Let’s say you’re at a Christmas party in a snowy climate. There’s some ice building up outside and your host advises you to be careful going up and down the front steps.
As you leave the party, perhaps you’ve imbibed a bit more than normal, knowing your spouse was going to be the sober driver going home. You walk down the steps a little carelessly, fall and suffer a back injury.
It turns out the steps were never salted and you prepare a personal injury claim on that basis. The property owner argues that you were warned about the steps and were tipsy on top of it.
What happens?
In most states, this will be a classic case of comparative negligence in premises liability. The courts will not only decide who was at fault, but how much of the blame each party shares. 46 states have some form of comparative negligence system for cases like these. The only exceptions are Alabama, North Carolina, Virginia and the District of Columbia.
To continue with our example, maybe you were only minorly tipsy—nothing inappropriate for a Christmas party where you weren’t the designated driver. A court would likely find that the failure to salt the steps was far more serious and that a casual “be careful” warning really doesn’t cut it.
The court might assign you 20 percent of the blame, but that still leaves you free to collect 80 percent of the ultimate damage award.
What if you were 55 percent at fault? Will the court still let you recoup 45 percent of your costs?
That depends on your state.
In states that use a pure comparative negligence system, that is exactly how it will work. But if your home state uses a modified comparative fault rule, then your share of the blame must be below 50 percent in order to collect anything.
Even if you accept that you bear some responsibility for your misfortune, that doesn’t mean you have to shoulder all of the blame. Make sure you know the legal options available to you.