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Looking at comparative negligence in West Virginia

Determining who is at fault in a motor vehicle accident is not always a straightforward task in personal injury litigation. This is particularly the case when there are multiple parties who contributed to the occurrence of an accident. Fortunately, the law is sophisticated enough that it has the ability to account for the fault of multiple parties, and even the relative fault of the plaintiff.

The principle that governs fault in cases where multiple parties contributed to an accident is comparative negligence. Most states recognize some form of some form of comparative fault, though the rules of the system vary. Among the states that acknowledge comparative fault, some use a pure or unmodified approach of allowing a plaintiff to recover for damages, regardless of the plaintiff’s degree of fault in the case. 

Under the pure approach, a plaintiff who is 98 percent at fault, for example, would be able to recover against a defendant or defendants for damages proportionate to their share of the 2 percent of fault. Other states use a modified approach which bars the plaintiff from recovery if he or she exceeded a minimum degree of fault.

Here in West Virginia, plaintiffs are barred from recovery if they are found to be at least 50 percent at fault for their injuries. This may not seem fair, but it is certainly an improvement over pure contributory negligence, which approach prevents plaintiffs from recovering damages if they are found to be even the slightest bit responsible for their injuries.

In our next post, we’ll continue looking at this topic and changes recently made to comparative negligence law in West Virginia.

Source: Claims Journal, “Understanding Comparative Fault, Contributory Negligence and Joint & Several Liability,” Gary Wickert, Sep. 5, 2014.

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