If a plaintiff is partially to blame for the accident in which he or she was injured, the question of whether compensation is still available will depend on:
- The state where the accident occurred, as state law varies dramatically on this issue;
- The percentage of fault assigned to the plaintiff.
For example, in North Carolina, the state follows a pure contributory negligence standard, which means if a plaintiff shares any amount of blame, damage recovery is not possible. However, South Carolina follows a model of modified comparative fault with a 51 percent bar. What that means is plaintiff can collect damages – so long as his or her negligence does not exceed that of defendant.
The issue of contributory negligence was central in the recent case of Kozlov v. AWG, a consolidated appeal before the U.S. Court of Appeals for the Eighth Circuit in which two truck drivers were fighting back against the employer of a third trucker, who was killed in the fiery wreck that injured plaintiffs.
According to court records in the case, Plaintiff No. 1 was hired by a New York trucking company searching for a Russian driver with little-to-no trucking experience. Plaintiff No. 2 worked for that same company and, as a more experienced driver, was assigned to ride with the new hire and share driving duties on a New York to California trip.
The company’s policy indicated that on trips with new drivers, the more experienced driver was supposed to operate the vehicle at night. Further, if the new driver was at the wheel, the experienced driver was not to be resting in the sleeping berth of the truck.
However, both of these policies were reportedly violated at the time of the truck accident in question, which occurred on a rural highway in Nebraska. It was about 1 a.m. The more experienced driver was sleeping while the new driver was behind the wheel – traveling about 13 mph.
Meanwhile, another trucker approached from behind traveling 70 mph. There was no indication he tried to slow down or take any evasive maneuvers before impact. He rear-ended the slow-moving truck, causing his truck to catch fire. He was killed in the blaze. The other two truck drivers were seriously injured.
The inexperienced trucker was charged criminally with vehicular manslaughter and lying to investigators. However, he was only convicted of the second offense.
Subsequently, he and the other driver sued both the estate of decedent and his employer for damages.
At trial, jurors found that Plaintiff No. 1 was 84 percent at-fault. Meanwhile, Plaintiff No. 2 was 8 percent at-fault and so was defendant trucking company (being vicariously liable for the negligence of its driver, who was speeding).
Because Nebraska – similar to South Carolina – adheres to a modified comparative fault model – and the negligence of the two plaintiffs met or exceeded that of the defendant, they could not collect any damages – even though they were awarded $320,000 and $842,000, respectively.
On appeal, the state supreme court affirmed.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Kozlov v. AWG, March 23, 2016, U.S. Court of Appeals for the Eighth Circuit
More Blog Entries:
Murdock v. Thorne – Cop Injured in Crash Sues Motorists, Insurer, March 26, 2016, Greenville Truck Accident Attorney