51 Percent Modified Comparative Fault: Eligibility for Compensation

Learn how insurance companies use the 51% bar to reduce or deny compensation to injury victims. Here’s how to get the settlement you deserve.

Emergency rooms treat more than 106,000 unintentional injuries every day.¹

On any given day, more than 51,000 of those treated in emergency rooms are there because of slip and fall accidents, motor vehicle accidents, or dog bites.²

Accidents happen, and sometimes we might share some of the blame for the circumstances that led to our injuries.

Figuring out who’s at fault for an accident isn’t always easy. Most states have rules that affect your compensation if you share the blame for an accident.

You can bet the insurance companies know these rules, and how to use them to reduce or deny your injury claim. Here’s what you need to know to protect yourself.

What is 51 Percent Modified Comparative Fault?

Twenty-three states apply the 51 percent comparative fault rule to personal injury claims. Insurance companies and lawyers use this legal doctrine to determine the percentage of fault each party has in causing a personal injury.

Also called 51 Percent Modified Comparative Negligence, or the “51 Percent Bar,” the rule means you are eligible to collect compensation from the other at-fault party, so long as your share of the blame is equal to or less than the other party’s share of the blame.

If your injuries are from a car accident and you live in a no-fault auto insurance state, your injury expenses will be covered by your Personal Injury Protection (PIP) coverage no matter who was at fault. 

51 percent bar rules are based on the idea that when two people share blame for an accident, the person most to blame should not be entitled to recover anything.

So if you’re hurt in an accident and it was partially your fault, you still have a right to compensation for your injuries, unless you were 51 percent or more responsible.

Your insurance claim will fail if your share of the blame for an accident is 51 percent or more. If you were 50 percent or less responsible, your claim is valid.

How the 51 Percent Bar Affects Your Payout

States with the 51 Percent Modified Comparative Fault rule:


New Hampshire
New Jersey

South Carolina
West Virginia

When your share of the blame for your injuries is less than 51 percent, you’re eligible for compensation. However, your compensation will be reduced according to your portion of the fault.

Here are some examples of how that works:

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 to her apartment. She was carrying a box she had 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 her 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 investigator determined that Stacey consumed those drinks about one hour before she came home.

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 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. The jury determined that Empire was 75 percent negligent for failing to repair the stairs, and Stacey was 25 percent negligent because she might not have fallen so badly 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 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.

Win Your Fair Share of Compensation

Insurance companies look at your negligence compared to their insured’s negligence to determine liability. Your share of  liability will make a difference in the amount your are paid for your damages.

It helps to understand some legal terms used in injury claims.

Negligence happens when a person or company fails to act responsibly or does something that creates a risk of harm to others.

Liability means fault or responsibility. The at-fault person or company is usually liable for injuries you suffered in an accident.

Damages are the financial and personal losses you suffered from an accident. Personal injury damages include medical bills, out-of-pocket expenses, lost wages, and an amount for pain and suffering.

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 the grocery store after a slip and fall.

Refusing or delaying treatment will hurt your claim. The insurance company will jump at the chance to say your injuries aren’t from the accident.

Watch what you say: Don’t apologize, make excuses, or say anything else that can be used against you as an admission of fault after an injury.

Beware of giving the insurance adjuster a recorded statement. Adjusters are trained to get you to say things they can use against you. You’re better off talking to an attorney before giving any statement after an accident.

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.

Keep a diary: As soon as possible after an accident, write down everything you remember about how you were injured. Continue to write daily notes about your treatment, pain levels, and your emotional distress. Your detailed notes will help confirm the extent of your injuries and suffering.

Don’t Settle for Less Than You Deserve

The insurance company is all about the corporate bottom line and their profit margin. They’re highly motivated to close your claim down with little or no money given for compensation.

You can get help to fight back against corporate greed. A personal injury attorney has the skills and knowledge to compel the insurance company to compensate you fairly.

Don’t wait and worry about getting the settlement you deserve. Act now to protect your claim. 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 >>