Understanding Modified Comparative Fault and How it Can Affect Your Payout

Learn how injury compensation is affected by modified comparative negligence rules. Don’t let the insurance company decide your share of fault.

Modified comparative fault laws allow injured victims to be compensated based on their degree of fault for causing their own injuries, within certain limits.

Insurance companies and lawyers use this legal doctrine to determine if a partially-responsible person deserves compensation for their injuries.

These rules apply to tort cases, like car accidents, slip and falls, product liability cases, dog attacks, and other types of personal injury cases. There are also other types of liability that may apply to your case.

Most states use modified comparative fault systems. In these states, injured victims can recover compensation if they are up to 49 or 50 percent responsible for causing their injuries.

There are a few jurisdictions, like Maryland and North Carolina, with pure contributory negligence rules. In these states, you lose the right to compensation if you share any blame for an accident, even as little as one percent.

At the other end of the spectrum, a few places, like California and New York, have pure comparative fault laws, where you can pursue compensation even if you’re 99 percent to blame.

What is 50 Percent Modified Comparative Fault?

Sometimes called the “50 percent bar,” when you’re injured in a 50 percent comparative fault state, you have the right to pursue compensation from the other party, so long as they are more to blame than you. If you are equally or more to blame for the injury, your claim can be denied.

In other words, if you are 50 percent or more at fault for causing your injuries, you are barred from seeking compensation from the other party. Ten states use the 50 percent modified comparative fault rule.

States using the 50 percent modified comparative fault rule:

How the 50 Percent Bar Affects Your Payout

If you’re injured and want to pursue compensation, you can file a claim with the at-fault party’s insurance company. If you’re found to be partially responsible for causing your injuries, your compensation will be reduced by your share of fault.

In “50 percent bar” states, if you are equally (or more) to blame for your injuries, you’re barred from seeking compensation from the other party. If you are less to blame than the other party, your compensation will be reduced by up to 49 percent to account for your share of fault.

For example, if an injured claimant is 49% at fault for the accident, a claim worth $100,000 can be reduced to a $51,000 payout. If the claimant is 10% to blame, their payout would be reduced to $90,000.

Here are more examples of how the 50 percent bar rule affects compensation:

Example: Dog Bite Claim

Clara shared her tiny house in the older part of town with her seven-year-old German Shepherd, Cookie. Clara let Cookie go outside several times a day into her yard which was surrounded by a five-foot-high chain-length fence.

Cookie was in the yard one evening when Franco and some of his buddies came walking down the street. Franco saw Cookie in the yard and thought it would be funny to tease the dog.

Franco repeatedly smacked the fence with a stick and yelled to provoke Cookie. The more the dog barked and ran along the fence, the more Franco egged her on, until Cookie was snarling and snapping.

Clara came out of the house, frightened by the noise, just as Franco threw the stick at Cookie. Cookie jumped the fence to attack Franco, mauling his arm before Clara could pull her off.

Franco filed an injury claim with Clara’s homeowner’s insurance company, demanding $10,000 for his dog bite injuries, pain and suffering. The insurance company denied the claim, arguing that Franco was more than 50 percent to blame for his injuries because he intentionally provoked the dog to attack.

Because there was no evidence that Cookie would have attacked Franco without provocation, he was found to be more than 50 percent at fault for causing his injuries. Therefore he was barred from receiving compensation from Clara or her insurance company.

Example: Car Accident Claim

Johnny was late getting out of work. Driving down Elm Street, he was texting his wife to let her know he was on his way to pick up their daughter from daycare.

Carla was heading in the opposite direction on Elm Street when she made a left turn in front of Johnny. Johnny couldn’t stop in time to avoid the collision and was severely injured. He was rushed to the hospital and had emergency surgery for a ruptured spleen.

Johnny was out of work for several months as he healed from multiple broken bones and internal injuries. Johnny filed a claim with Clara’s insurance company, demanding $100,000 for his medical bills, lost wages, and pain and suffering.

Clara’s insurance company denied Johnny’s claim, arguing that Johnny was more to blame for the accident than Clara because he was texting before the crash.

Johnny hired a personal injury attorney who filed a lawsuit against Clara. Johnny’s attorney convinced the jury that Clara’s negligence was the proximate cause of the accident – it wouldn’t have happened if she hadn’t turned in front of Johnny’s car.

The jury agreed that Clara was the person most at fault for the collision, but she wasn’t the only one. The jury found that Johnny was 20 percent to blame for his injuries. They decided that if Johnny hadn’t been texting, he might have braked sooner, reducing the impact of the collision.

Johnny was awarded 80 percent of the $100,000 compensation demand. His $80,000 award represented a 20 percent reduction for his share of blame for the accident.

What is 51 Percent Modified Comparative Fault?

Also called the “51 percent bar,” this rule means you are eligible to collect compensation from the other at-fault party, so long as your share of blame is equal to or less than theirs. This is based on the idea that when two people share blame for an accident, the person most to blame should not be entitled to restitution.

Twenty-three states apply the 51 percent modified comparative fault rule. In these states, if you are 51 percent or more at fault for causing your injuries, you are barred from seeking compensation from the other party.

