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What Happens When the Victim Is Partly to Blame for the Accident?

Personal injury lawsuits are based on the concept of negligence — the person whose negligence caused the injury should be the one who is responsible for the consequences.

But what if the victim was partly to blame? Should the victim then be barred from receiving any compensation?

That might seem to make sense at first glance, but what if the victim bears only, say, 1 percent of the blame? Should that 1 percent of fault prevent the victim from receiving any compensation?

A few states don’t allow injury victims to recover damages when they contributed in any way to the accident. This legal approach is called pure contributory negligence.

Some other states allow the victim to recover damages only if the victim bears less than half of the blame for the accident. This is called comparative negligence. A victim who is less than 50 percent at fault is allowed to recover damages, but those damages are reduced in proportion to the victim’s degree of fault. For example, the compensation for a victim who is 5 percent at fault would be reduced by 5 percent.

Washington is among the states that follow what is known as pure comparative negligence. In Washington, so long as the other party bears some fault in causing your accident, you can recover damages, even if you were 99 percent at fault. But the victim's recovery is reduced by the victim's percentage of fault. So the victim who was 99 percent to blame could collect only 1 percent of his or her damages.

It may seem strange that the person who was mostly to blame for the accident can end up collecting damages from the party who bore far less of the blame. It makes sense, however, when you consider that the damages themselves can be grossly unequal. The party who bears a small share of the fault may have walked away from the accident unscathed — with zero damages. The party who bore the greater share of the fault, however, may have suffered a devastating injury that will require a lifetime of medical treatment. Shouldn’t the party who was partly responsible for that devastating injury pay his or her fair share of the costs, no matter how small?

Determining fault after an injury accident is no easy task. And making a jury understand how and why the fault should be allocated can be even tougher. If you have been injured in an accident, you need a personal injury attorney who’s up to those challenges.