A serious auto accident is likely to result in a few different kinds of losses: property damage, medical care, lost wages. Another type of loss, which falls under what insurance companies call “general damages,” is pain and suffering. Legally, pain and suffering mean “physical, mental, and emotional distress” suffered from an accident. Obviously, injuries cause physical pain, but the depression that results from being incapacitated, stress over missing work, or embarrassment at scars are all examples from the “suffering” category. 

If the other party is entirely at fault in the accident, you are entitled to be compensated for pain and suffering. The situation becomes more complicated, however, when you are partially at fault. How does this affect your ability to recover pain and suffering (or any other) damages? The main factor governing whether you can recover damages when you are partially at fault depends on your state’s laws. There are three ways that states treat this situation:

Pure Contributory Negligence

This legal principle says that if you were at fault at all—even just 1 percent—in the accident (that is, your negligence contributed to what happened), you are not entitled to recover damages. If you think that is a pretty harsh standard, you’re right. After all, the accident that is entirely one person’s fault is rare. Maybe the other person did something really stupid, but if you had been paying closer attention or reacted more appropriately, you still could have avoided it. For that reason, very few states adhere to pure contributory negligence.

Pure Comparative Fault

As the name suggests, this principle compares the degree of fault on each side and allocates damages accordingly. If you are determined to be 30 percent at fault, for example, you would collect 70 percent of the value of your damages (that is, the full amount reduced by your share of the fault).

If you’re thinking that assigning a share of the blame is the sort of thing that can lead to arguments, you’re right. When a dispute goes to court, it will fall to the judge or jury to make that decision. In many cases, the accident investigation may be inconclusive, so having a good attorney becomes very important.

About a dozen states use the pure comparative fault principle.

Modified Comparative Fault

The final legal principle and the one used by most states is similar to pure comparative fault (as you may have guessed from the name). This approach starts by determining whether one driver is more at fault for the accident than the other. (In some states, “more at fault” means 50 percent; in others, it’s 51 percent.) The driver who is ruled to be more at fault is not entitled to collect any damages. (Obviously, in states that use the 50 percent standard, a 50/50 split of the fault means neither driver is entitled to collect damages from the other.)

Once the fault has been assigned, the claim of the driver who is less at fault is treated just as it is in a pure comparative fault state. If you are found to be 40 percent at fault, for example, you would collect 60 percent of the value of your damages as determined by the court.

So if you are wondering whether you can collect compensation for an injury if you were partially at fault for an accident, the first thing to determine is which of the three principles your state uses. From there, it’s a question of establishing the degree of fault for each party. Again, since this is a question that is likely to be decided in court, and quite possibly on the basis of an inconclusive investigation, having a good attorney is vital.

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