States using the 51 percent modified comparative fault rule:

How the 51 Percent Bar Affects Your Payout

In “51 percent bar” states, if your share of blame is less than 51 percent, you’re eligible for compensation. If your share of blame is 51 percent or above, you’re disqualified from compensation. If you are equally to blame, you can still pursue compensation from the other party.

Being equally responsible doesn’t mean both parties get the same amount of compensation. Your compensation will be reduced according to your portion of the fault.

Let’s say an Ohio jury finds Bill and Ted equally to blame (50/50) for a car crash. Bill’s injury claim is worth $100,000, so he is awarded $50,000 (50% of his claim value). Ted’s injuries were minor and his claim is worth $8,000, so he is awarded $4,000 (50% of his claim value).

Here are more examples of how the 51 percent bar rule affects compensation:

Example: Slip and Fall Accident

Stacey rented a second-floor apartment from the Empire Management Company. She called Empire’s apartment manager on five different occasions complaining about a loose step on the stairs leading to her apartment.

Returning home one evening, Stacey climbed the stairs. She was carrying a box she’d brought home from work. As she climbed the stairs, the box she was carrying blocked her view of the steps.

Stacey couldn’t see it, but the step she complained about was completely loose, causing her to fall and break her leg so badly she required surgery to pin the bones back together.

Stacey filed an injury claim with Empire’s insurance company, demanding $100,000 for her medical expenses, lost wages, and emotional distress.

After investigating, the insurance company learned Stacey met some friends at a local bar the same evening of her fall. The bartender remembered serving her three Margaritas that evening.

The insurance company denied Stacey’s claim, arguing she was intoxicated at the time she fell. The claims adjuster said her intoxication was at least 51 percent responsible for her fall, and under the 51 percent comparative fault rule, she was not entitled to compensation.

Stacey hired an attorney, who filed a personal injury lawsuit against Empire on her behalf. Stacey’s attorney convinced the jury Stacey wasn’t fall-down drunk when she was injured, even though she had a few drinks with friends after work.

The jury agreed that Empire was mostly to blame for Stacey’s injuries, but Stacey was also to blame. After reviewing all the evidence, the jury found that Empire was 75 percent negligent for failing to repair the stairs, and Stacey was 25 percent negligent because she might not have fallen if she was completely sober.

The jury agreed Stacey’s injury claim value was $100,000. Under the 51 percent modified comparative fault rule, she was awarded $75,000, representing a 25 percent reduction to her compensation for her share of negligence.

Example: Rear-end Collision

Rob was heading home from a late shift at work. As he approached the intersection, he saw the traffic signal turn red, so he hit the brakes to stop in time. Unfortunately, Rob’s tail lights weren’t working.

Within a few seconds, Rob’s car was violently slammed from behind by a pickup truck driven by Charlie. Rob suffered a broken cheekbone from hitting the steering wheel and serious back injuries.

While Rob was being transported to the hospital, the police officer on the scene arrested Charlie for driving under the influence of alcohol.

Rob notified his own auto insurance company of the auto accident, then filed an injury claim for $100,000 with Charlie’s insurance company. The insurance companies agreed that while Rob was five percent negligent for not having working brake lights, Charlie was 95 percent negligent for drunk driving.

Based on the 51 percent modified comparative fault rule, Rob settled his insurance claim for $95,000, representing a five percent reduction for his share of the blame. Charlie was barred from recovering any compensation.

Protecting Your Right to Compensation

The insurance adjuster is highly motivated to find a reason to deny your claim. Insurance companies reward employees for closing down claims quickly, for as little money as possible.

Protecting your claim begins at the scene of your injuries. Knowing what to do, and what not to do, puts you in a better position to pursue the full amount of damages.

Collect Evidence to Support Your Claim

The more evidence you have, the easier it will be to prove the other person or business was more at fault than you for what happened. Good evidence also helps tie your injuries to the accident and proves the extent of your injuries.

  • Call 911: Always call for help when you’re injured in any kind of accident. Let paramedics treat you at the scene, whether it’s on the roadside after a car crash or at the grocery store after a slip and fall. Refusing or delaying treatment will hurt your claim.
  • Watch what you say: Don’t apologize, make excuses, or say anything else that can be used against you as an admission of fault. Beware of giving the insurance adjuster a recorded statement. Adjusters are trained to get injury victims to say things that hurts their claim. You’re better off getting legal advice from an injury attorney before giving a statement.
  • Take photos: Take photographs and video of the injury location and surrounding area. Take pictures that show your injuries. Pictures of your wounds, bloody and torn clothing, or you in a wheelchair can be very compelling.
  • Locate witnesses: Witness statements can be powerful evidence of the other party’s liability. Talk to anyone who saw the accident. Get names and contact information from anyone who might help your claim. Ask them to write down everything they saw and heard.

Don’t Settle for Less Than You Deserve

The insurance company is highly motivated to close your claim with little or nothing paid for your injuries.

The insurance adjuster doesn’t get to have the final word on allocation of fault. A personal injury attorney has the skills and knowledge to compel the insurance company to compensate you fairly for your injuries and property damage.

Don’t worry about getting the settlement you deserve. Most personal injury lawyers offer a free consultation to accident victims.  There’s no obligation, and it costs nothing to contact an experienced personal injury attorney.

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>