Comparative Negligence Rules in Kansas Personal Injury Cases

Comparative Negligence ConceptHand turns dice and changes the expression

If you receive injuries caused by another person, you may have a personal injury claim. Examples include auto accidents, dangerous property injuries (like a slip and fall), and harm from defective products. To recover compensation, the injured person must prove the fault of the person whose actions resulted in the injuries. In legal terms, that means demonstrating the person’s negligence. In Kansas personal injury cases, negligence of the injured person is also relevant under the state’s comparative negligence rules.

What Is Negligence?

Negligence, the legal standard used to determine whether a person who causes injury to another person is at fault, is the failure to exercise the legally-required duty of care, which is the care of an ordinary person in the same circumstances. Whether a person was negligent is determined by the facts and circumstances of the accident that caused the injuries.

If a personal injury case goes to trial, the jury determines negligence issues based on the evidence introduced in court. However, most personal injury claims are resolved through settlement and do not reach the trial stage. Issues of negligence are part of the settlement negotiations between the insurance company of the person who caused the injury and the attorney for the injured person.

Importance of Negligence in Personal Injury Cases

In a personal injury case, proving the negligence of the at-fault party is one of several required elements that establish legal liability. It is a central issue in any claim.

In addition to the negligence of the at-fault party being an important issue in a Kansas personal injury case, any negligence of the injured party that contributed to the accident or injury is also relevant. The injured party’s negligence is referred to as contributory negligence.

Individual states establish contributory negligence rules that apply to personal injury actions. A few states have strict pure contributory negligence rules that completely bar recovery if there was any contributory negligence on the part of the injured party. Kansas does not have that type of rule. Instead, the state uses a modified comparative negligence rule in personal injury cases.

Comparative Negligence in Kansas

A state statute establishes the comparative negligence rule. KS Stat § 60-258a, titled Comparative Negligence, states the rule:

(a) Effect of contributory negligence. The contributory negligence of a party in a civil action does not bar that party or its legal representative from recovering damages for negligence resulting in death, personal injury, property damage or economic loss, if that party's negligence was less than the causal negligence of the party or parties against whom a claim is made, but the award of damages to that party must be reduced in proportion to the amount of negligence attributed to that party. …

Under this provision, an injured person’s contributory negligence is compared to the negligence of the at-fault party. If the injured person’s negligence is less than the negligence of the at-fault party, the injured person recovers compensation, but the amount of compensation is reduced in proportion to the amount of negligence.

Subsection (b) establishes how comparative negligence is determined in a personal injury case:

(b) Special verdicts or findings required. When the comparative negligence of the parties is an issue, the jury must return special verdicts, or in the absence of a jury, the court must make special findings, determining the percentage of negligence attributable to each party and the total amount of damages sustained by each claimant. The court must determine the appropriate judgment.

If comparative negligence is an issue in a case (meaning that there is evidence of the injured person’s contributory negligence), this subsection requires a jury or judge to make findings that assign a percentage to each party’s degree of negligence and apply the same percentage to the damage award.

In practical terms, the comparative negligence rule means that an injured party recovers compensation only if their own contributory negligence (fault) is less than 50%. It also means that the amount of compensation for the injured party is reduced by the same percentage as their contributory negligence. For example: If an injured party’s own negligence is 10% at fault in causing the accident, and they have $100,000 in damages, they recover $90,000. (Ten percent of $100,000 equals $10,000, which is deducted from the total.)

Effect of Comparative Negligence Rule on a Personal Injury Case

The comparative negligence rule (which is also sometimes called the comparative fault rule) has a significant impact on any Kansas personal injury case. The at-fault party always tries to assert and prove comparative negligence of the injured party as a defense, in order to minimize the amount of compensation or provide a basis for denying compensation completely.

The insurance company for the at-fault party does everything possible to show comparative negligence, including getting the injured person to make statements that demonstrate their own negligence. For that reason, an injured person should never talk to the insurance agent for the at-fault party.

If you receive injuries that may be the fault of another person, the comparative negligence rule is one of the most important reasons for getting legal representation and having your personal injury attorney handle all discussions and negotiations with the insurance company. If you talk with the insurance agent, you could innocently and unintentionally make a statement that the agent can use against you to deny or substantially reduce the amount of your recovery.

If you may have a personal injury claim, you should not attempt to analyze negligence and comparative negligence on your own. That evaluation involves collecting and analyzing evidence in the case, then applying complicated legal principles to reach conclusions about the negligence and contributory negligence of the parties. A lawyer has the knowledge and experience to make those judgments, which is another reason why legal representation is essential in a personal injury case.

Talk With a Kansas Personal Injury Attorney

The accident and injury attorneys at Sloan Law Firm have the right experience and knowledge to help you handle all aspects of a personal injury claim, including issues relating to negligence and contributory negligence. From our offices in Topeka and Lawrence, our lawyers assist clients throughout the state. We invite you to contact us by calling (785) 357-6311 or using our online contact form.

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