Accidents and personal injuries can be incredibly mentally taxing and stressful on top of the obvious physical pain and discomfort that is likely to accompany them. The last thing you want to be worrying about when you are pursuing a personal injury lawsuit is whether part of it is really your fault and whether there is some strange law or rule that makes it impossible for you to get the compensation you need.
Contributory negligence is a legal standard that prevents plaintiffs who are in any way at fault for their injuries from recovering damages. Fortunately, this is not the system we use in Arkansas, instead relying upon a modified version of this principle. You are not barred from getting compensation/damages if you were partially at fault for an accident, but damages may instead be reduced based on how much of the accident is deemed to be your fault. You are only blocked from recovery if your fault was higher than the defendant’s.
For help with your case, call our Arkansas personal injury lawyers at the number (479) 316-0438 and get a free case review.
What is Contributory Negligence?
Contributory negligence is a legal principle that asserts that if any part of an accident is the plaintiff’s fault, they cannot recover damages. It is an incredibly strict rule that prevents many otherwise deserving plaintiffs from getting the help they need.
Historically, this rule existed as a way to encourage personal responsibility and reasonableness. However, as previously stated, it is an incredibly draconian system, and many defense attorneys could easily win cases by pointing out the smallest role that a plaintiff had in causing their injuries. This could mean that defendants who were clearly in the wrong might get away with seriously injuring an almost entirely blameless plaintiff.
While a handful of states have continued to use pure contributory negligence, the vast majority have moved onto a comparative fault system or modified comparative fault system, which is far more forgiving to plaintiffs who may have been a little bit at fault.
Comparative Negligence in Arkansas Explained
In Arkansas, contributory negligence works differently. Contributory negligence is done away with in Arkansas in favor of a comparative fault system.
In Arkansas, “fault” is any act, failure to act, conduct, or breach of duty that is the proximate cause of the injuries pertaining to the lawsuit. “Proximate cause” is a very important legal term to understand for personal injury lawsuits. Essentially, it means that plaintiffs must prove not only that the defendant was the cause of their injuries but that the defendant was the cause of the plaintiff’s injuries. For example, suppose a defendant got cut off in traffic and then, frustrated, moved into your lane, hitting your vehicle. The defendant is the proximate cause of your injuries because they ran into you. Even though the reason they moved into your land and ultimately hit you was because another driver cut them off, the actions of the defendant-driver are what ended up injuring you.
Under Ark. Code § 16-64-122, personal injury lawsuit damages are determined by comparing the relative fault of the plaintiff to the relative fault of the defendant or defendants. Generally, this works by diminishing damages by a percentage based on the plaintiff’s relative fault. For example, if a plaintiff is awarded $10,000 in damages but is found to be 10% at fault for their injuries, the plaintiff will instead receive $9,000 in damages.
Exceptions to the General Comparative Fault Rule in Arkansas
There are some changes in the way that comparative negligence works in Arkansas. First, and probably most impactfully, the rules are much less lenient on plaintiffs who are found to be more than 50% at fault for their accident. In those cases, the rule operates like traditional pure contributory negligence rules and bars the defendant from getting any kind of damages.
Another exception is found under § 16-118-109. This provision states that victims of human trafficking cannot be found to be at fault for their injuries and, therefore, are not subject to comparative fault in Arkansas. A successful human trafficking plaintiff will not need to worry about their damages being diminished because of something they did.
Negligence in Arkansas
When discussing contributory negligence, it may also be a good idea to have a general understanding of what negligence means in a personal injury lawsuit context. In law, negligence means that somebody did something careless or irresponsible, and that action caused someone else to get injured. This is what the plaintiff must prove in court in order to hold the defendant liable and recover damages.
There are four elements of negligence that you need to prove: duty, breach, causation, and injury. A duty is simply something that one party owes to another. For example, drivers have a duty to observe speed limits and to drive safely. Breach is the act of failing to uphold that duty, say, by speeding. Injury is the fact that you are actually injured. Causation has already been discussed; you need to prove that the defendant directly caused your injuries. Finally, injury is exactly what it sounds like. You have to actually have been injured to recover damages in court.
