What if I was also at fault for the accident, which caused my spinal cord injury?
- March 29, 2017
Spinal cord injuries are considered a severe injury, often caused by getting rear-ended in a car accident and coupled with whiplash. Even when you are partially at fault for the accident, you can recover the damages thanks to California’s negligence laws.
Negligence and Comparative Negligence in CA
In plain words, negligence is the failure to use a reasonable amount of care in doing something and injure someone in the process. In most cases that go to litigation, there needs to prove negligence to recover damages. If you go to the grocery store and slip on some water that spilled, you can claim that the owner of the store was negligent in his duties of keeping the store clean and safe. If an injury occurs as a result of the negligence, you can file a claim to recover for damages such as medical expenses and time out of work. While the general definition stays the same, the states differentiate on the degree in which negligence is shared.
California is one of the states that uses comparative negligence. Comparative negligence is when there is shared fault for an accident. The recovery amount is the total damage amount, minus the percentage of your fault. This is often decided by an insurance adjustor or adjustors when you file a claim against the other driver’s insurance. Both your insurance and the other driver’s insurance will inspect the vehicles for damage, take photos, and examine the area in which the accident occurred to look at different road conditions and what may have caused the accident. This will help them determine who is at fault. Sometimes, the two will come to an agreement on what percentage of fault each party has, but most of the time it will come down to proving the other person is at fault in either negotiation or court.
In this case, if the other driver failed to yield at a sign and you weren’t looking and drove by, then you both are at fault for the accident, even if you share less of the blame. The other driver neglected to pay attention to and obey the road sign, and you failed to be aware of your surroundings. If you were found to be at 10% fault, and the other driver was 90% at fault, then out of total damages of $100,000, you would pay your portion at $10,000. The other driver would pay his percentage of fault, which would equal out to $90,000.
Recovering Damages From the Accident
Spinal injuries can cause a large variety of issues. It is important to note that if you started off with an initial injury from the crash, and it turns into something much bigger, you can receive compensation for the more significant injury because it was still directly caused by the car accident. This does not apply and is considered a failure to mitigate damages if you were told by your physician to wear a back brace, for example, and you do not, which results in a worse injury.
Value of Spinal Injuries
The value of your spinal injury depends on the compensable damages that you can claim, including:
● Medical Bills: Past and Future – this includes hospital bills, appointments, physical therapy, etc.
● Lost Income – a number of wages lost when you were unable to work as a result of the accident can be recovered, as well as wages lost if you are no longer able to do your line of work. The compensation will differ according to the reduction of your earning capacity due to the accident and injury.
● Pain and Suffering – This usually uses a pain multiplier between 2 and 5 to determine the total damages. The economic damages (medical bills and lost wages) would be multiplied accordingly.
● Emotional Distress – you can claim emotional distress in California. This includes loss of sleep, fear, anxiety, and any other emotional distress caused by the car accident.
● Loss of Consortium and Quality of Life – If as a result of the spinal injury, you are partially paralyzed or even completely paralyzed, you can claim for a diminished quality of life from the things you would be missing out on as a result of your injury. Loss of consortium includes the distress on family relationships in the aftermath of the accident.
The most important thing to take away is that even if you are at fault, you can recover for damages. Not every state has comparative negligence. Some do not let you recover any damages if you are found to be at fault, even if it is only a small thing. California is not one of those states, and you would receive compensation for the percentage at which the other driver is at fault.