Can I still file a personal injury claim if I am partially at fault?

The way to think about comparative negligence is this: the idea in most states—in Kentucky and Ohio, this is true—is that you don’t only have the right to file a lawsuit when the other person is solely at fault or the other company is solely at fault. You can still file a lawsuit if you share some of the blame.

So, let’s think of a car collision. The other person has T-boned you, and they’re at fault because they may have been going too fast. But maybe you didn’t stop fully at the stop sign, and there’s a witness who says that. So, the police report kind of puts some fault on both cars. But you’re really hurt, and you know that there’s an insurance policy on the other side, so you file the claim.

Well, the way that works is if you go all the way to a jury trial, a court is going to say, “Please assign a percentage to each of the people that were involved in this based on how they’re at fault,” and the percentages have to add up to 100%. The court then says, “Okay, tell us the person who filed the suit—what are their damages?”

So, if your medical bills were $10,000, they put $10,000 on the medical bills. Now, let’s assume that they said the other driver was 75% at fault and you were 25% at fault. Well, the other driver has to pay the $10,000 in medical bills minus the 25% that you were at fault. So, they’re only paying 75% of that $10,000, which is $7,500. That’s how comparative fault affects the damages you get at trial.

Now, there’s a wrinkle to that. In Kentucky, no matter what the percentages are, you’re allowed to recover the percent for which the other person was at fault, like I just described. In Ohio, there’s a cutoff at 51%.

So, let’s say the same scenario, but this time the jury says each side is 50% at fault. With $10,000 worth of medical bills, you would recover $5,000 for the medical bills. The other $5,000 is your responsibility because you were 50% at fault.

In Ohio, you recover nothing because, under Ohio law, the other party has to be at least 51% responsible. Being 50% responsible doesn’t do anything. So, in that same scenario where you reach 50/50 at fault, the Ohio courts would say, “Well, you recover nothing.”