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Jul 122018
 

Negligence of the Plaintiff Will Be Considered

Whether it’s a pedestrian accident or a car or truck accident, auto injury cases in Philadelphia often involve a comparison of the negligence of all the parties. In practically every case, defendants argue that the plaintiff somehow contributed to the accident. For example, a defendant in a two car crash case in Philadelphia is likely to argue that the plaintiff failed to heed traffic laws, i.e., was speeding, failed to yield the right of way, failed to follow traffic control devices, etc.

In many cases, these defenses are completely bogus and can be disproved quite easily. In other cases, these defenses may be true and the plaintiff may be assigned some percentage of negligence. This principle is known as comparative negligence or contributory negligence. Did the plaintiff contribute to or cause the accident in any way?

When an individual who’s injured in a car accident files a lawsuit against an at-fault party, the court will assess the negligence of each of the parties. Each party bears the burden of proof with respect to their claims. If the plaintiff claims the defendant was negligent because he or she was looking at their phone, the plaintiff bears the burden to prove this fact. Likewise, if the defense claims the plaintiff was negligent because he or she was speeding, the defendant bears the burden to prove this fact. The point is that evidence becomes crucial in proving negligence of the defendant and any comparative negligence of the plaintiff.

Pennsylvania’s Comparative Negligence Law in Philadelphia Car Accident Lawsuits

Pennsylvania’s comparative negligence law can be found at 42 PA C.S.A. Section 7102(a):

General rule.–In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff. (emphasis added)

Plaintiffs who pursue personal injury lawsuits including car accident lawsuits will be subject to this law which has two key elements.

  1. Injured plaintiffs CANNOT recover damages if their negligence is greater than the negligence of the defendant(s). In other words, there’s a max amount allowed. If a plaintiff’s negligence is greater than 50%, they cannot recover at all.
  2. Any negligence that gets attributed to the plaintiff results in a pro rata deduction in any financial recovery.

These principles can be pretty complex. Below are two examples to explain how they work in a car accident case.

Example 1: Max Percent Allowed

A Philadelphia resident is walking down the street in Center City and is hit by a car as she is walking in a crosswalk with a red light for pedestrian traffic. Essentially, she is crossing the street without having the right of way. She is looking down at her phone texting a friend and doesn’t see that the pedestrian signal has turned red. A car turning right strikes her while she is in the crosswalk. The driver, who had the right of way, simply didn’t see her.

The injured pedestrian sues the driver for negligence. The driver counterclaims that she was solely responsible for causing the accident because she entered a crosswalk when it was unsafe to do so and was distracted by her phone. At trial, the driver presents testimony of an eyewitness who confirms that the pedestrian traffic signal was red and that the pedestrian was looking down at her phone when she entered the crosswalk and continued to look at her phone until she got hit by the car.

The jury assigns liability to both parties, finding that the plaintiff was 90% negligent for causing the accident and defendant was 10% negligent.

Here’s how the max liability percent principle works. Because the plaintiff’s negligence exceeds the negligence of the defendant, the plaintiff would lose the case and be barred from recovering anything. This would also be true if the jury found that the plaintiff was 51% liable and the defendant was 49% liable.

Example 2: Pro Rata Deduction

Let’s use the same example as above, but we’ll change a few of the facts. Let’s say the plaintiff-pedestrian’s signal was green, which means she had the right of way. However, she was texting on her phone before she stepped into the crosswalk, until she got hit. The driver didn’t see the pedestrian because he was distracted by a cup of coffee that had just spilled into his lap just before he turned right.

The jury returns a verdict for the plaintiff in the amount of $150,000 and finds that the defendant was 90% liable and the plaintiff was 10% liable.

Here’s how the pro rata deduction principle works. Because the jury found that the plaintiff was 10% liable, her recovery gets reduced by her share of negligence, 10%. So instead of receiving $150,000, she would receive 10% less, or $135,000.

For more info, visit the Pennsylvania Car Accident Law Library or contact our lawyers for a free consultation. Cases are handled across the Philadelphia area, including Montgomery, Delaware and Bucks County. 215.399.9255

**This website does not provide legal advice. Every case is unique and it is crucial to get a qualified, expert legal opinion prior to making any decisions about your case. See the full disclaimer at the bottom of this page.