Indiana Comparative Fault - Foley & Small
At Foley & Small we believe it is important that our clients understand the rules of law that will be applied to their case. It is in our clients’ interest to be well informed so they can make the best decisions as their case moves forward.
Comparative Fault Cases
Comparative fault is the law in Indiana we apply to most claims for personal injuries or for damage to property. Aptly named comparative fault describes the process a jury engages in to determine a person’s recovery on a personal injury or property damage claim. A jury will be asked to compare the fault of the different parties involved to reach a verdict.
Let’s take an example, let’s say your involved in a two-car auto accident. There are two oncoming cars and the other car turns left in front of you causing the collision. In such a case, the other driver would certainly be primarily at fault. But it is also possible that the other driver will try to put some blame on you saying that if you had been paying more attention or had not been speeding, if you were, you might have been to avoid the collision. If your case were to go to trial, the jury would hear your testimony, the testimony of the other driver and the testimony of any witnesses, see photographs of the vehicles and of the accident scene, and perhaps hear testimony from an accident reconstructionist. The jury would them be asked to assess who was at fault in causing the collision. In doing so, a jury will be instructed by the judge that they need to allocate fault on a percentage basis between the parties and that percentage needs to add up to 100%. In this case, a jury may find that you are not at fault at all and the other driver 100% at fault, or the jury might give you some fault and perhaps conclude that the other driver was 80% at fault and you were 20% at fault. It would be up to the jury to decide what those percentages would be.
For you to recover as a plaintiff, you must show that you were not the primary person at fault in causing the accident. If a jury were to conclude that you were 51% at fault or more in causing the accident, in other words that you were the primary person causing it, you recover zero under Indiana law. You can recover as a plaintiff when the other parties involved are found to be 50% or more at fault.
Let’s continue with the hypothetical, and let’s say a jury finds that your damages were $100,000.00 for your medical bills, loss of pay, pain and suffering and for any permanent injury you might have had. The jury would then take the percentage of fault they allocated to the other driver, the defendant, and multiply that by your total damages. So, again, if a jury were to conclude the fault allocation should go 80% to the other driver and 20% to you, they would then be instructed to take that 80% fault allocation given to the other driver and multiply that by the value of your total damages, which was $100,000.00. In other words, 80% multiplied by $100,000.00 would make your recovery $80,000.00.
That’s how comparative fault works. It works like the name sounds, a jury compares the fault of the parties involved to determine who is going to recover and what amount they will recover.
Contributory Negligence Cases
One last thing to mention is that while comparative fault applies to most cases, there are two areas under Indiana law that comparative fault does not apply. Those are claims arising under the Indiana Tort Claims Act and under the Indiana Medical Malpractice Act. Claims under the Indiana Tort Claims Act are those by a private citizen against the State of Indiana or one of its political subdivisions, such as a town, township, county or school corporation. Claims under the Medical Malpractice Act are those against doctors, hospitals and other healthcare providers. In those two instances, the old law of negligence, which we call contributory negligence, applies. Contributory negligence is a harsh doctrine. Under it, a jury is instructed that they are only to award a verdict in favor of a plaintiff if they find that the plaintiff was not at fault at all in causing the accident or incident. If the jury finds that a plaintiff is only slightly at fault, say 1% or 5% at fault, then the plaintiff is not to recover anything. It’s an all or nothing allocation of fault and, as it sounds, provides an advantage to a defendant and often leads to very unfair results where you have a defendant who is overwhelmingly at fault and the plaintiff would recover nothing even though the plaintiff’s fault was very, very little.
In these contributory negligence cases, juries often will still do the right thing and that is still find for the plaintiff even if they think the plaintiff was somewhat at fault, but still, the law of contributory negligence is an advantage to the defense in claims under the Indiana Tort Claims Acts and the Indiana Medical Malpractice Act.
Foley & Small can help
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