In a recent article, we wrote about “assumption of risk,” which can arise when you’ve been hurt in an accident, but placed yourself in a dangerous situation knowingly. The person who caused the accident, or his insurance company or attorney, will say you contributed to your own injury. If their assertion is correct, and there is clear evidence to support their claim, you will most likely be looking at a reduced monetary settlement.
Assumption of risk and contributory negligence are frequently used together as a defense; however, the two doctrines are not exactly the same.
Here is the difference.
You know the driver of the car has been drinking but you get in the car anyway. He proceeds to cause a car crash in which you are injured. You assumed the risk of getting injured by getting in the car with him, even though you knew he was drinking beforehand. This is clear case of assumption of risk.
Contributory negligence is sometimes equated with partial fault, but this definition needs further explanation. Here is a case in point. A pedestrian is crossing the street outside the boundary of the painted crosswalk. A driver going over the speed limit hits and injures him. In this instance, we can say that although the injured party did not CAUSE the accident, he nonetheless contributed to his own injury by not taking proper measures to distance himself from harm.
How contributory negligence can affect a personal injury case
Contributory negligence can affect what an injured party might receive in a personal injury settlement. Usually the defendant insurance company or defense attorney will assign a percentage of fault.
The defense can suggest that any damages awarded to the injured party be reduced by an amount that represents the percentage of the victim’s fault. Using the above pedestrian accident example, if the claimant is found to have contributed 30 percent to his own injury because he assumed the risk of crossing the street outside the crosswalk, his award will be reduced by 30 percent.
Said in another way, if 100 percent of the injured person’s compensation came to $9,000, that award would be reduced by 30 percent, or $2,700. As a result, he would receive a gross settlement amount of $6,309, instead of the full $9,000.
Every case of contributory negligence is different and you will rarely find one case exactly like another. This is a very important reason why, if a defendant insurance company accuses you of contributory negligence, you need an experienced and knowledgeable personal injury attorney. Your attorney will be able to make the best deal for you and may negotiate the percentage of your portion of the fault more successfully than if you tried to do it on your own.
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