West Virginia Negligence Guide for 2021

Negligence in West Virginia

There are many factors that can cause car accidents, including environmental conditions, malfunctioning traffic control devices, or just plain bad luck. However, the overwhelming majority of car accidents are caused by a driver being careless or making a bad decision. When someone’s negligence results in injuries to others and damage to their property, the injured party is entitled to legal recourse through which they can be financially compensated for the damages.

General West Virginia Negligence Law

The first portion of any kind of West Virginia negligence case is determining whether the defendant owed a duty of care to the injured party (the plaintiff). In terms of a car accident, this usually translates to the defendant owing to the right-of-way to the injured party. Once the duty of care is established, the court can confirm that the defendant committed a breach of duty – for instance, the defendant may have run a red light, blowing through a stop sign, or otherwise failed to yield the right-of-way when they were required to by law.

Next, the court will determine if the defendant’s breach of duty was the direct cause of the plaintiff’s injuries and property damage, and they will assess the extent of the harm. Finally, the court will establish the number of total damages, covering both tangible and intangible losses.

What Is the Doctrine of Comparative Negligence?

Comparative negligence is a law that assigns portions of the blame for an accident to various parties and still allows the injured party to claim the correlating proportion of the total damages amount, even if they were partially responsible for the accident that caused their injuries. For instance, if the plaintiff is found to be 30% responsible for an accident and the total damages amount is $100,000, they can still be compensated up to $70,000. Essentially, the defendant is asserting that they should not have to pay for the entire amount of damages since the injured party was partially at fault as well.

Most states follow this doctrine, but there are some states who subscribe to the stricter contributory negligence rule. Under this policy, if the injured party is found to be even 1% at fault in the accident that caused their injuries, they will be barred from receiving financial compensation.

Is West Virginia a Comparative or Contributory Negligence State?

West Virginia is a comparative negligence state, so even if you are partially responsible for the accident, you can still receive financial compensation. If you are doubtful about what portion of the accident was your fault, call us at Kaufman & McPherson today and we can help you decide if it’s worth it for you to pursue a negligence case.

Source: WVLegislature.gov

What Does Modified Comparative Fault Mean in West Virginia?

In pure comparative negligence, the injured party can recover financial damages even if they are up to 99% responsible for the accident, but their compensation will reflect their percentage of fault. So, if they were deemed 99% percent responsible, they would only receive 1% of the total damages.

However, West Virginia follows a modified comparative negligence law that says the injured party can only receive compensation if they are deemed to be 49% or less at fault for the accident. If they are 50% or more responsible, they will not be compensated. If the plaintiff is found to be less than half responsible, they can still receive compensation in an amount inversely proportional to their percentage of responsibility.

Why Does Accident Liability Matter?

As you may have guessed, determining accident liability matters because it directly affects who gets financial compensation and how much of the total damages each party gets. This can benefit both defendants and plaintiffs in West Virginia car accident cases, as it can take some of the burdens off a defendant if the plaintiff is determined to be partially responsible, and it can still allow plaintiffs to receive some compensation even if they were partially at fault.

Even if a car accident claim doesn’t go to court and negotiations are made only through insurance companies, modified comparative negligence laws are still followed so determining accident liability is critical. In these types of cases, the defendant’s insurance adjuster will investigate the accident and determine each party’s percentage of fault.

How to Maximize an Award in West Virginia

Obviously, in order to be eligible for any financial compensation at all, you will need to first prove that you were less than 50% responsible for causing the accident. The best way to ensure that you are successful in this endeavor is to hire an experienced West Virginia personal injury attorney.

A lawyer will help you minimize your degree of fault and receive the largest possible settlement. They will often do this by helping you collect evidence that proves the defendant’s high degree of fault. Your attorney can focus on your case while you focus on recovering from your injuries and replacing or repairing damaged property.

Should I Hire a Lawyer?

In almost all situations, it’s the best course of action to hire an attorney after a car crash. It’s particularly important in the following instances:

• You are seriously injured in a car accident and/or a loved one is killed in a crash.
• You aren’t sure whether your injury is serious, permanent, or will require long-term rehab.
• You can’t afford medical treatment for your injuries or other crash-related expenses with the settlement your insurance company is offering you.
• You missed work as a result of the crash or you cannot return to your job due to lingering injuries or permanent physical damage.
• The driver who caused the accident was uninsured or underinsured.

With Decades of Experience, We’ve Helped Thousands of West Virginians Establish Accident Liability

At Kaufman & McPherson, we have decades of cumulative experience litigating car accident cases and helping West Virginians establish liability in accident cases. If you or a loved one has recently been in a car accident, contact us today for a free case evaluation and legal advice.