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Can I be guilty of contributory negligence, even though it was clearly the other guy’s fault?

Herb: Yes.  What might appear on its face as complete liability on the part of the other driver, can quickly be negated if the other driver claims that you were also to blame and there are no witnesses to prove or disprove either account.  For example, let’s say you have a client that is driving 45 mph on a road with a posted speed limit of 35 mph.  A car pulls out from a side street or a stop sign or parking lot in front of them to make a left turn.  They hit the rear of the vehicle on the side.  Obviously, the other car pulled out in front, the client had the right of way.  That person is at fault.  They failed to yield the right of way.

However, if the other side can prove that your client was travelling over the posted speed limit, the insurance company may deny the claim for your client’s contributory negligence, even if it is only 1%. If you were going the speed limit, this accident probably wouldn’t have happened.  Even though their insured pulled out in front, your negligence may have contributed to the accident.

Another frequent scenario is when both drivers claim to have had a green light in an intersection collision.  Without any witnesses or surveillance videos, there is no way you can prove that you were the one with the green light.  In this situation, the auto insurance companies for both cars do not have to pay the property damage or injury that their insured may have caused.   It is an archaic and outdated doctrine that our legislature needs to address!

That is why it’s important, if you can, to get statements from any potential witnesses. Do not rely on the police officer.  If you have a witness in that type of case, then you’re okay.  You’re fine.

Another common example of the contributory negligence issue is a sideswipe accident.  Someone gets hit in the side, both parties always claim the other one changed lanes.  It’s always 50-50, unless you have a witness.  That’s why it’s very important to get a witness or maybe even turn on your phone and get a voice recording of the person.  They always admit fault at the scene.  I’m sorry.  I changed lanes.  But when the police get there, they tell a different story.  Maybe they had time to relax and they might think that they’re going to get in trouble or that their insurance will go up.

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