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Can You Recover Compensation for Car Accident Injuries in WV if You are Partly at Fault?

WV Car Accident Attorney discusses comparative negligence law and auto accidents.  Yes, in West Virginia, if you’re injured in an accident that was partly your fault, you may still have a personal injury claim.  However, if you are 50% or more at fault you probably don’t. West Virginia has adopted the modified comparative negligence doctrineBradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979). Under this doctrine, a claimant’s action is barred if his or her negligence equals or exceeds the combined negligence of all the other parties involved in the accident. If the claimant is less than 50% at fault, his or her recovery is reduced in proportion to his or her degree of negligence.

For example, consider the auto accident hypothetical below:

Suppose you are driving down the road five miles over the speed limit and suddenly another car swerves into your lane and hits your car.  You then file suit and and your case goes to trial.  The jury finds that you were 10% at fault and the other driver was 90% percent at fault.  The jury also finds that your damages are $100,000. Under the modified comparative negligence approach, you would recover $90,000 (90% of your damages), which is proportionate to the other drivers fault.

If the jury had decided that you were 50% or greater at fault, you would have recovered nothing, and, in fact, the other driver would have likely had a personal injury claim against you.  On the other hand, if the jury had decided you were 49% at fault and the other driver was 51% at fault you would have recovered $51,000 and the other driver would have recovered nothing.

Is the modified comparative negligence doctrine the best approach?

Although it’s easy to see how West Virginia’s modified comparative negligence approach can be problematic when it’s a close call as to who is at fault, other approaches are even more problematic and can result in harsh, unfair results. For example, the draconian contributory negligence rule states that if you are at fault to any degree (even 1%) then you cannot recover in court. The pure comparative negligence approach can also be problematic because it allows an injured person to recover so long as he or she is less than 100% at fault.  Thus, most parties involved in a car accident could be a plaintiff.  For example, in the above scenario, even though you were only 10% at fault, if West Virginia followed the pure comparative negligence approach, the driver who swerved into your lane could potentially sue you and recover 10% of his damages.

There are a number of other issues that could affect your claim and how a West Virginia court will apply the modified comparative negligence doctrine.  For example, proximate cause is still a requirement to recover damages, and comparative negligence is not an available defense in intentional tort cases.  Thus, it’s advisable to consult with an experienced West Virginia personal injury lawyer to evaluate your case. Your comments and opinions about the different approaches mentioned above are appreciated.


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