In a contributory negligence or comparative fault context, both sides of the personal injury lawsuit are actually trying to establish negligence. So, while you are trying to prove that the defendant was negligent, the defendant’s lawyer is trying to do the exact same thing to you, with the goal of either lowering the damages that the defendant has to pay or establishing that the accident was more than half your fault and therefore not be held liable for any injuries. Our lawyers are skilled at highlighting the defendant’s negligence while minimizing any part you may have played in the accident that caused your injuries taking place.
How Do You Fight Claims of Contributory Negligence in Arkansas?
It is common for insurance companies to try to escape some of the blame by blaming victims for the accident or the increased severity of their injuries, even when the evidence does not seem to support this. However, making that argument does not prove it. Our team knows several strategies to fight contributory negligence claims. We can work with experts to explain complex issues regarding liability and review accident reports for details captured just after the accident. If we can successfully argue the “last clear chance” doctrine in your case, you can recover your full compensation even if you acted negligently.
Report the Accident
One method to fight unfair claims of negligence is to report your accident immediately after it happens so that you can record the facts about who did what early on. If you wait or do not report it at all, the defendant’s version of the incident might be the only one recorded and can set the tone for how the claim proceeds. Thus, call the police or report the accident to a property owner if injured in another’s business. If you did not have the opportunity to report your accident after it happened, our team can help you speak with the appropriate authorities.
However, be very careful what you say when reporting the accident. The investigating officer will take your statements and include them in the report, so do not apologize or accept blame in any capacity. The defendant’s attorneys will also have access to the report and will be combing through looking for things to use against you. When explaining the accident, only report what you saw and how the other person acted before, during, and after the accident. Just about any fact can become important depending on what the defense uses to blame you, so reporting the accident is critical.
Gather Expert Testimony
When the issue of liability is unclear, and the evidence from the case does not quite settle the matter, we can seek the help of expert witnesses. Expert witnesses are permitted to testify on matters they have specialized knowledge beyond the general public’s understanding. Ultimately, they can provide insights and proof by analyzing the evidence already collected.
For instance, it is sometimes difficult to tell who caused a car accident just by assessing the evidence from the scene. If there is little other evidence to support either side and liability has boiled down to each party’s word against the other’s, an expert can tip the scales in your favor. An accident reconstruction expert can breakdown the evidence to explain how fast the defendant was going, whether they braked before the crash, and other details that we can use to argue the defendant’s liability. If the insurance company knows we have an expert ready to provide these details in court, they might be more willing to back down from their contributory negligence claims.
Argue the “Last Cleat Chance” Doctrine
An exception to the contributory negligence rule is known as the “last clear chance” doctrine. The Arkansas Supreme Court created this rule, also referred to as the “discovered peril” doctrine, to give plaintiffs a fair opportunity to recover compensation when they have acted negligently if they can show that the defendant had the last chance to avoid the accident. This is a highly fact-specific analysis, so you will need legal help to confirm if the facts of your accident meet the exception’s definition.
Essentially, if the defendant could have avoided the accident after you acted negligently, your carelessness would not be used against you. However, you must show that had the defendant exercised reasonable care and prudence, they could have avoided causing your injuries.
An example will help illustrate this complex rule. Suppose you were crossing the street against a “No Walking” sign. At this point, you are negligent since you are jaywalking, putting yourself in danger of cars with the right of way. As you cross the street, a driver sees you as they turn. The driver slows but does not stop and ends up hitting you. In this scenario, we would argue that if they had simply stopped, which a reasonable driver would have done after seeing the pedestrian, they would not have injured you. Yes, you were jaywalking, but that should not matter if the defendant could have reasonably avoided the crash.
Review Medical Records
In some cases, defense attorneys make contributory negligence arguments that have little to do with your injuries. For instance, if you were injured in a motorcycle accident and not wearing a helmet, the defense will almost certainly focus on that detail. However, if you suffered a broken arm, leg, or other part of your body but your head is fine, not wearing a helmet was not a factor in your injuries. Our team can use your medical records to show that your injuries are completely unrelated to the defendant’s claims.
Talk to Our Arkansas Personal Injury Lawyers Now
Our Fort Smith personal injury lawyers are ready to hear about your case when you call us at (479) 316-0438.