Who’s at Fault for Your Small Claims Suit? - dummies

Who’s at Fault for Your Small Claims Suit?

By Judge Philip Straniere

The two elements of proof in every small claims court case are liability and damages. In other words, was the defendant to blame, and how much should she pay to make it right? In order to win any case, you must prove both of these things.

It’s possible to have a good liability case in which the defendant’s fault is undeniable and still have a terrible damages claim because no one was hurt. On the other hand, you can have a terrible liability case, meaning you, the plaintiff, and not the defendant, were really at fault but you suffered serious horrific permanent injuries, therefore making a great damage claim.

In both situations, winning your case will be difficult because one of the two key elements of your claim is legally insufficient.

An example of good liability/bad damages is a situation in which the defendant gets drunk and drives up on your lawn. The entire incident is not only viewed by three police officers and every religious leader in your community as they were all engaged in an ecumenical walk, it’s recorded on your security camera. Great liability case.

However, the only damages are two tire tracks on your grass, which, after your gardener rakes the lawn, disappear. Bad damage claim.

If you don’t think you can prove the liability or fault of the defendant, then you probably don’t actually have a case. If you can’t prove the defendant is at fault, you never get to the issue of damages.

Contributory and comparative negligence

Whether you’re partially to blame for an accident matters in negligence cases. Under the common law, the accident would be looked at to see which party was at fault. If it was determined that you as the plaintiff were partially at fault, you would have contributed to the cause of the accident. This is called contributory negligence and would be used to deny any recovery if you suffered an injury.

Contributory negligence means that if you engaged in actions that contributed even one percent to the accident, you’re not entitled to any recovery. So even if the defendant was 99 percent responsible and you were the only person injured, you would be denied receiving damages because your actions contributed to the accident.

Take this example: You’re leaving work at night during the worst snow storm in a decade. There’s a stop sign on the corner, but you know if you make a full stop at it, you’ll probably get stuck in the snow. Rather than do a full stop, you slowly inch your car into the intersection.

Just then the defendant, driving 100 miles an hour, backwards, on the wrong side of the road, lights off and drunk, comes around the curve and crashes into your car.

The defendant walks away unhurt. The jury finds the defendant 99 percent at fault and you 1 percent at fault, noting that had you made a full stop, the defendant would have gone past the intersection so fast there would have been no accident. Under the common law, you recover nothing because you contributed to the accident.

Most states no longer use the common law contributory negligence rule. Most states prefer the idea of comparative negligence, in which damages are reduced by the percentage of the plaintiff’s fault. So if you’re ten percent responsible for an accident and the jury awards you $100,000, the award is reduced by ten percent or $10,000, making your recovery only $90,000.

Don’t stop reading yet. This is not the end of the story. Not all states follow this rule. Some states are 50 percent states. In these states, if you’re more than 50 percent responsible for the accident, you get nothing.

So if a jury finds you 90 percent responsible and the other party only 10 percent at fault, you would be denied recovery. In a non–50 percent state, you still can recover, but only 10 percent of the damage award.

Assumption of risk

One defense to any negligence action is called assumption of risk. This means that you understood that there was some risk involved in the activity and still engaged in it. If you’re injured and sue, the defendant must establish that you were told of the risk and understood what the risk was.

Say you’re going ice skating for the first time at the skating rink. You slip and fall on the ice and break your wrist. Most juries would deny you recovery because common sense tells you that you can slip and fall on ice even if you do everything properly. A jury would conclude you assumed the risk that you could fall and get hurt when you went on the ice.

Last clear chance

Because contributory negligence resulted in such harsh judgments, the common law developed theories to lessen its impact and permit you to recover even if you were partially at fault. One of these theories is called last clear chance. The idea of last clear chance is that the court doesn’t determine who was primarily at fault but looks to see which party had the “last clear chance” to avoid the accident.

For example, you’re driving your car and see a person lying in the middle of your driving lane in the middle of the block outside the town’s favorite watering hole. You decide to run the inebriated fellow over — after all, you have the right of way and he is sleeping in your lane of traffic.

Under a strict contributory negligence theory, you could do that because the drunken fellow had contributed to the accident by being drunk, crossing in the middle of the block, and passing out in the road. Under last clear chance, however, you would still be responsible because you had the last clear chance to do something to avoid the accident by stopping your car and not running over the poor fellow.