Not every car accident has one completely careful driver and one completely careless driver. In some collisions, two or more people may have contributed to what happened.
The attorneys at Isaacson, Schiowitz & Korson, LLP explain the general concept of shared fault and why the governing rules must be evaluated carefully. A personal injury lawyer can evaluate how shared fault laws may affect your claim, explain how responsibility is determined, and help you pursue the maximum compensation available under the facts of your case.
How Shared Fault Can Arise
Consider a driver who turns across traffic without enough space. An approaching driver may also be traveling too fast or looking at a phone. The unsafe turn and the approaching driver’s conduct may both have contributed to the collision.
Other examples might involve:
- Two drivers changing into the same lane
- A driver stopping unexpectedly while another follows too closely
- A pedestrian crossing carelessly while a driver fails to maintain a proper lookout
- Several vehicles contributing to a chain-reaction collision
The existence of fault by one person does not always eliminate the need to examine everyone else’s conduct.
What Is Comparative Fault?
Many jurisdictions use some form of comparative fault. Under this general approach, responsibility may be assigned among the people whose conduct contributed to an accident.
A person’s recovery may then be reduced according to that person’s assigned share of responsibility. Some jurisdictions permit recovery even when the injured person bears a substantial share of fault. Others prevent recovery once the person’s responsibility reaches a specified threshold.
The exact rules vary by state and sometimes by the type of claim.
Contributory Negligence Is Different
A small number of jurisdictions follow stricter contributory-negligence rules. Under those systems, an injured person’s own negligence may have a much greater effect on the ability to recover.
Because the consequences differ considerably, general statements about shared fault should never replace an examination of the law that applies to the particular accident.
How Are Percentages Determined?
Fault percentages are not calculated by a universal formula. Insurers, attorneys, arbitrators, judges, or juries may consider:
- Traffic laws
- Driver statements
- Witness accounts
- Police reports
- Vehicle damage
- Photographs and video
- Roadway conditions
- Electronic vehicle information
- Expert analysis, when necessary
The reliability and completeness of the evidence often matter more than any single person’s initial opinion.
An Insurance Decision May Not Be Final
An adjuster may assign fault while evaluating an insurance claim. That decision can affect settlement discussions or payments made under the policy.
However, an adjuster’s assessment is not necessarily binding on every party or in every later proceeding. Additional evidence may change the analysis, and two insurers may initially disagree.
Avoid Accepting a Percentage Without an Explanation
If an insurer assigns a percentage of fault, ask what evidence supports that conclusion. Review whether the company considered all available photographs, witness statements, video, and traffic-control information.
A driver’s honest statement that something happened does not necessarily amount to an admission of legal responsibility. Fault depends on the complete circumstances and applicable law.
Documentation Is Especially Important
Shared-fault disputes often turn on details. The position of the vehicles, visibility, timing, speed, and opportunity to react may all matter.
Photographs, independent witnesses, and prompt notes can preserve those details. Without evidence, the analysis may depend almost entirely on conflicting recollections.
Be Informed
Shared fault does not always prevent an injured person from pursuing a claim, but it may affect the outcome. The rules differ significantly across jurisdictions. A careful review should consider the conduct of every person involved, the available evidence, and the law that applies rather than assuming that responsibility must be all or nothing.