When you are hurt in a car accident , it should be easy to seek compensation for your injuries, right? Well, not necessarily. Like every other legal aspect of your life, it depends on your state. Each state has its own laws to help regulate how to seek compensation for accidents.
For vehicle accidents – and any other type of accident – negligence laws will often apply. If another driver was negligent, they should cover your accident-related losses, and vice versa. If multiple parties were negligent, they should share liability. While this seems fairly straightforward, some negligence laws can complicate things.
When you have questions about the negligence laws of each state and how they apply to your situation, contact an experienced personal injury lawyer at Cesar Ornelas Injury Law to discuss your case.
Negligence laws determine the amount of compensation you are entitled to based on each party’s negligent actions. Negligence laws provide compensation for you following an injury, but they can also limit the compensation you can receive from the other driver.
Not all negligence laws are created equal. Some reduce the compensation you can receive from the other driver, while others prevent you from suing the other driver entirely.
There are two types of negligence laws:
Between contributory negligence and comparative negligence, contributory negligence laws are extremely strict. Even if you are found 1% responsible for your accident, you are prohibited from suing the other driver for damages in your car accident.
Many drivers consider these laws unfair, which is probably why only four states follow contributory negligence laws. The four states that follow contributory negligence laws include Maryland, Alabama, North Carolina, and Virginia. The District of Columbia also follows contributory negligence laws.
Even though comparative negligence laws are less extreme, they can still limit the compensation you deserve. As the name implies, each driver’s fault is compared to determine compensation. Under these laws, your compensation is limited based on the fault you are responsible for.
If you are found 80% responsible for your accident, for example, you can only receive 20% of compensation from the other driver. Even if you are the only driver injured in your accident, you can be held partially responsible under these laws. There are also two different comparative negligence laws that a majority of states follow. These types are pure and modified comparative negligence.
Pure comparative negligence laws are the laws that allow you to seek compensation even if you are at fault. However, your compensation will be reduced based on the amount of fault you’re responsible for. That means if you are 70% responsible for your accident, you will only be entitled to seek 30% of compensation. There are 13 states that follow pure comparative negligence laws, including Alaska, Arizona, California, Florida, and Kentucky.
Modified comparative negligence laws allow you to seek compensation based on a specific limit. If your percentage of the fault falls under a specific limit, you will be allowed to sue for your damages. If it’s past that limit, you will be prohibited from seeking compensation for your injuries.
For many states, there is a specific threshold of 50%. That means that if your percentage of fault is under 50%, you’ll be able to seek compensation for your injuries. If it’s above 50%, even if that percentage is 51%, you will be prohibited from seeking compensation.
The 50% rule is so important with modified comparative negligence laws. This standard affects whether you can collect any compensation for your damages. Even if you are found responsible for 51% of your accident, you could be out of luck when it comes to seeking compensation for your injuries.
Some states have used a 51% rule to make the law seem fairer. For you to be able to sue for your injuries, your fault would have to be deemed at least 49% or lower. To date, 33 states follow modified comparative negligence laws. These states include Texas , Arkansas, Georgia, Illinois, Michigan, and New Jersey.
Out of all of the states, there is only one that practices a combination of both comparative and contributory negligence. It is important to have an understanding of how this combination works if you ever find yourself involved in a car accident in this state.
That state is South Dakota. South Dakota follows a law that holds drivers accountable based on slight and gross negligence. Under this type of law, you could seek compensation if your fault was slight and the other driver’s fault was gross.
This distinction must be established for the law to be effective. If it’s too difficult to determine these two factors, you will be prohibited from seeking damages from the other driver. South Dakota residents have complained about this procedure because of its confusing nature. There are no specific standards for proving slight and gross negligence for each driver.
Negligence laws can affect your ability to recover compensation in so many ways. There are so many ways that your compensation can be limited, whether you were the at-fault driver or not.
If the other driver believes you were partially responsible for your accident, they can file a counterclaim against you. This can further delay your ability to receive your compensation. If more than two drivers are involved in your accident, the process could become even more complicated. No one wants to accept fault for an accident. You must go through each driver’s insurance company to recover compensation for your injuries.
