Contributory fault is a legal principle that allows courts to distribute compensation for a personal injury when at least two parties share fault for the accident. Every state applies its own version of the contributory fault principle. The consequences of sharing fault for an injury accident are very different depending on the state where the accident occurred.
You can classify the various versions of contributory fault as contributory negligence, slight fault/gross negligence, pure comparative negligence, and modified comparative negligence.
Contributory negligence is the harshest form of contributory fault. Under contributory negligence, you cannot recover any compensation from the other party if you were at fault in any way. In other words, you can recover zero compensation for an accident if you were even 1% at fault, even if the other party was 99% at fault.
Legal scholars have roundly criticized contributory negligence. Only Alabama, Maryland, North Carolina, and Virginia still recognize it (the District of Columbia also uses it for certain types of cases).
South Dakota is the only state that applies this principle.; Under the “slight fault/gross negligence” standard, an injured victim can only recover damages from an at-fault party if their own fault was merely “slight” and the at-fault party’s fault constituted “gross negligence.” In judicial practice, this standard is very close to the standard for contributory negligence.
Currently, 13 states apply “pure” comparative fault, also known as comparative negligence. Under pure comparative fault, a court will assign each party a percentage of fault, totaling 100% for all parties. Each party will then lose a portion of their damages in accordance with their assigned percentage.
If your damages are $10,000 and you are 20% at fault for an accident, for example, you will lose 20% of your compensation, leaving you with $8,000. This principle of strict proportionality applies even if you are 1% at fault or 99% at fault.
Modified comparative fault works like pure comparative fault except that there is a threshold beyond which you can no longer recover compensation. In some states, the threshold is 50%. That means you cannot recover any compensation if your percentage of fault is 50% or higher.
In Oregon, however, the threshold is 51% – meaning you cannot recover damages if your percentage of fault is higher than 50% (presumably, at least 51%).
Contributory fault is an affirmative defense in Oregon. The defendant would raise this defense only after you present evidence sufficient to convince a reasonable jury that your version of events is more likely than not to be true. Not “beyond a reasonable doubt” as in a criminal case-–only more likely than not, known in legal parlance as “a preponderance of the evidence.”
Once the defendant raises the defense of contributory fault, the burden of proof shifts to them. Now they must prove their own contention—that you were partly responsible for the accident. Just as you had to prove your case by a preponderance of the evidence, they must prove their defense using the same standard.
It is said that “all bargaining takes place in the shadow of the law.” The likelihood that a court will decide your percentage of fault is relatively low. Instead, both you and the opposing party will probably agree on a number during negotiations. This number will reflect the expectation of both of you about what percentage of fault a trial court would probably assign you.
The same set of facts could get you a percentage of fault assignment of 5% or 50%, depending on how effectively your lawyer negotiates on your behalf. Following is a list of some of the factors your lawyer might use to reduce your percentage of fault or increase the defendant’s:
The foregoing list is far from exhaustive. Many more items could be added.
Suppose you stopped at a red light. When the light turned green, you did not proceed immediately through the intersection because you were fiddling with the radio dial. Meanwhile, a car rear-ended you because the driver was speeding and using drugs.
What is your percentage of fault for the car accident? 5%? 45% A lot depends on the quality of the Portland personal injury lawyer you select. Choose wisely, contact Tillmann Law Personal Injury Lawyers at (503) 272-8986 to schedule a free consultation.