Louisiana Personal Injury Lawyer Blog
How does the law treat someone bringing a lawsuit who may be somewhat at fault for the incident? Let’s assume an injured Louisiana resident wants to sue another driver for crashing into her vehicle. In his defense, the defendant driver argues that the plaintiff failed to properly yield, and is therefore at least partly to blame for the accident.
Depending on whether the jurisdiction follows the contributory, purely contributory, comparative, or purely comparative negligence regime, the defendant may be fully liable, partly liable, or not liable at all for the damages sustained by the plaintiff. These legal tests of contributory and comparative negligence are critical for injured plaintiffs to understand, as they may decide just how much or how little one can recover from a defendant if the accident was not fully the fault of just one party. Louisiana follows a pure comparative model. Whereas other negligence regimes might bar a plaintiff from recovering damages if they are more than 50% at fault for the injuries, the Louisiana model allows a jury to award damages as long as the defendant is simply a little bit at fault.
The defense of comparative negligence is critical in products liability litigation. Recent headlines regarding the Toyota recalls reveal that the car manufacturer may already be laying the groundwork for this type of defense in anticipation of future litigation.
In a recent New York Times article written by Nick Bunkly, Toyota claims that after a San Diego man’s Prius failed to stop, an “examination showed that the car would have stopped when the driver firmly applied the brakes.” Experts in products liability litigation are waiting to see just what methods Toyota is using to make such determinations. If a court buys such argument as plausible, it may be up to a jury decide how much of the incident was the fault of the driver and how much was the fault of the car itself. Just as much an example of how expert testimony can affect the outcome of a trial, this also serves to illustrate how culpability is determined for the accident.
Just like Louisiana, California is a purely comparative negligence jurisdiction. This means that a Toyota driver’s ability to recover monetary damages for his injuries, is directly proportional to the percentage he was at fault. Even if Toyota prevails in convincing a jury that an individual driver was at least partly to blame for a particular accident, that driver may still be able to recover a percentage of damages from Toyota based on the pure comparative theory. If a jury were to find that the plaintiffís inability to press the breaks caused 75% of the damage, the driver could theoretically still recover 25% of the total cost of the damages.
All too often, would-be plaintiffs are left frustrated that their injuries are not fully compensated, even for what seems like a minor mistake on their own part. Other times they may be barred from recovery completely. The car-crash example from the beginning of this article was taken from a real story of a tragic car accident this past December in Metairie, Louisiana. According to the report, the deceased woman who sustained the injuries failed to yield as the other driver was following the speed limit. Therefore, even if her surviving family members were to bring a wrongful death lawsuit in a “plaintiff-friendly” pure comparative jurisdiction like Louisiana, a jury could reduce any recovery by the percent she was at fault, even to the point of zero.
With such a flexible system, plaintiffs must rely on the expertise of their legal counsel to analyze all the facts of the case. Minor details in any one accident could mean the difference between large and small percentages of recovery.
If you or someone you know has questions regarding an accident and seek a trusted advisor, visit our Auto Accident information page and contact the Berniard Law Firm Toll Free at 504-521-6000.