In a previous blog entry regarding the legal doctrine of contributory negligence and the recent Indiana State Fair tragedy, I mentioned that the law of contributory negligence applies to all claims against state or local governments, regardless whether the claim arises from a city garbage truck that runs a red traffic light and causes a car wreck, or to the negligence of State Fair officials who, among other things, apparently failed to make sure that an outdoor stage could withstand a 70 mph wind gust. In all claims against a governmental entity, the concept of joint and several liability also applies, which states that if a governmental entity was only even partially responsible for an accident, the government, or eventually their insurance company, is responsible for all damages regardless whether other individuals may also have been partially at fault.
While this doctrine at first blush sounds like a lawyer’s dream, there is a big catch, so to speak. Specifically, this legal doctrine also says that if the injured person was partially at fault or negligent to even a small degree, any financial recovery is barred. So, for example, if a motorist is involved in a car wreck with a city garbage truck that disregarded a red traffic signal, if a jury were to determine that the injured person was 5% responsible for the wreck because they didn’t get out of the way fast enough, any financial recovery for that person’s injuries would be totally barred.
Prior to 1989, the doctrine of contributory negligence and joint and several liability applied to all injury cases, not just to claims against state or local government. Because of the harsh effect of this law when claimants had only a small percentage of fault for an accident, in 1989 Indiana’s legislature enacted the Comparative Fault Act. This new law provided that instead of preventing any recovery when the injured person was also negligent, comparative fault would reduce their financial recovery but not bar it totally unless the injured person was more than 50% responsible for their accident.
Thus, in a car wreck case for example, if the injured person was 20% responsible for the accident and the other driver 80%, the damages that the injured person would be entitled to collect would be reduced by 20%. Similarly, if the claimant was 30% responsible or at fault for the accident in question, the monetary damages that they would be entitled to collect would be reduced by 30%. However, if the injured person was more than 50% responsible for the wreck, they would collect nothing.
In both comparative fault and contributory negligence claims, when a person is determined to be “at fault” or “responsible” for an accident, this means that their conduct was negligent, which is defined under Indiana law as the failure to do what a reasonably careful and prudent person would have done under the same or similar circumstances.
Currently, the doctrine of contributory negligence applies only to governmental entities, and oddly enough, to health care providers in medical negligence claims. Comparative fault applies in all other types of claims, such as car wrecks, construction accidents, and fall cases.
As these legal doctrines and their application to a particular case can be complicated, the best advice is to discuss your claim with an experienced lawyer. As the consultation is free, there’s no downside with having a good understanding of your legal rights.