“WHO’S AT FAULT?”
November 29th, 2017 | Michael A. Lombardo, III
- A truck speeding on the highway on a sunny day crashes into a back of a car traveling in the same lane at the speed limit.
- A truck speeding on the highway at night crashes into the back of a car traveling in the same lane at the speed limit. The car, which didn’t have functioning brake lights, had slowed down abruptly.
- An elderly woman, while walking at night, falls when her cane gets stuck in a hole in the sidewalk.
- A 12-year old trips and falls on an uneven sidewalk while texting.
- A 19-year old skateboarder sustains a serious head injury when he uses a driveway entrance as a ramp to jump onto a neighbor’s sidewalk, which was riddled with cracks. The skateboarder was under the influence of drugs, and not wearing a helmet.
Who is at a fault in each scenario? That’s a question for a judge or jury. Or, for opposing attorneys negotiating a settlement in a personal injury lawsuit. The “answers” to these questions can mean the difference between a substantial award or no award at all.
Personal injury cases, including falls and motor vehicle crashes, are usually based on the legal concept of negligence. “Generally speaking, negligence constitutes a failure to use reasonable care”, notes HKQ Personal Injury Attorney Michael Lombardo. To prevail on a negligence claim, one must prove four elements:
- The defendant owed a duty toward the plaintiff
- The defendant breached his or her duty
- The defendant's breach was the cause of another's injuries
- The plaintiff suffered actual injuries for which damages may be claimed
All drivers owe each other a duty of reasonable care when operating a motor vehicle. For example, a driver must operate the vehicle at a reasonable speed. If there are hazardous road conditions, that speed may be substantially under posted speed limits. (Hence, the “conditions permitting” on signs.)
In the case of property owners, Pennsylvania law imposes a duty on the owner of real estate abutting the sidewalk to keep the sidewalk in good condition and repair. For example, the property owner must correct a known problem in the sidewalk, such as missing/broken concrete.
Contributory / Comparative Negligence
A defendant in a negligence case may claim that the actions of the person bringing the lawsuit contributed to the event that caused the injury. Prior to 1976, the doctrine of “contributory negligence” prevented a plaintiff in Pennsylvania from recovering monetary damages even if his or her negligence was minuscule compared to that of the defendant.
Because contributory negligence led to some inequitable results, a majority of states, including Pennsylvania replaced it with an alternative called “comparative negligence”. The doctrine of comparative negligence reduces a plaintiff's recovery by the percentage in which the plaintiff is determined to be at fault. For example, if the plaintiff is 20% at fault, the damages would be reduced by 20%. In Pennsylvania, the plaintiff's portion of fault must be less than 51% or he or she will not be able to recover damages. Comparative negligence can be extremely complicated in collisions involving more than two vehicles.
Special provisions come into play if the injured parties are minors. In Pennsylvania, there is a conclusive presumption that minors under seven years of age are incapable of contributory negligence. Minors between the ages of seven and fourteen years are presumed incapable of negligence, but the presumption is a rebuttable one that weakens as the fourteenth year is approached. Minors over the age of fourteen years are presumptively capable of negligence, with the burden placed on the minor to prove incapacity. In Pennsylvania, persons 18 or older are considered adults, and can be held liable for negligence or contributory negligence.
If you or a family member has suffered a serious injury, call HKQ Law at (800) 760-1529 to schedule your no-obligation consultation. Our personal injury attorneys are highly experienced in cases involving negligence and comparative negligence, and will help you get the justice you deserve.