What if the Victim was at Fault Too?

Jul. 8th, 2016   /   , , , ,

What if the Victim was at Fault Too?

Nobody’s perfect. And although there is an old adage that one must not come into court with “dirty hands,” the fact is that even if someone acted in a way which partially caused their injury, they can still—in most states—bring a lawsuit and hold the other responsible party liable for at least a portion of the damages.

The issue our Delray Beach personal injury lawyers at Aronberg, Aronberg & Green are discussing is contributory negligence, or “comparative fault,” as it is labeled in many states, including Florida. This area of tort law deals with circumstances in which the claimed victims—the plaintiffs—acted negligently and thus partially caused or contributed to their own injuries. In some states, contributory negligence is a complete bar to recovery, meaning that if the defendant can prove that the plaintiff was contributorily negligent, they recover nothing. Other states, like Florida, operate under a theory of comparative fault, which apportions the damages among the parties in accordance with their percentage of the fault as determined by the jury (or a judge if there is no jury).

To explore this topic, let’s look at an example: Mike is driving his sedan and passes a barricade which reads, “construction zone – no thru-traffic – DETOUR”. Then Mike, while driving on that construction zone road, attempts to pass a cement mixer, operated by (hypothetical) Best Construction Company Inc., which veers to the side, allowing cement to pour over the front of Mike’s car, causing him to crash. Mike is badly injured. It is later determined that the safety latch, which makes sure the cement cannot escape the truck’s container, was not properly attached.

In a Contributory Negligence State

Mike might sue Best Construction for negligence, claiming that their negligence in not fastening the safety latch allowed the cement to pour out, thus causing his accident. However, in a contributory negligence state, where contributory negligence is a complete bar to recovery, Best would assert the affirmative defense of contributory negligence, claiming that Mike was negligent in ignoring the conspicuous sign on the barricade and driving his car down a construction road. Under these facts, as our personal injury lawyers know, Best Construction might win despite its negligence and Mike’s injuries. Other language that defendants might use in this case includes, “Mike assumed the risk by driving where he was told not to drive,” or “were it not for Mike’s actions in ignoring the sign and driving down the road, the accident would not have taken place.”

In a (Pure) Comparative Fault State Like Florida

If this situation took place in Florida (or another comparative fault state), the result would likely be different. Mike might very well convincingly argue that Best was negligent in not following the safety procedures and failing to properly attach the safety latch. Likewise, Best Construction might argue convincingly that Mike was at fault, too, because he chose to drive down the construction road, ignoring the detour sign he saw. As our personal injury lawyers know, in Florida (and in other comparative fault states), it would then be up to a jury to allocate fault. If the jury determines that Mike was 50% at fault and Best was 50% at fault, and awards damages of $100,000, then Best would only be on the hook for $50,000 (50% of the total award). If, say, the jury determines that Mike was just 20% at fault while Best was 80% at fault, then Best would be on the hook for $80,000. (Even if Mike was 90% at fault and Best was 10% at fault, Mike could still recover something—in the above case, $10,000).

This type of information is especially useful to those in Florida who are not, despite what they may think, precluded from recovering damages from responsible defendants even though they may have had a hand in contributing to their own harm.

If you were injured due to the negligence or wrongdoing of another—even if you may have been at fault, too—you can still recover the amount of money you deserve. Please contact our Delray Beach personal injury lawyers at Aronberg, Aronberg & Green by calling 561-266-9191 or by e-mailing us at daronberg@aronberglaw.com. Please get in touch to schedule a free consultation. We look forward to assisting you!

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