The process of determining fault in personal injury cases is often complex. In hard-to-prove cases, an accident lawyer or insurance adjuster will investigate the case to determine the guilty party. In most instances, at least one of the involved parties in the accident will be liable for all or part of the damages and injuries resulting from the accident.

Courts often apply the rule of comparative negligence in personal injury cases to determine

responsibility based on the carelessness of all parties involved in the accident.

How to Prove Fault in an Accident?

A plaintiff and their litigation lawyer can prove negligence using the following legal elements:

● Duty or Obligation of Care

The defendant had a legal duty or obligation to protect the plaintiff. For instance, all drivers have a legal responsibility to care for other road users.

● Breach of Duty

The plaintiff must prove the defendant failed to perform their required obligation of care by

acting in a way that caused harm to the accident victim. An example, in this case, will be

running a red light.

● Causation

The defendant’s breach of duty is directly or indirectly responsible for damages or injuries. In

this case, running a red light caused a collision that damaged the car and injured the plaintiff.

● Damages

The plaintiff suffered actual losses like vehicle damage and medical bills due to the injury.

Not all personal injury claims involve negligence. Strict liability cases where a product or

package causes injury or death do not require the plaintiff to establish fault.

The product manufacturer has a duty to prepare and package safe products, and failing to do so can make them liable for damages that arise from using that product.

In a personal injury case, the opposing injury lawyer may try to reduce or deny your due

compensation by claiming comparative fault – meaning that you were fully or partially

responsible for the accident.

Comparative Negligence Rules

There are four types of negligence rules. Depending on which kind of fault is applicable in your state, a personal injury lawyer may help you get a decent compensation, or you could end up with nothing.

Strict Comparative Negligence

With comparative negligence, both parties are partially at fault for a given accident. With strict comparative negligence, your percentage fault determines how much compensation you can seek from the other insurance company.

For example, if the court finds that you're 70% at fault for an accident, you could still recoup up to 30% of your losses.

Modified Comparative Negligence

Some states use a modified form of comparative negligence, thereby limiting your ability to

recoup losses. For example, Illinois drivers can only seek payment for their losses if the court

finds them less than 50% at fault.

There are two categories of modified comparative negligence:

● The 50% Bar Rule

The injured party receives compensation if they are less than 50% responsible for the accident; however, if they are 50% at fault or higher, they will not be eligible for any compensation. Twelve states, including Georgia, Idaho, Colorado, Kansas, and North Dakota, adhere to the 50% bar rule.

● The 51% Bar Rule

Here, the injured party gets compensation if they are 50% or less at fault for the accident but not up to 51%. This rule also reduces the amount the injured party can receive based on fault


Twenty-one states adhere to the 51% bar rule, including Texas, Iowa, Massachusetts,

Wisconsin, and Wyoming.

Pure Contributory Negligence

This form of negligence requires a driver to be 100% faultless to recoup any damages. For

states with a pure contributory definition of negligence, determining fault is all or nothing.

Even if you are 5% at fault for an accident, you cannot recoup damages under pure contributory negligence.

Only five states apply pure contributory negligence in personal injury lawsuits, including North Carolina, Alabama, Maryland, Virginia, and the District of Columbia.

Pure Comparative Negligence

A legal concept that allows the plaintiff to recover damages equal to the defendants percentage of fault even if their percentage of fault is greater than the defendants.

For example, if an injured person incurred $10,000 in damages after an accident but were 60% at fault, they would only receive $4,000 as compensation.

Thirteen states in the US currently use a pure comparative negligence system, including

California, Florida, Alaska, New York, and Washington.

Have You Been Injured in an Accident That Wasn’t Your Fault? Contact Brand Law Group to File Your Personal Injury Claim

Without a competent personal injury attorney, you may have a tough time proving fault in many personal injury cases, thus reducing your chances of getting a decent compensation for damages or injuries.

At Brand Law Group, we have skilled and experienced accident attorneys that will ensure you get the best medical care and the compensation you deserve if you have been an accident victim.

To learn more about our personal injury services or schedule an appointment, call us at (818)

230-3200 or email


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