Partly at Fault? How Ohio's Comparative Negligence Rule Works

Published July 15, 2010 · Injury Law Basics

You were hurt in a crash on Far Hills Avenue, and the other driver's insurance adjuster has already called to tell you that "both drivers share the blame." Maybe you were going a few miles over the limit, or you had started into the intersection a half-second early. Now you are wondering whether you have any claim at all.

You probably do. Ohio does not throw out an injury claim because the injured person made a mistake. It reduces the claim by the injured person's share of the fault, and it bars recovery only when that share crosses a specific line. Here is how the rule works, and why the number the adjuster assigns to you is often the most negotiable number in the whole case.

The rule in plain English

Ohio follows what lawyers call "modified comparative negligence." The rule lives in R.C. 2315.33. Stripped of the legal language, it says two things:

• Your own carelessness does not bar you from recovering damages caused by someone else's negligence, as long as your share of the fault is not greater than the combined fault of everyone else who caused the harm.
• Whatever you recover is reduced by your percentage of the fault.

Put in numbers: if a jury finds your damages are $100,000 and you were 20 percent at fault, you recover $80,000. If you were 50 percent at fault, you recover $50,000. If you were 51 percent at fault, you recover nothing.

That last point is why people call it the "51 percent rule." Fifty percent is still a winning case. Fifty-one is not. In a serious-injury case the difference between those two numbers can be the difference between a six-figure recovery and zero, which is exactly why insurance companies push so hard on it.

Who decides the percentages

Fault is not decided by the adjuster, the police officer, or the other driver. If the case goes to trial, R.C. 2315.34 requires the jury to return answers to specific written questions: the total damages, how much of that total is economic loss (bills and lost wages) and how much is noneconomic loss (pain and suffering), and the percentage of fault attributable to each person involved.

The jury looks at everyone who contributed to the crash, not just the two people in the lawsuit. The combined fault of "all other persons" is what your share is measured against. In a three-car pile-up on I-675, for example, your 30 percent is compared with the 70 percent shared by the other two drivers, and you still recover.

Before trial, of course, most cases settle. But every settlement negotiation is a prediction of what a Montgomery County jury would do with these same questions. An adjuster who tells you that you were "at least half at fault" is not reporting a fact. He is making an opening offer.

How adjusters inflate your share

In nearly every disputed-liability claim I have handled, the first fault allocation from the other side's insurer was higher than what the evidence supported. Some of the recurring tactics:

• Treating a ticket as the whole story. A citation to the other driver is good evidence, but a citation to you is not the end of the case. Officers write tickets at the scene based on limited information. Juries decide fault based on all of it.
• Quoting your own words. In a recorded statement, an injured person who says "I guess I could have braked sooner" has just handed the adjuster a percentage. That sentence will appear in every negotiation letter for the next two years.
• Blaming the motorcycle, the bicycle, or the pedestrian. Riders and walkers are presumed reckless by people who have never ridden or walked that road. The rule does not change for them, but the bias has to be confronted with evidence.
• Ignoring the other driver's violations. A driver who failed to yield, ran a red light, or followed too closely has a specific statutory duty. Some statutory violations amount to negligence as a matter of law, which I explained last month in the post on negligence per se. Those violations belong on the other side of the ledger.

What good evidence does to the percentages

Because the percentages are an argument rather than a fact, they move with the evidence. The work that shifts them includes:

• Scene investigation. Skid marks, debris fields, sight lines, and signal timing often show that the crash happened differently from the way the other driver described it. These details disappear within days.
• Witnesses. The independent witness who saw the other car run the light is worth more than anything either driver says. Finding that person early is critical.
• Vehicle damage. The location and depth of damage can show angle of impact and relative speed, which can confirm or disprove the other driver's version.
• Reconstruction. In serious cases, an accident reconstructionist can translate physical evidence into a timeline that a jury can follow. This is the kind of evidence that turns a "50/50" claim into "80/20."

Having spent 19 years as a Dayton police officer, I have investigated more crashes than I can count. The crash report is a starting point, not a verdict, and I read it with an eye for what the officer did not have time to find.

Comparative fault and your own insurance

The comparative-negligence rule applies to your claim against the at-fault driver. It also matters when you make an uninsured or underinsured motorist claim against your own policy, because your own insurer steps into the other driver's shoes and will raise every fault argument the other driver's insurer would have raised. Do not assume your own company is on your side on this question.

What this means for you

A few practical points to take from all of this:

1. Being partly at fault does not end your claim. Only a share above 50 percent does.
2. Your percentage is the most negotiable number in the case, and it moves with the evidence.
3. Do not give the other driver's insurer a recorded statement before you have talked with a lawyer. Honest, casual remarks become fault percentages.
4. The sooner the evidence is gathered, the harder it is for the insurer to inflate your share.

If a crash at a Dayton-area intersection or on a motorcycle has left you with a serious injury and an adjuster insisting you were half to blame, do not accept that number. Get it tested.