THE BASICS: WHAT IS NEGLIGENCE?

When it comes to personal injury cases, you’ll hear the word “negligence” used often. What is negligence? It comes from a Latin word that means, literally, “not to pick up something.” In a legal situation, the key to understanding negligence is the “reasonable person.” A reasonable person cares about other people and acts with care for them.

Legally, a person has been negligent if they have failed to do what a reasonable person would have done in that circumstance. Reckless or careless behavior is negligence. For example, if you look down at your phone and drive through a stop sign, you might hit an oncoming car. You didn’t mean to hit the car or injure the driver, but you still caused damage. According to law, as a driver you must use sufficient care to avoid injuring other motorists, passengers in your vehicle, and pedestrians. A reasonable person would have stopped at the stop sign. You were negligent.

Often, though, negligence isn’t nearly as clear-cut as this example. The situation is usually more complex. Lawyers and judges may disagree about what “reasonable actions” would be in a specific situation. Personal injury lawyers know that the “gray area” of proving negligence is often one of the biggest issues in a personal injury case.

What happens if the defendant was not 100% at fault? What if the defendant was driving over the speed limit and hit a pedestrian, but the pedestrian was jaywalking outside of a crosswalk? In many cases, negligence is shared, divided between the plaintiff and the defendant. In these cases, it’s important to know which standard of negligence your state follows.

Comparative Negligence – Most states follow this standard for personal injury lawsuits. In this standard, the plaintiff can still seek compensation even if he or she was partly at-fault in the accident. There are three sub-types of Comparative Negligence:

• Pure Comparative Fault – Recognized by 12 states (Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, Washington), under this standard a plaintiff can be awarded damages even if he/she is 99% at fault. The recovery (money) will be reduced based on the plaintiff’s degree of negligence, but a plaintiff can still recover damages from a defendant who was lesser-at-fault.

• Modified Comparative Fault – Though this standard is recognized by 33 states, there is some disagreement about how it should be applied. In this system, the plaintiff can recover damages even if they are partially at fault, up to 50% or 51%, depending on the state. Each party (both plaintiff and defendant) is held responsible for their portion of the damages. If the plaintiff is 25% at fault, then their recovery will be reduced by 25%. If the damage was $20,000, then a 25% at-fault plaintiff will recover $15,000. However, if the plaintiff is 50 or 51% at fault, then they cannot recover any damages.

Pure Contributory Negligence – If you live in Alabama, Maryland, North Carolina, Virginia, or the District of Columbia, the legal system recognizes Pure Contributory Negligence. Under this standard, if the plaintiff is determined to be even 1% at fault in the accident – if the plaintiff was negligent even slightly, contributing to the negligence of the defendant – then the plaintiff will not be awarded any damages. They will not receive any money for compensation.

Arkansas law follows the Modified Comparative Fault standard with a 50% bar. If you’re the plaintiff, you can recover damages until your negligence is proven to be 50% or more. You can consult an Arkansas personal injury lawyer to discuss your case.