Question: Can I still recover for my personal injury even if I caused or contributed to the accident?
Answer: You will get tired of hearing this, but it depends. Utah law requires that the you (the injured person) be less than 50% at fault for the accident in order for you to recover from someone else. This means that if you are 50% or more at fault, you cannot recover from someone else for their share of the fault in the accident. This is called “modified comparative negligence” or “modified comparative fault.” If you read anything about “pure comparative negligence” or “pure comparative fault” or “contributary fault” or “contributary negligence,” you are reading about laws outside of Utah and those laws do not apply. Let’s look at a few examples:
Example #1: Mike is driving his truck down a rural highway and is changing radio stations while driving. Jared is driving in the opposite direction. Jared dozes off, wakes suddenly, overcorrects and crashes head-on into Mike’s truck. If Mike had been paying better attention might have been able to swerve and avoid or diminish the extent of the accident. Clearly Jared has fault for the accident since he crossed over the center line and into Mike’s oncoming truck. Mike also has some fault for the accident but it is unlikely that his fault will be equal to or more than Jared’s fault. In this case, Mike would likely be able to recover from Jared to the extent of Jared’s fault but not for the percentage of Mike’s own fault. If we assume Jared was 80% at fault and Mike 20% at fault, Jared would not recover anything from Mike and Mike would recover 80% of his loss from Jared. This result does not change even if Jared’s losses are greater than Mike’s or are catastrophic– such as permanent quadriplegia or paraplegia or brain damage.
Example #2: Amy is driving her morning commute during a snowstorm and approaching an intersection where she is not required to stop but the intersecting road has a stop sign. The roads are slippery and snow-packed. Jessie is approaching the intersection and has the stop sign but because of the snow on the road, she slides into the intersection into Amy’s path. Because Amy’s car has tires that are nearly bald, she slides on the snow and crashes into Jessie’s car. If Amy had good tires, she would have likely been able to stop in time to avoid the accident. In this case, we are getting dangerously close to a 50/50 fault situation. Yes, Jessie should have anticipated that the snow would make it so that she would not be able to stop in time at the stop sign, however, Amy is driving around in the snow with bald tires and at risk to cause an accident. Who is more at fault? It’s unclear but there is a real risk that neither can recover from the other because each may be unable to prove that the other is more than 50% at fault
Example #3: Bob recently died of complications following an elective surgery. Bob was told when he was discharged from the hospital that he needed to keep the surgical wound clean and dry, to go to the hospital if his surgical wound became infected (appeared red, hot to the touch, increased pain, fluid drainage, and/or fever), and to follow up with his doctor within 5 days of surgery or sooner if there was any sign of infection. Bob was discharged to home and went fishing the two days later at a local pond where his surgical wound may have gotten slightly wet while pulling in a fish. When Bob got home, as a precaution, he thoroughly cleaned his wound, dried it out, and placed new bandages on it. The day after fishing, Bob started to feel ill and his surgical site started to look infected. It was red and had started to leak fluid. The wound did not seem to hurt any more than before and he did not have a fever. Bob did not seek medical care for the few days and then he suddenly awoke with a high fever and was lethargic. Bob was rushed to the hospital but later died following septic shock caused by a severe infection. It is unclear if the infection was contracted at the hospital during surgery or contracted at the fishing pond. The fault in this example will be a serious issue if Bob’s heirs try to sue Bob’s doctor for medical malpractice. Was the doctor or hospital at fault for causing the infection? Were the discharge instructions specific enough to inform Bob what he could or could not do following surgery or what he should do if he suspected infection? Did Bob follow the discharge instructions? Many medical malpractice claims involve a similar analysis making the comparative fault between the patient and medical provider difficult to navigate. If your case involves questions of questionable fault, get help.
Example #4: Jimmy is riding with his friend Pete in Pete’s parents’ car driven by Pete’s parents. Pete’s dad is driving and when Pete’s dad looks down at his phone to answer a call, he accidentally rolls the car severely injuring Jimmy who is not wearing his seatbelt at the time. The fault issues concern Jimmy versus Pete’s dad. The only real question is whether Jimmy is at fault for not wearing his seatbelt and whether his injuries could have been prevented by him wearing a seatbelt. There are more questions here than meets the eye: how old is Jimmy and should he be held responsible at all for not wearing his seatbelt? What if Jimmy is 18… does that make a difference? Should the driver be liable to ensure that all passengers are properly seat-belted no matter how old they are? What if Jimmy removes his seatbelt without Pete’s dad knowing about it? Does that change anything? What if Pete’s dad does not appear to be at fault despite looking down to answer the call? What if Jimmy and his parents signed a waiver of liability before Jimmy riding in the car? Comparative fault can be complex and difficult to navigate. If your case has questions of fault, get help.
Call Me. The above fictional examples or parts of them may have similarities to something that has happened to you. You likely have more questions than this post or the other information on this website can provide. Every situation is unique. If you have been injured or are the heir of someone killed in an accident, feel free to reach out to me to discuss your circumstances. You cannot make a good decision if you do not get competent advice from a qualified, experienced attorney. You need to protect yourself and your loved-ones from the often devastating effects of permanent injury or death. You do this by pursuing what you are entitled to. Call me, message me, or contact me.