | Injuries

Frequently in life, there are two sides to a story. This fact is sometimes present in car crash cases. For example, Driver A might not have been watching the road when Driver B went through a red light. Different states have different ways to resolve these dilemmas. In some jurisdictions, like nearby Virginia, victims who are partially at fault for wrecks aren’t eligible for compensation. But Kentucky is a pure comparative fault state. Victims are entitled to a proportionate share of compensation even if they are 99 percent responsible for wrecks.

So, even if you think you were at fault for a wreck, or even if an emergency responder said you were at fault, substantial compensation might still be available. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. A Lexington personal injury attorney can obtain additional punitive damages as well, in some extreme situations.

Legal Issues

If it asserts the comparative fault defense in a car crash claim, the insurance company has the burden of production and the burden of persuasion.

Basically, the burden of production is a legal question for the judge. Partial fault, by itself, isn’t enough. The insurance company’s lawyers must convince the judge the victim’s fault substantially contributed to the wreck.

Crossing the street on yellow is a good example. If Julio started across the street on yellow and a car hit him in the crosswalk, Julio’s negligence most likely substantially contributed to the wreck. But if Julio was more than halfway across the street when the light turned yellow and someone hit him, that’s different. The driver should have seen Julio and should have avoided him.

Usually, the burden of persuasion involves some additional facts. Technical legal arguments often have little effect on jurors. They must consider facts as well.

Let’s play with the above example a bit. Assume cars were parked on the side of the street when Julio walked into the street on yellow. Since these cars limited the driver’s visibility, jurors might assign a greater portion of the blame to Julio.

This entire legal setup plays into the hands of a Lexington personal injury attorney. Basically, a lawyer has two chances to derail the comparative faulty defense. If an attorney loses a pretrial hearing before the judge, an attorney can still convince jurors the defense doesn’t apply. Even if a lawyer loses this fight as well, since Kentucky is a pure comparative fault state, the victim is most likely still entitled to compensation.

How Comparative Fault Affects Informal Settlement Negotiations

This discussion is a bit theoretical. How does comparative fault really affect car crash claims, especially since most of these claims settle out of court?

Informal settlement negotiations often commence shortly after medical treatment is at least substantially complete. At that point, a Lexington personal injury attorney can calculate a claim’s value. Until doctors complete medical treatment, it’s very difficult to determine the amount of future medical expenses, if any.

Informal settlement negotiations aren’t court supervised. Therefore, insurance companies can use any possible excuse to delay the process. Usually, delay is the name of the game for these lawyers. Every day the insurance company holds onto a settlement check, it earns interest in a bank account. A few cents here or there may seem meaningless. But most insurance companies settle thousands of injury claims every year. The nickels and dimes quickly add up to quarters and dollars.

So, if the comparative fault defense passes the burden of production test, the insurance company drags its feet.

How Comparative Fault Affects Formal Settlement Negotiations

Mediation, which usually happens toward the end of the lawsuit process, is a court-supervised negotiation session. A third-party mediator, who acts very much like a judge, supervises the negotiations.

Both parties have a duty to negotiate in good faith during mediation. They must earnestly want to settle the claim and not just go through the motions. Furthermore, they must be willing to make some compromises instead of assuming a “take it or leave it” negotiation posture. During informal negotiations, an insurance company could use a shaky comparative fault defense as an excuse to make a low-ball settlement offer. That strategy doesn’t fly during mediation.

Furthermore, as mentioned, the mediator is much like a judge. Both sides make brief opening arguments that essentially lay out their claims and defenses. As talks continue, mediators usually give their opinions about a position’s validity. In other words, if a plaintiff or defendant has an argument that won’t hold water in court, the mediator will point out that weakness and encourage compromise.

Injury victims are usually entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. You have a limited amount of time to act.