Accidents Will Happen

Your Next Steps Could Make All The Difference

Smash! Bop! Wham! May be music to Batman's ears, but for the rest of us it's apt to be the sound track for an auto accident that's going to cost someone a lot of money. Worse, you may have the nagging suspicion that it's at least partly your fault. Suppose, for example, you're driving on a multilane highway in your new subcompact. The speed limit is 35, you're going 45. The roads are icy.

You have an unobstructed view of the oncoming truck rolling up to the next intersection and flashing its left turn signal.

You're familiar with the intersection and know the truck is facing a "left turn on arrow only" sign. Since your light is green, you know the truck's light must be red.

But instead of letting you through, the truck just slows down before ambling across your path in a lazy left-hand turn. You hit the brakes and swerve, but still skid into the corner of the truck's tailgate. You spin off the road and suffer injuries that could add up to thousands of dollars in medical expenses.

The truck driver escapes unscathed. You'd like to make sure he helps pay for your medical expenses.

But will the law support a claim against the driver? Is a lawsuit or full-blown trial likely to be worth the time and expense? If you receive a settlement offer, should you accept it? The answers may depend, in part, on whether you're in a contributory negligence, comparative negligence or no-fault jurisdiction.

Contributory Negligence

North Carolina is one of the states that recognize contributory negligence. The truck driver may seek to prove that, by violating the speed limit on an icy road, you failed to exercise due care to protect yourself from the risk created by his wrongful left turn. If he can further prove that your lack of care was a substantial factor in causing your injuries, the court might find you "contributorily negligent."

The result? You won't be compensated for your injuries unless you can show that the defendant's driving sank to the level of gross negligence.

The theory is that, since the accident probably wouldn't have happened if you had been driving safely, it would be unfair to let you saddle the defendant with all the responsibility for it.

While the concept of contributory negligence was once common, today only a handful of states retain this doctrine.

Comparative Negligence

Many states have adopted a more modern approach — comparative negligence — usually by legislation, sometimes by judicial decision. In the early 1960s only six states adhered to the doctrine, but beginning in 1965, the comparative negligence bandwagon started rolling.

In a comparative negligence jurisdiction, the first order of business for a judge or jury presented with your suit against the truck driver is to calculate, on a percentage basis, the degree of fault attributable to each of you. Let's say the jury decides your speeding on an icy road was 20 percent responsible for your injuries, and that the truck's running the red light contributed 80 percent.

On this theory, if the jury goes on to find that your damages consisted of $100,000 in medical expenses, you might be responsible for $20,000 and the defendant for $80,000.

About 14 jurisdictions follow a "pure" comparative negligence system under which you can recover some damages no matter how much you were at fault — provided that the other driver was also at fault to some extent.

Most states have opted for a "modified" comparative negligence law. In these states, you are legally entitled to compensation only if your own negligence was below a certain percentage.

No-Fault Insurance

No-fault insurance sometimes known by the stodgy phrase "motor vehicle reparation plan," is another relatively recent development. First surfacing in Massachusetts, the concept caught on through the 1970s but has since slowed.

No fault applies only to motor vehicle cases, and may cover only medical expenses and lost wages. It usually protects the driver, passengers and any pedestrians the driver strikes, though some states shield only the operator registrant of the covered vehicle.

The idea behind no fault is that you must purchase a minimum amount of no-fault insurance in order to drive. In return, you will be compensated by your own insurance carrier for your economic losses up to a specified level regardless of who was at fault for the accident. There are exceptions; a driver operating under the influence of alcohol, for example, would not be covered.

Can you still sue the other driver? Not necessarily. In a no-fault jurisdiction, you first must seek compensation from your own insurance company. Some no-fault plans then would prohibit you from suing the other driver unless you either could show that your economic losses reached a certain level or that your injuries included some specified serious conditions such as permanent disfigurement.

Other no-fault jurisdictions let you sue anytime, but require you to reimburse your no-fault insurer for its payments if you collect a judgment from the defendant.

As always, the situations vary from state to state. There's no substitute for giving all the facts to your lawyer and asking him or her to explain your legal actions.

The information on this site is made available to provide you with an informative summary of current legal issues. This information is of a general nature and should not be acted upon or applied to your specific situation without consulting your attorney.