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Accident Fault FAQ

If you've been injured in an accident, whether it's a slip and fall, a car accident, or medical malpractice, it can be hard to prove who is responsible. Below are some answers to frequently asked questions about accident fault. See FindLaw's Who Is Liable? section for additional articles and resources.

What Is Negligence?

In the legal sense, "negligence" is the word used to describe any careless behavior that causes or contributes to an accident. As an example, if a person failed to stop at a red light and hit your car while going through an intersection, that person was probably negligent.

To prove that someone was negligent and win your lawsuit, you must generally be able to prove five elements:

  • Duty: This element is often phrased in the question, "Did the defendant owe a duty to the plaintiff?" Duty arises in many forms. For example, the owner of a store owes a duty to customers to keep the premises reasonably safe to prevent injuries. For car accidents, drivers on the road have a duty to all the other drivers on the road to drive safely.
  • Breach of Duty: After defining the duty, a determination must be made as to whether or not the defendant breached their duty to the plaintiff. To prove this element, you must show that the defendant failed to act as a reasonable person would have acted under the circumstances.
  • Cause in Fact: This is commonly called the "but-for" test. If you can show that, but for the defendant's actions, the plaintiff would not have been injured, then you have satisfied this element. For example, but for the defendant's drunk driving, the pedestrian would not have been injured.
  • Proximate Cause: This relates to the proximity of the defendant's actions to the harms at issue in the lawsuit. The injury must flow directly from the proximate cause and there may be more than one proximate cause. For example, if the defendant hit and injured a pedestrian while driving, and then at the hospital, the injured person called his grandma to tell her about his broken leg, and the grandma suffered a stroke, this may be outside the proximate cause of the defendant's actions. This element has an air of "fairness" around it and often asks whether it is fair to attribute the injury to the defendant's actions.
  • Damages: You must be able to show damages to prevail in your lawsuit. In a personal injury case, damages often include medical bills, lost income, pain and suffering, and damages that may be suffered in the future.

In most situations involving accidents, a cause of action (lawsuit) for negligence is the most common scenario. If you can prove all of the above elements, you have a chance of succeeding in your claim.

I Was In an Accident. How Do I Prove Who Was at Fault?

In a majority of circumstances, if you were in a car accident, legally proving accident fault may not be a top priority. That's because you will most likely be dealing with insurance companies where you do not have to be formal. In most negotiations with insurance companies, you will merely need to present your side of the story in an clear and easy to understand way.

Claims adjusters are looking for issues in your case to lower the value of your case so be prepared to stand your ground on the facts without being too aggressive. The adjusters are also trying to determine what kind of witness you could be in a lawsuit.

In the case of a car accident, when dealing with an insurance company, you will probably not need to present evidence detailing skid marks and lengths, but rather give your account of the situation to them, either over the phone or via a letter. Common knowledge of the rules of the road can, most likely, be enough to get you the settlement that you are entitled to.

It can help your case if you can give the insurance company some forms of evidence, such as a police accident report and witness information. Adjusters will appreciate photos or videos of the scene of the accident and photos of injuries you sustained. If you lost out on a trip or couldn't do things you enjoy such as walking or time with children make sure they know about it.

Insurance companies would much rather settle a claim for an accident outside of court rather than take on a full-blown litigation matter. It makes better business sense to them to pay out money for personal injuries and property damage, as opposed to paying attorneys and court costs.

I Was Injured In an Accident; Can I Get Compensated Even Though I May be Partially Responsible?

In most situations, yes. In a majority of states, an award for personal injury will be reduced by the amount that the injured person was negligent.

For example, if the accident fault for an automobile collision was determined to be 80% the fault of the other driver and 20% your own fault, your award for your injuries would be lessened by 20%. So, if your injuries totaled an amount of $10,000, you would receive $8,000. This is called the rule of "comparative negligence."

However, there are a few states that follow the older rule of "contributory negligence." Under this rule, if you were at all responsible for your accident, then you are banned from receiving any award for your personal injuries. Even in contributory negligence states, however, you may still get some money for your injuries by negotiating with the insurance company.

Because of the mathematical nature of this calculation, you may think that there is some sort of formula that insurance companies use to determine the amount of fault to assign. However, this is not true. As with most things in life, determining the amount of blame that can be placed on you will most likely boil down to a negotiation. The claim adjuster for the insurance company may come to you with a percentage, and you can either accept their determination or make an argument that their calculation is not correct.

Before negotiating, plan out some settlement amounts stepping down to the amount you think is fair. The adjusters are very accustomed to negotiating in this manner. They expect to make an initial offer and then two to four additional offers so plan to do the same with your offers.

See Contributory and Comparative Negligence to learn more.

I Was In an Accident Where My Physical Limitations Made the Accident More Likely or My Injuries Worse; Can I Still be Compensated?

Yes. For example, if you have a medical problem that makes jarring motions to your head more dangerous than to other people, you have the right to recover for your injuries sustained from a car accident, even if those injuries are worse than would have been sustained by a person in good health. It does not matter what limitation you may have, you have the right to be free from unnecessary danger caused by other people. If you have a serious condition, such as arthritis, that is aggravated by the accident, your compensation may be higher because of the need for future treatment.

What Are "No Fault Laws" and "No-Fault Insurance?"

About a dozen states have what are called "no fault" laws with respect to injury claims for automobile accidents. In these states (including Pennsylvania, Florida, New York, and Massachusetts), drivers are to varying degrees released from liability for causing bodily harm in an accident. Generally, no-fault insurance policies cover bodily injuries sustained by the insured regardless of fault.

Get Professional Legal Help with Your Accident Fault Questions

The majority of automobile claims can be handled without an attorney, particularly those that don't involve bodily injuries. However, when there's bodily injury or significant property damage involved, it's best to leave it to the experts. If you were involved in a serious car accident, don't wait. Contact a local car accident attorney today to learn about your legal options moving forward.

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