Comparative Negligence and Personal Injury Cases in Kansas

If you suffer injuries from an accident caused by a negligent party in Kansas, gaining compensation is likely a little more complex than you would have hoped.

Even if you can file a valid claim and believe you can prove fault, personal injury law can be confusing when it comes to “contributory negligence”, “comparative negligence” and “modified comparative negligence”.

Each state has different rules and jurors are not always sympathetic towards the damaged party. Add to this the fact that insurance companies are out to protect their interests (not yours!) and you may have a fight on your hands to get the compensation you deserve.

It helps to have the assistance and advice of an experienced Kansas personal injury lawyer — not only to expedite your compensation claim but to explain what to expect from the legal hurdles along the way.

Insurance companies often play hardball with car accidents, slip and fall injuries, defective product claims and so on. It’s best to work with a personal injury lawyer who is ready for their strategies.

To recover compensation after an accident in Kansas, the injured person must prove the fault (“negligence”) of the person whose actions resulted in his/her injuries.

Negligence is the legal standard used to determine whether a person who causes injury to another person is at fault.

To prove negligence, we must consider what an ordinary person would have done in the same circumstances. Proving negligence is central to any personal injury claim, as it is one of several elements that need to be proved to establish legal liability.

For instance, road users have a duty of care to other road users and must exercise this by obeying the road rules. If a driver contravenes the road rules and causes an accident, he or she may be considered negligent because of the failure to exercise the appropriate duty of care.

Most personal injury claims are resolved through out-of-court settlements before they ever make it to trial but unless you can prove negligence, your argument for compensation may be weak and the insurance company may sense this and try to shift liability onto you.

The more evidence you have to prove negligence, the stronger your position.

If the case goes to trial, the jury determines negligence based on the evidence provided by both sides.

The “comparative negligence” rules that apply in Kansas personal injury cases mean that even if part of the negligence is apportioned to the injured person, he or she may still have a claim.

This differs from a few other states where any contributory negligence on behalf of the injured party means that no claim for compensation can be made.

Kansas, like the majority of states in the country, uses the “modified comparative negligence” or “proportionate responsibility” model of negligence in personal injury cases. However, not all states apply it the same way.

In Kansas, the “50 percent bar law” means that the plaintiff cannot claim for recovery of damages if he/she holds 49 percent or more accountability for the accident.

If the accident victim contributes 50 percent or less of the fault, he/she retains the right to file a claim for damages. The award will be reduced in proportion to the amount of fault attributed to the plaintiff.

The “pure comparative negligence” law applies in many states, whereby the plaintiff can claim damages even if he/she is 99 percent at fault for the accident that caused his/her injuries.

However, it does not apply in Kansas and the law has been criticized in some quarters for allowing at-fault parties in accidents to claim damages from less at-fault parties.

As well as “comparative” and “modified comparative” negligence, you may hear the term “contributory negligence” concerning a personal injury claim. This can get confusing for anyone trying to find out about personal injury law in Kansas.

Let’s take a quick look to explain these terms clearly…

• If you are injured in an accident in Kansas and you were 50 percent at fault, you cannot claim for damages — though you could file a claim if the accident occurred in other modified comparative negligence states that apply the law slightly differently.
• If you are injured in an accident in Kansas and the jury finds you 25 percent at fault for the accident and awards you $100,000, you would receive $75,000 after the 25 percent was deducted for your portion of the negligence.
• If the same accident occurred in a pure contributory negligence state (there are only four remaining in the U.S. plus the District of Columbia) the defendant will not pay you a cent in compensation if you share even one percent of the fault for the accident that caused your injuries.

Under the modified comparative negligence laws in Kansas, providing your lawyer can demonstrate that you are no more than 49 percent responsible for the incident that led to the injury, you can proceed with a claim for damages.

However, any award you receive at trial from a jury will be reduced by the amount of fault apportioned to you.

Kansas also adopts the pure several liability system. This means that each defendant only pays an amount according to his/her degree of fault for the negligent act.

Accordingly, if you were involved in an accident involving three motorists but you could only trace two of them to sue, the jurors might find that the two defendants are responsible for two-thirds of the compensation and the other motorist one-third (which you will never receive). So, an award of $150,000 would only result in a payment of $100,000.

Also, bear in mind that noneconomic damages in personal injury claims in Kansas are limited to $250,000 for the plaintiff (these are damages for pain and suffering, loss of quality of life, etc.)

If you settle out of court, your negotiating position with the insurance company will be somewhat weakened if you share in the fault for the accident.

Your best chance of receiving the compensation you are due — in or out of the courtroom — is representation from a skilled and experienced personal injury lawyer who knows the system here in Kansas.

If you are considering filing a claim, book a free case evaluation with a personal injury lawyer at ITR Law in Topeka, during which we will advise you of your legal options.