No matter which negligence law your state follows, you’ll recover your compensation through the other driver’s insurance policy. You’ll be able to file an insurance claim through the other driver’s insurance policy to recover your compensation. There are various kinds of insurance policies that can cover your compensation.
One of the most common policies is the personal injury policy (PIP). PIP coverage compensates for your medical bills and lost wages after an accident. Whether the fault is determined, you can file a claim through the other driver’s PIP coverage for your injuries.
You still want to establish that you were not at fault regarding your accident, regardless of the negligence law. The other driver could argue that you were partially at fault for your accident when you weren’t. Many drivers will do whatever they can to avoid paying out compensation. With contributory negligence laws, in particular, you can lose the chance to receive compensation if you can’t prove the other driver’s negligence.
There are four elements used to determine negligence and fault in a car accident. These elements are:
You need to ensure that each of these elements must be proven when you are the plaintiff. If not, this is how the other driver can file a counterclaim against you. If you can’t prove these elements, the other driver could accuse you of causing your accident. Like yourself, the other driver would have to prove that your actions meet the elements of negligence. If they can’t, they may be determined to be at fault for your accident.
Fortunately, many of the other driver’s actions can prove each element of negligence. If the other driver caused your accident by speeding, for example, that’s an act of negligence. If they failed to yield the right of way to you, that’s another negligent act. Even if you were walking or riding your bike and were hit by a driver, that’s another act of negligence.
Insurance companies will determine fault after reviewing the evidence in the claim. They may follow up with you and the other driver to ask additional questions about the accident. In addition to this information, there are several factors that insurance adjusters will consider when establishing fault. These factors include:
Insurance adjusters will determine whether your actions were reasonable under the circumstances. If another driver were in your shoes, would they react in the same manner or perform the same actions you did?
Because there is no set standard of what is reasonable and prudent, this is where the conflict comes in. What you believe to be a reasonable action may not be reasonable to an insurance adjuster. Insurance adjusters are also interested in denying as many claims as possible, so they may hold your actions against you whether they were reasonable.
Another factor that will be considered is the sense of duty that each driver owes. You may think that each driver has the same sense of duty, but that’s not always the case. While each driver has the same duty to other motorists, not all sense of duty is equal.
Let’s say that a driver hit you while crossing the street. As a pedestrian, you would have less of a duty than the driver that hit you. Because pedestrians have the right of way, it may be difficult to hold you at fault for your accident. Even in those types of accidents, the drivers would have a greater sense of duty in the accident.
Insurance companies will also consider the proximate cause. Proximate cause is the action or actions of the driver who owes a sense of duty in an accident. This standard is usually important when determining how the damages were created in an accident.
With negligence laws, the actions of both drivers will be examined when determining fault. If the other driver’s actions were found to cause the accident, your fault might be lessened.
You want to gather as much evidence as possible to prevent the other driver from placing fault for your accident. You can gather evidence like copies of your police report, pictures of the accident scene, and your medical injuries.
If you have any video footage that can speak to the nature of your accident, that is even better.
Witness testimony can also help your claim. There’s also evidence that your lawyers can request from the other driver that can help strengthen your claim.
For example, you can request a copy of the driver’s phone records to show whether the driver was texting at the time of the accident.
Our lawyers in the San Antonio area advocate for victims who were injured by third-party carelessness or negligence. We can help, no matter how you were injured in your accident.
Each case that comes through the door is extremely important to us, and we fight for each of our clients as if they were our family. Seek the compensation you deserve for injuries suffered in a car accident, motorcycle accident, truck accident, or commercial vehicle accident.
At Cesar Ornelas Injury Law, our lawyers are here to make sense of the legal process for you.
Contact us online to schedule your free consultation. We will do everything possible to help you recover compensation for the injuries suffered in a San Antonio car accident.
If you or a loved one has been seriously injured, please fill out the form below for your free consultation or call us at: (855) 930-1149
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