Can I Recover if I Was Partly at Fault for My Injuries?

Sometimes, things in life are not as black and white as we might hope. The truth is often colored in shades of gray, which can create issues based upon a particular person’s perception.

The same can be true in the legal system. For instance, criminal liability sometimes turns on whether a defendant’s actions constituted prohibited criminal conduct or permissible self-defense. In other words, the prosecution and the defense see the same set of facts quite differently.

And in civil personal injury cases, there is often a question of whose conduct caused an injury. Sometimes, liability is so clear that the parties agree, or a jury decides, that one particular party is totally responsible. But in many cases, it’s not so black and white – the facts demonstrate that both parties share a portion of the blame for the accident and the resulting personal injuries.

That brings us to the question raised in this blog – can a person who is partly responsible for his or her own injuries still recover damages?

The Inequity of Contributory Negligence

There was a time when a plaintiff who was partly at fault for his or her injuries could not recover under any circumstances. This theory developed under the common law in England and is called “contributory negligence.” It essentially means that if the plaintiff contributes to his or her accident, he or she cannot recover any damages.

For example, consider a woman, Sarah, who is driving 2 miles per hour over the speed limit and is struck by a semi-truck with a malfunctioning braking system caused by negligent maintenance. Sarah is 2 percent at fault and the trucking company is 98 percent at fault. In a classic contributory negligence system, Sarah would be barred from recovery.

Most people would agree that this is not a fair result.

The Rise of Comparative Negligence

As a result of the perceived unfairness of the contributory negligence rule, the theory of “comparative negligence” evolved. When comparative negligence rules are applied, a plaintiff who is partly responsible for the accident can still recover. The plaintiff’s negligence is compared to the defendant’s negligence and the plaintiff’s recovery is reduced by the percentage of his or her negligence. In our example above, if the plaintiff suffered $100,000 in damages, she would be responsible for 2 percent, or $2,000, which would be deducted from her recovery. Thus, she would only recover $98,000. 

But let’s take our example one step further. What if the trucking company sues Sarah? After all, she was 2 percent responsible. Can the company recover and then have their recovery reduced by 98 percent? It could happen under a pure comparative negligence theory. However, most states have adopted modified versions of comparative negligence, which prohibit a party from recovering if his or her negligence exceeds a 50 or 51 percent threshold, depending on the particular state.

Comparative Negligence in Oregon

Comparative negligence in Oregon is governed by statute. A plaintiff who is partly negligent can recover if his or her negligence is not greater than the combined negligence of the following:

  • any party against whom the plaintiff seeks recovery
  • third-party defendants who are liable in tort to the plaintiff
  • the fault of anyone with whom the plaintiff has settled

Thus, in our example, the trucking company could not recover against Sarah in Oregon because its negligence exceeds Sarah’s negligence.

Call with Questions

The Oregon personal injury lawyers at Nelson MacNeil Rayfield have experience in injury cases ranging from semi-truck, automobile, motorcycle and bicycle accidents to medical malpractice, premises liability, asbestos liability, dog bites, products liability, and elder abuse. If you give us a call with questions about your accident, we’d be happy to answer them.

Remember, even if you believe you were partly liable for your injuries, there are many times when the law will still support your recovery. We are familiar with these rules and can help you evaluate your rights.


Call us at 1.877.928.9147 For A Free Consultation!

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