What to Know About Comparative Negligence in a West Virginia Personal Injury Case
In many personal injury cases, the question of who is at fault isn’t always black and white. While one party may be primarily responsible for causing an accident or injury, the injured party might also bear some share of the blame. This is where the legal principle of comparative negligence comes into play. In West Virginia, understanding how comparative negligence works can make a significant difference in whether you can recover compensation for your injury—and how much.
At Burke, Schultz, Harman & Jenkinson, our Martinsburg personal injury attorneys help injury victims in West Virginia deal with the complex legal issues related to their claim, including how comparative negligence might affect their potential recovery. If you’ve been injured and are worried that your own actions could impact your case, here’s what you need to know.
What Is Comparative Negligence?
Comparative negligence is a legal doctrine used to assign fault between parties in an accident. Rather than a simple determination of who was right and who was wrong, the judge or jury in court (or insurance adjuster outside of court) evaluates the actions of all parties involved and assigns a percentage of fault to each.
For example, imagine a pedestrian crosses the street outside of a marked crosswalk and is struck by a speeding driver. The driver may be primarily at fault for speeding, but the pedestrian could also be found partially responsible for not using a crosswalk or yielding the right-of-way. Under comparative negligence rules, both parties could share some level of blame—and the injured pedestrian’s ability to recover damages would depend on how that blame is distributed.
West Virginia’s Modified Comparative Negligence Rule
Each state chooses how it will deal with the issue of comparative negligence. West Virginia follows a system used in almost half the states in the country known as modified comparative negligence with a 51% bar. This means that you can still recover damages as long as you are not more than 50% at fault for the accident. However, your total compensation will be reduced by your percentage of fault.
Example: Let’s say you were injured in a car accident, and a jury finds that your total damages amount to $100,000. If the court determines that you were 20% at fault for the accident—perhaps because you were distracted or driving slightly over the speed limit—your recovery would be reduced by 20%. You would still be able to receive $80,000 from the other negligent party or parties.
But if your fault is assessed at 51% or higher, you would be barred from recovering anything at all. You could be as much as 50% to blame and still recover compensation, but not any amount over 50%. This makes it critical to present a strong case that clearly defines the other party’s responsibility and limits your share of the blame.
How Comparative Negligence Affects Your Claim
Comparative negligence doesn’t just apply in court—it can also play a major role during settlement negotiations with insurance companies. Insurers often try to shift blame to the injured party in order to reduce their financial exposure. If they can argue that you were largely responsible for your injuries, they may offer a lower settlement—or deny your claim entirely.
That’s why it’s important to approach your case with caution and clarity. Avoid making statements that could be interpreted as admitting fault, and do not assume that a partial mistake on your part prevents you from pursuing a claim. Even if you believe you were somewhat responsible, you may still be entitled to significant compensation.
Insurance companies often rely on recorded statements, accident reports, or even social media posts to build a case against you. Before speaking with an insurance adjuster or signing any paperwork, it’s in your best interest to consult with an experienced personal injury attorney.
Most importantly, the insurance company is not a judge and does not have the final say on who was responsible or in what proportions. You don’t need to take their word for it when they say you were partly at fault, and you probably shouldn’t. Let an experienced personal injury lawyer evaluate your case and stand up to the insurance company when they are unfairly alleging you share more of the blame than is warranted.
Proving Liability and Minimizing Your Share of Fault
Proving the other party’s negligence and limiting your degree of fault requires a thorough and strategic approach. This involves collecting evidence, interviewing witnesses, examining accident reports, and sometimes working with expert witnesses who can reconstruct the scene or explain the mechanics of the accident or your injuries.
In some cases, seemingly small details—such as skid marks on the road, security camera footage, or cellphone records—can make a substantial difference in assigning fault. Your attorney’s role is to develop a compelling case that clearly demonstrates the other party’s responsibility and challenges any attempt to blame you unfairly.
The burden of proof in a personal injury case rests with the plaintiff (that’s you: the injured victim seeking compensation). You must demonstrate that the defendant (the other party) acted negligently and that their negligence directly caused your injuries. At the same time, you may need to defend your actions if the defendant raises the issue of comparative negligence. An experienced legal team can anticipate these tactics and be prepared to respond effectively to protect your claim.
Why Legal Representation Matters
Comparative negligence is a nuanced area of law that can significantly affect your ability to recover compensation. In West Virginia, where the 51% bar rule applies, even a slight shift in fault can mean the difference between a full financial recovery and no recovery at all.
At Burke, Schultz, Harman & Jenkinson, we understand how insurance companies and defense lawyers use comparative negligence to reduce or deny claims. We build strong, evidence-based cases that tell our clients’ stories clearly and persuasively—whether at the negotiation table or in the courtroom. If you’ve been injured and fault is in question, we can help you understand your rights and fight for the compensation you deserve.
Contact Us for Help With Your Injury Claim
If you’ve been injured in an accident in Martinsburg or anywhere in West Virginia, and you’re worried that your own actions might affect your personal injury claim, don’t wait to get legal advice. Contact Burke, Schultz, Harman & Jenkinson today for a free consultation. We’ll review your case, explain how comparative negligence could apply, and help you pursue the best possible outcome.