Law for Non-Lawyers: Can I Recover Damages If I Was Partly At Fault?

In negligence cases, one of the first issues a personal injury lawyer considers is who was at fault.  In non-legal terms, negligence cases are those in which the injured person (the plaintiff) claims that someone else (the defendant) was not careful enough and this lack of care resulted in an injury to the plaintiff. In most Kansas and Missouri negligence cases, the judge or the jury will compare the fault of the plaintiff and the defendant (the party who was sued). Lawyers and judges use the term “comparative fault” to describe this process.  At the end of a case that goes to trial, the judge or the jury will determine what portion of the fault belongs to each party.

For example, consider a typical intersection collision. Let’s assume that John Smith was driving north on State Line Road through the intersection with 103rd Street.  Assume that Sally Jones was driving east on 103rd Street where it intersects with State Line Road.  The two drivers collide somewhere in the middle.  If John Smith ran a red light, the wreck is probably 100% his responsibility.  On the other hand, if Sally Jones was driving 95 miles per hour towards State Line Road, and John had a green light, the wreck is probably 100% her responsibility.  But, what if Sally was driving too fast and John was making a left turn, but started his turn after the light had turned red?  In that case, the jury or judge will have to determine what percentage of the fault belongs to John and what percentage belongs to Sally.

How the judge or jury divides the fault will have a big impact on how much the defendant has to pay.  Let’s assume that everyone agrees John suffered $100,000.00 in harms and losses from the wreck and that Sally has no losses.  If John is 100% responsible, he recovers nothing. Sally only has to pay for her percentage of fault.  If Sally is 100% responsible, Sally must pay the full $100,000.00.  If Sally is only 60% at fault, she only has to pay $60,000.00 (60% of the $100,000.00 in losses to John).

Can John recover money from Sally if John and Sally are equally at fault?  The answer depends on whether the collision happened on the Missouri side or the Kansas side of the state line.  In our example, the accident takes place close to the Missouri and Kansas border. If the collision happened in Missouri, John would still recover 50% or $50,000.00.  Missouri uses a system called pure comparative fault.  Everyone is responsible for their own negligence no matter how significant or insignificant their fault is. In fact, if John was 90% at fault and Sally was only 10% at fault, Sally would have to pay John $10,000.00 (10% of the $100,000.00 in losses to John).

If the collision happened in Kansas, the outcome could be very different. Kansas uses a system called modified comparative fault. Under the Kansas system, an injured person can only recover from the other party if the injured person is less than 50% at fault. If John is 50% or more at fault in our example, he loses his lawsuit.

Although many of the laws in Missouri and Kansas are very similar, there are many differences that can significantly affect the value of a case. If you have been involved in an accident and talk with an attorney, he or she will need to know where the accident happened and how it happened. If John and Sally were each 50% at fault and the accident happened in Jackson County, Missouri, John’s case would be worth $50,000.00. If the accident happened in Johnson County, Kansas, just to the west of the Missouri-Kansas border, the case would be worth nothing. If you are thinking about hiring an attorney, you need to know whether the attorney is licensed in Kansas, Missouri or both states and you need to be sure the attorney regularly handles cases in the state where your injury occurred.