Does comparative negligence affect personal injury damages?

On Behalf of | Apr 26, 2023 | Personal Injury

If you’re involved in a Kansas motor vehicle collision, once you’ve had a chance to recuperate, you may have to head to court. As a surviving victim of a car accident, state law allows you to seek restitution if another driver’s negligence was a causal factor in the damage that occurred. A term known as “comparative negligence,” however, may affect the ultimate outcome of your personal injury claim.

Each state operates under its own personal injury guidelines. For instance, in some states, a plaintiff in such a case cannot include emotional pain and suffering in the list of damages for which one is seeking restitution. In this state, one may only include emotional suffering if it is directly linked to a physical injury or causes a physical injury to occur. A defendant may use a “comparative negligence” strategy to try to reduce a plaintiff’s recovery in court.

Comparative negligence means the plaintiff is partially responsible

If you file a personal injury claim following a motor vehicle collision, you must demonstrate evidence to convince the court that the defendant failed in a legal duty toward you out of negligence and that negligence resulted in a collision that caused the damages you have listed in your claim. The defendant may accuse you of comparative negligence, which means that he or she has asserted that you were partially responsible for the accident.

You may still be able to obtain financial recovery for damages, provided the court finds you less than 50% responsible for the collision that occurred. If, on the other hand, a Kansas civil court judge determines that you were 50% or more responsible for the accident, you become ineligible to seek compensation for damages. This is known as “modified comparative fault.”

A defendant must prove comparative negligence

Just as you are tasked with substantiating a personal injury claim against a defendant, so too must a defendant claiming comparative negligence prove the allegation. The following list shows several types of evidence the court will be looking for when a defendant in a personal injury case claims comparative fault:

  • The plaintiff failed to take obligatory action to prevent damages.
  • An average person would have taken reasonable action in a similar situation that the plaintiff did not take.
  • The plaintiff’s failure to act was partially or fully responsible for the collision that prompted a personal injury lawsuit.

Most plaintiffs would want to act alongside experienced legal representation rather than try to win a favorable outcome against a defendant who is accusing them of comparative negligence.

Comparative negligence isn’t only relevant to car accidents

Suffering injuries in a Kansas car accident isn’t the only time you might determine grounds for filing a personal injury claim in a civil court, only to encounter a comparative negligence defense from the other party. Such a defense is also sometimes legitimate following a sports injury, a slip-and-fall accident, a dog bite or other accident that results in injuries.