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How Does Comparative Negligence Affect Liability in a Motorcycle Accident?

Richardson Richardson Boudreaux, PLLC

Riders love the freedom of their motorcycles. They get a thrill when they see that street rushing past beneath them. Feeling connected to the open road, they feel nothing between themselves and the joy of riding. However, they also know how dangerous riding can be. This is why they gear up with leather, a helmet, boots, and other protective gear.

Some riders push the idea and take risks. We’ve all seen that rider who makes risky lane changes or flies between cars on the dividing line. Given this, anyone who files a personal injury lawsuit has to take their own behavior into account. Just because you were the rider and you were hit by a car driver doesn’t necessarily mean the driver will be found responsible for the accident.

In general, states don’t assign complete guilt on the part of the defendant. Unless the defendant was doing something completely egregious like trying to climb out of their moving vehicle, the court is going to assume that everyone was operating rationally, and there was fault on both ends. How courts handle that fault varies from state to state. Let’s take a look at the ways courtrooms determine fault in a personal injury case.

Contributory Negligence

Some states use a contributory negligence model for personal injury cases. In this system, a plaintiff files a lawsuit, seeking damages. Perhaps they were hit by a motorcycle. The defense has the opportunity to make an argument, but they can also demonstrate the fault of the plaintiff. Maybe right before the plaintiff was hit, he threw his milkshake away, not looking where it was landing. The milkshake hit the motorcycle rider’s helmet, which caused him to lose control of the bike, and that’s why the plaintiff was hit. In a contributory negligence state, the defense may file a counterclaim, which could get the entire case thrown out.

Comparative Negligence

Other states, along with Oklahoma, use the comparative negligence model. This model requires less legwork on the part of the defense, as it can take place right there in the courtroom. There is no need to file another claim to have the case dismissed.

Comparative negligence takes all sides of the accident into consideration. It looks at the behaviors of everyone involved and assigns a percentage of fault accordingly. Let’s look at our earlier example. Yes, the plaintiff was hit by a motorcycle. However, he may not have been hit if he hadn’t thrown his milkshake.

Using comparative negligence, the court wants to decide how much each person’s actions contributed to the accident. The rider would not have lost control without the milkshake, but maybe he was speeding. What was the likelihood that he would have hit the pedestrian anyway? Judges can look at facts like this to determine that the rider was still at fault.

At this point, the judge assigns their percentages. Our fictional courtroom makes this ruling: The motorcycle rider would not have lost control if the pedestrian hadn’t thrown the milkshake, so the pedestrian is 75% responsible for the accident. However, if the rider hadn’t been speeding, he may have been able to regain control of the bike, so he is 25% responsible.

In a “pure comparative negligence” state, the pedestrian, our plaintiff, could still receive money in this judgement. Since the defendant was 25% responsible, the plaintiff may receive 25% of the total damages awarded by the court. Oklahoma does not use this system. It uses “modified comparative negligence.”

Modified Comparative Negligence in Oklahoma

Oklahoma, like most comparative negligence states, uses the “over 50” rule. When a personal injury plaintiff is found to be at least 51% responsible for the accident, they will receive no compensation. To be clear, this does not mean that they will get the total reward when they are lower than 51%. Plaintiffs in a personal injury case receive only the defendant’s percentage of the total damages.

Let’s simplify the idea:

In another motorcycle accident, the plaintiff is found to be 30% responsible, and the defendant is 70% responsible. The total reward is $30,000. The plaintiff will receive $21,000, which is 70% of the total.

Risks of Suing

One risk that you take when suing in a comparative negligence state is a countersuit. If the judge finds you, the plaintiff, to be more responsible for the accident, defendants might be able to turn it around on you. They could sue you for their legal fees or for the pain and suffering that your lawsuit caused them.

Before you attempt a lawsuit for your motorcycle injury, consider your behavior in the matter. If you were taking risks, squeezing through lanes or riding along the line, it could invalidate your claim.

Talk to a Lawyer

None of these facts should dissuade you from taking action. If you’ve been hurt while riding, you should attempt to get the justice you deserve. If you’re unsure of your percent of fault, an attorney can help you deconstruct the facts of the case. You may find that even if you did something risky, the overall injury was still not your fault.

If you’ve been hurt in a motorcycle accident, contact Richardson Richardson Boudreaux, PLLC for a free consultation. Our number is (918) 347-6456, and you can reach us online.