In many personal injury lawsuits, the issue of contributory negligence may be raised. Contributory negligence is the negligent conduct on the part of the injured party that contributes to the negligence of defendant(s) in causing the damage.
Every state has a different take on how contributory negligence should affect a plaintiff’s ability to recover damages. Some don’t allow plaintiff to collect any damages even if they are just 1 percent at-fault. Most follow a system where plaintiff’s can collect damages so long as his or her negligence doesn’t exceed that of defendant(s).
Florida is perhaps one of the most liberal in this regard because it allows plaintiff to collect even if he or she is 99 percent at fault for what happened. This is known as the “pure comparative fault rule,” and it’s followed by a dozen states. The rule requires plaintiff’s damages to be reduced by his or her own percentage of fault. So if a plaintiff is 99 percent to blame, he or she can only collect 1 percent in damages.
This is why it’s important to speak with a Boca Raton personal injury lawyer following a trucking accident – even if you believe you may have been primarily at-fault. It may still be worth your while to pursue damages for the damages that may be apportioned to the truck driver.
However, other states may have to weigh the issue more carefully. Take, for example, the recent case of Kozlov v. Associated Wholesale Grocers. This was a tragic truck accident in which one trucker perished and two others were seriously injured.
According to court records, one plaintiff was hired by a New York trucking company looking for entry-level drivers. On his first job, he was given the assignment to drive cross-country. Because he was new, the company assigned a more experienced driver to ride with him.
Company policy indicated that the more experienced driver was to at all times be in the passenger seat (not in the sleeper berth) while the new driver was behind the wheel. Secondly, all nighttime driving was the duty of the more experienced driver.
However, on the night in question, it was after 1 a.m. and the experienced driver was in the sleeper berth while the new driver was operating the truck – at just 13.5 mph on a highway.
Meanwhile, another trucker approached from the rear. Officials would later indicate that driver was traveling approximately 70 mph, far in excess of the speed limit on that stretch of road. There was no indication the rear trucker tried to stop or evade a collision. He struck the slow-moving truck with high force, causing his truck to burst into flames. The rear truck driver died instantly, while the other two were seriously injured.
The two surviving truck drivers sued the estate of the decedent driver, as well as his employer, alleging negligence and vicarious liability.
The case went to trial. Although jurors did find decedent driver was partially to blame for what happened, they also found plaintiffs were at-fault. In fact, they determined the driver was 84 percent to blame and the sleeping passenger was 8 percent to blame. The remaining 8 percent of the fault assigned to decedent.
In Nebraska, where this crash occurred, plaintiffs whose blame is equal to or greater than defendant(s)’ blame cannot collect any damages. Therefore, plaintiffs got nothing.
Had this same case happened in Florida, plaintiffs still would have been able to collect – albeit, a much smaller sum.
For example, it was determined that plaintiff driver incurred $320,000 in damages. However, because decedent driver was only 8 percent at fault, plaintiff driver could only have collected $25,600 in damages.
Unfortunately, because of the modified comparative fault rule in Nebraska, plaintiffs will receive nothing.
If you have been injured in an accident, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Kozlov v. Associated Wholesale Grocers., March 23, 2016, U.S. Court of Appeals for the Eighth Circuit
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