“Comparative negligence” refers to the proportion of fault for the incident attributable to the plaintiff. Sometimes this is also referred to as “contributory negligence,” “contributory fault,” or “comparative fault.”
In Washington, the general rule is that the injured person’s recovery is reduced by the amount of fault attributable to the injured person (plaintiff). For example, if you were involved in a crash where the defendant negligently turned left in front of your vehicle, but you didn’t have your headlights on and it was starting to get dark, the jury may find that both parties were at fault. If the jury finds that the defendant was 80% at fault and the plaintiff was 20% at fault, the plaintiff would be entitled to recover 80% of her total damages from the defendant.
Unlike some other states, plaintiffs in Washington are entitled to compensation even when the plaintiff’s injuries are more than 50% attributable to the plaintiff’s own negligence, so long as the plaintiff proves that the defendant was also to blame. For example, if a jury finds that the defendant’s negligence was 40% responsible for the crash, and the plaintiff’s negligence was a 60% cause, then the plaintiff would be entitled to recover 40% of her total damages from the defendant. In some other states, plaintiffs are barred from recovering any money if a jury finds that they were more than 50% to blame.
Another concept included within comparative negligence is the “failure to mitigate” defense. Plaintiffs have a duty to take reasonable steps to minimize the extent of their damages. For example, if a plaintiff has a wound resulting from a crash caused by the defendant, the plaintiff must do what he or she can to allow the injury to heal. If the wound gets infected and the plaintiff fails to take the prescribed dose of antibiotics, and the infection then gets worse, the plaintiff would probably not be able to attribute the worsening of the condition to the defendant’s negligence. However, if the plaintiff follows her doctor’s orders to the letter, and the infection worsens anyway, the defendant will likely be held responsible for the entire injury.
When asserting a claim for personal injuries, the injured person bears the burden of proof. That means that in order to recover compensation, the plaintiff must prove that it is more likely than not that the defendant’s negligence caused the injuries complained of. In contrast, the defendant bears the burden of proof related to comparative negligence, which includes failure to mitigate. Thus, once the plaintiff proves he or she suffered injuries in the crash due to the defendant’s negligence, the plaintiff will then be entitled to recover for the full value of damages, unless the defendant provides evidence proving, on a more likely than not basis, that the plaintiff’s own negligence also caused the injuries.
Under the law, “comparative negligence” is considered an “affirmative defense.” Affirmative defenses are essentially “yes, but…” defense arguments. That means that the defendant agrees (i.e. “affirmative”) to the facts as asserted by the injured person, but argues that the defendant is not responsible for some other reason. There are other types of affirmative defenses not covered here, such as “assumption of risk” or various types of immunity. Assumption of risk may come into play where a person is injured bungee jumping after signing a waiver. Immunity may come into play when claims are made against government officials.
Sometimes, insurance companies will try to blame plaintiffs for their own injuries even in situations where there is no basis for a comparative negligence defense, in an attempt to reduce the amount paid out on claims. Unrepresented claimants are at risk of unfairly receiving reduced compensation because they do not know how to combat these tactics by insurance companies. Although we recommend that all injured claimants consult with a lawyer prior to negotiating an insurance settlement, advice from counsel is particularly important if you are unfairly being blamed for the incident. For a free consultation, call us at 206.624.8844.