Contributory Negligence in Bethesda Injury Claims
Contributory negligence is the theory that if that jury finds that the injured party, the plaintiff, is even 1% at fault they are entitled to no recovery from the majority at-fault party.
Insurance companies know this, and because of it, they are looking very closely at each of the facts and circumstances of a motor vehicle accident case. They will take into account every fact when evaluating a case and decide whether to initially accept or deny liability. If the insurance company believes that the plaintiff, the injured party, was somehow contributorily negligent, or did something, small as it may have been, to cause or contribute to the accident, they are going to take that into account. This will cause them to probably either deny liability altogether or offer very little to settle the case.
When proceeding forward with a personal injury claim, make sure to hire a Bethesda personal injury lawyer in case the argument of comparative negligence arises.
Comparative Negligence
Maryland is one of the few jurisdictions left that still uses contributory negligence. Most states have some sort of comparative negligence defense in place, rather than contributory negligence. Pennsylvania is an example. Basically, in a comparative negligence jurisdiction, if the trier of fact (usually the jury) finds that the defendant was 75% at fault and the plaintiff was 25% at fault, it will reduce the plaintiff’s recovery by 25%, but the defendant still pays 75%. It is not like that in Maryland.
Common Negligence Factors
Facts that could potentially lead to a finding of contributory negligence can include a vast number of things. Examples of this could include:
- plaintiff’s texting on the phone while driving immediately prior to the accident
- playing music or changing the volume or radio station
- speeding or other reckless driving behaviors
- engaging in other types of distracted driving
Defense attorneys always ask plaintiffs about this at depositions, asking things like, “Were you using your cellphone? Did you have the radio or other music on? Were you talking to somebody in the car? Was there anything else distracting you?” They ask, “Do you know what the speed limit was? How fast were you going? Would you agree that if you were going five miles over the speed limit, that would be breaking the law,” and other questions of that nature. All of these could potentially lead to a finding of contributory negligence, thereby totally barring the plaintiff’s recovery of damages.
Last Clear Chance
In Maryland, there is a defense to contributory negligence called the “last clear chance” doctrine. The plaintiff has the burden of proving this defense once the defendant alleges contributory negligence. The “last clear chance” doctrine states that even if the plaintiff caused or contributed to the accident, he/she will not be liable if the defendant had the last clear chance, meaning the last opportunity, to avoid the accident but did not.
Important Reminders
Make sure to get treatment as soon as possible. If one fails to do so, the insurance company will most definitely bring this up as a question of credibility. One must be sure to follow through with treatment, as per the healthcare provider’s instructions, and checkup with a primary care physician as necessary.
Additionally, always be aware of contributory negligence and the fact that it applies in Maryland. It is a factor that any plaintiff’s lawyer and insurance adjuster is going to be looking at. An experienced car accident lawyer can tell whether or not there is a case, whether or not contributory negligence might be a defense that could bar recovery, and finally, how to best proceed with the case.
Statute of Limitations
The statute of limitations is extremely important. If the case goes beyond three years without filing, the case is forever barred from recovery. Some attorneys may not even take the case if it’s given to them shortly before the statute of limitations is set to expire. The clock on the statute of limitations starts from the date that the injury, or injuries, occurred. The date of the motor vehicle accident is essentially the start of the three-year statute.
Importance of Contacting an Attorney Early
When contacting an attorney, the earlier the better. Our firm offers free initial consultations, as do most plaintiff attorneys. Usually, the attorneys can tell over the phone whether or not it is a good case, and whether or not they think liability will be an issue. When your claim has been established as a good case, a contingency fee agreement (CFA) must be signed.
In Maryland, under the Maryland Rules of Professional Conduct, a CFA is required to be in writing and must be signed by the client. The contingency fee agreement says that the lawyer is entitled to 1/3 of any recovery (settlement) that is awarded before a lawsuit is filed, and that they’re entitled to 40% of whatever recovery is awarded, or whatever settlement amount is obtained after a lawsuit has been filed. If the case gets to trial and recovers nothing, then the lawyer doesn’t get anything.
Most lawyers, depending on the amount of the settlement or judgement, are willing to work with the client and will adjust their fee accordingly. This will depend on whether the case was settled out of court or went to trial, and the amount of the settlement/judgment actually obtained. Most lawyers don’t like to take more than what the client will actually net from the settlement/judgment once all outstanding medical bills and expenses have been paid.
