Many personal injury claims in Arizona hinge on proving negligence. Usually, both the plaintiff and the defendant argue that the other caused the accident or the harm. When this occurs, the judge, arbitrator, or jury must decide how to settle these conflicting claims.
The two main judicial doctrines for determining competing negligence claims are contributory negligence and comparative negligence. Arizona uses comparative negligence.
In this post, we explain what the difference between contributory negligence vs comparative negligence is, and how Arizona applies the doctrine of “pure” comparative negligence in personal injury claims.
If you have questions about your personal injury case, please call Stone Rose Law at (480) 631-3025 or use our contact form.
Basically, negligence describes the concept of “You should have known better.”
Legally, negligence has four parts:
Contributory negligence is an affirmative defense, meaning that the defendant must raise it in court and provide sufficient evidence to persuade the jury of it.
Contributory negligence is an older common law legal theory that dates back to days when the civil legal system could be described as less sympathetic to personal injury plaintiffs who played a role in causing their own injuries.
It is similar in concept to what courts in equity cases call the “clean hands” legal doctrine: if you want the court to give you an equitable or “fairness” based remedy, then you must have behaved fairly yourself.
The way that courts apply contributory negligence may seem harsh today: the rule is that if you, as the injured party, are even slightly responsible for the harm you suffered, then you have no legal remedy against the defendant.
In this sense, contributory negligence is an absolute defense: if the defendant can show that the accident was in any way the plaintiff’s fault, then the plaintiff’s personal injury case fails in court.
Today, only a few states in the United States still have contributory negligence laws—Arizona is NOT one of them.
States that use the contributory negligence doctrine recognize some situations in which the doctrine does not apply. These include:
Comparative negligence is another affirmative defense, but one that gives personal injury plaintiffs more leeway in seeking damages against a defendant in cases where they may have some responsibility for the harm done to them.
Comparative fault uses a percentage-based method to weigh the relative degrees of fault between the plaintiff and the defendant.
Comparative fault works in one of two ways:
Arizona is a pure comparative fault state for personal injury claims. It is one of just 11 states that use this standard.
Pure comparative fault allows for a plaintiff whose own negligence contributed to the accident and the resulting harm, but it reduces the plaintiff’s share of the damages recovery in proportion to the plaintiff’s percentage of fault.
For example, let’s say that in Arizona, the jury decides that both the plaintiff and the defendant were equally to blame, and splits their respective fault percentages at 50-50. Let’s further say that the jury decides the plaintiff’s damages award against the defendant is $100,000.
Pure comparative fault will reduce the plaintiff’s damages in this case to $50,000—50% of the initial $100,000 award.
The key distinction of a pure comparative fault system is that it does not restrict how much the plaintiff can recover, even in cases in which the jury concludes that the plaintiff was the one mostly at fault. If in a rear-end accident, for example, the defendant driver convinces the jury that the plaintiff cut off the defendant and a collision occurred, the jury might decide that the plaintiff was 51% at fault and the tailgating defendant was 49% to blame.
Here, given the same $100,000 damages award, even though the plaintiff was mostly to blame for the accident, that person still is entitled to $49,000 in damages. Technically speaking, even if the jury finds the plaintiff to be 99% at fault, the plaintiff would still be entitled to the remaining 1% of the original damages award.
The main restriction on the pure comparative fault doctrine in Arizona is that if the jury decides that the plaintiff did not act negligently, but instead behaved in an intentional, willful, or wanton manner, then comparative fault does not apply.
The modified comparative fault doctrine is a hybrid between contributory negligence and pure comparative fault.
Under a modified comparative fault system, the partially culpable plaintiff is still able to recover some damages against the defendant, but only to a point. This point is 49% or 50%, depending on the state that uses this doctrine.
Once this point is passed, comparative fault has the same result as contributory negligence—it acts as an absolute defense and bars any damages recovery for the plaintiff.
If we go back to our rear-end collision example, and the jury decides that the plaintiff and the defendant were evenly split in their fault for the accident, then, depending on the state one of two outcomes will occur under modified comparative fault:
Thirty-three states use one of these two forms of the modified comparative fault doctrine.
Most personal injury claims settle out of court, so it is important to understand how insurance companies factor in comparative negligence to allocate fault when negotiating possible settlement payouts.
Especially if you are negotiating with the defendant’s insurer, you can be confident that the insurance company will be keen to find any possible way to claim that you, as the plaintiff, contributed in any way to causing your injuries.
If the insurance company can get you to admit partial responsibility for the accident, it will use this admission as leverage to reduce your settlement compensation, based on the reasoning that if the case goes to trial, the same admission would be persuasive to a jury to find you comparatively at fault.
Although you should not lie or conceal the truth in direct responses to insurance adjuster questions, you should go into any conversation with them in the same way you would talk to the police if they were investigating you for a crime: “Anything you say can and will be used against you.”
This is why it is a good idea, before you talk with any insurance company adjuster, to hire an experienced personal injury law firm like Stone Rose Law to represent you. An expert personal injury lawyer can help you recognize and avoid the subtle liability admission traps that insurers will undoubtedly set for you, which will strengthen your negotiating position and maximize your settlement payout potential.
Chances are, unless you are a faultless plaintiff, you will have to contend with a comparative fault defense from the defendant’s insurance company, defense attorney, or both.
A Stone Rose Law personal injury lawyer can help you get the maximum dollar value and reduce any potential fault you may have.
Call us at (480) 631-3025 to talk with an experienced attorney and set up a no-cost initial appointment.
