December 8, 2017
Many times, liability in car accidents is not in question. For example, in Ohio, if someone rear ends you, they are almost always cited for failure to maintain an assured clear distance ahead (often abbreviated as “ACDA”) codified in O.R.C. 4511.21(A). Liability is much easier to prove where the allegedly at-fault driver has been cited. That proof may come even easier where the at-fault driver has admitted to the charges or paid the fines associated therewith. In cases where liability is not at issue, the claim becomes primarily a question of damages (i.e., medical bills, lost wages, pain and suffering, etc.), which can often (though not in every case) be resolved with the at-fault driver’s insurance company without the need for litigation. See (LINK TO PI/MED MAL CONSIDERATIONS ENTRY) for more information on statutes of limitation and other considerations.
However, there are instances where liability is in question, especially where no citations have been issued. The other driver and/or his or her insurance company may dispute that it was his or her actions that caused the accident. Or, perhaps more often, they may argue that you were “comparatively negligent” (i.e., partially at fault). Ohio exercises a Modified Comparative Fault rule, meaning if the plaintiff’s liability exceeds that of the defendant, he or she may be barred from recovery. See O.R.C. 2513.33. Stated simply, if you are deemed to be 51% or more negligent, you can be absolutely barred from recovery – you get nothing. See Power v. Boles, 110 Ohio App. 3d 29, 44-45 (10th Dist. 1996). If you are deemed to be 50% or less negligent, you can still recover, but your recovery is determined according to your percentage of fault. See id. For example, if you are in an accident and suffer $100,000.00 of damages, but you are deemed to be 40% liable, you may only receive $60,000.00.
Because the percentage by which you are deemed to have been comparatively at fault may operate to bar any recovery or drastically reduce your recovery, this is often a factor to which we give significant weight when evaluating your claims and negotiating with the other driver’s insurance company. In the foregoing example, you may not be thrilled with the idea of only recovering 60% of your damages, and understandably so. However, this exposes you to some risk because, if a jury ultimately determines that you are even more at fault and, thus, assigns to you 55% of the liability, you could end up receiving nothing. Accordingly, any possibility that you could be assigned a portion of the fault may likely warrant some serious consideration.