In general, yes. Automobile collisions, the area in which many personal injury actions arise, provide a good example of how the concept of negligence works in our tort system. Tort law with respect to auto accidents works differently depending upon the state in which you live. That is because some states are "fault" states and others are "no-fault" states.

In a fault state, you have a negligence claim if you are injured by a driver who failed to exercise reasonable care, because drivers have a duty to exercise such reasonable care anytime they are on the road. When they breach that duty and your injury results, personal injury law says you can recoup your losses.

In a no-fault state, the insured person's insurance carrier pays for the insured's damages, no matter which driver was at fault.

I was in a car accident, but it was partly my fault and partly the other driver's fault. Will this make a difference with regard to what damages ultimately are awarded?

Yes. In the past, the rule was that if you could prove the other driver contributed in any way to the accident, he or she could be totally barred from recovering anything from you. But now, most states have rejected such harsh results and instead look at the comparative fault of the drivers. If a jury finds that you were negligent and that your negligence, proportionally, contributed 25 percent to cause your injury and that the defendant was 75 percent at fault, the defendant would be responsible for only 75 percent of your damages, or $75,000 if your damages totaled $100,000. In some states, a plaintiff may recover even if he or she were more negligent than the defendant--that is, negligent in the amount of 51 percent or more. (See the sidebar on "Comparative and Contributory Negligence" below and chapter 11, "Automobiles," for more on standards of negligence for car accidents.)

Comparative and Contributory Negligence

There are different systems of negligence law in American jurisprudence. The traditional system used to be contributory negligence. Under contributory negligence, a plaintiff could not recover any damages if he or she contributed to his or her injuries (was contributorily negligent). Although there were some common-law doctrines that lessened the impact of this doctrine, this doctrine was seen as providing a harsh all-or-nothing outcome. It was all-or-nothing, because a plaintiff could recover all the damages (if considered not negligent) or no damages at all (if determined contributorily negligent).

The vast majority of states have switched to a system of comparative negligence to avoid the all-or-nothing rule of contributory negligence. Most states did so legislatively. In other words, the state legislature passed a law saying that comparative negligence is the law of the land. But, in a minority of states, the state's highest court (usually called the supreme court) made the change. Under a system of comparative negligence, a jury compares the actions of the parties and then allocates fault between the plaintiff and the defendant. A defendant is obligated to pay only the amount of damages caused by his or her own negligence. So if you're the plaintiff and the jury finds that your own negligence caused 20 percent of the damage, then the defendant would only be responsible for 80 percent of it. To put it another way, your recovery is reduced by your own percentage of negligence.

Most states switched from contributory to comparative negligence between 1969 and 1992. Tennessee became the forty-sixth state to adopt comparative negligence in 1992. Four states (Alabama, Maryland, North Carolina, and Virginia) still use contributory negligence.

There are different types of comparative negligence. Under a "pure" form of comparative negligence, a plaintiff can recover no matter how negligent he or she was. In other words, if a plaintiff suffered $10,000 in damages and was 80 percent at fault in a pure comparative negligence system, he or she still could recover $2,000 ($10,000 – $10,000(.80) = $2,000).

Under a "modified" or "50 percent" system, a plaintiff must be either equal to or less than 50 percent at fault in order to recover. In some states, the plaintiff's negligence must be less than 50 percent. In other states, the plaintiff's negligence must be 50 percent or less in order to recover.

A neighbor who rides with me to work was injured when I got into a car accident. Do I have to pay her medical bills?

In many states today (about half), no-fault automobile insurance would protect you--and often passengers in your car--by compensating those injured up to a specified level, regardless of who was at fault in the accident.

A few states still have automobile guest statutes, although there is a strong trend away from them. Many of these statutes have been repealed by legislatures or ruled unconstitutional by courts. These statutes make drivers liable for injuries to nonpaying or guest passengers only if the drivers were "grossly negligent" by failing to use even slight care in their driving. In jurisdictions that still have such laws, the parties often litigate over whether the passenger was a guest. A neighbor also may be able to recover from you under ordinary negligence principles if she can prove that she was not a guest passenger by showing that both of you agreed to share expenses.

Courts also have held a driver liable for the negligent operation of a car and for harm caused by known defects, but not for injuries caused by defects in the vehicle about which the driver had no knowledge.

I sustained an injury when the bus I ride to work was involved in an accident. Is the bus company at fault?

Most likely. Common carriers--bus lines, airlines, and railroads (even elevators and escalators in some states)--owe their passengers "the highest degree of care" and are held to have a special responsibility to their passengers. Common carriers must exercise extra caution in protecting their riders and do everything they can to keep them safe.

Whether you win your case will depend on the circumstances of the accident. Did the driver pull out in front of a car and have to slam on the brakes? What were the road conditions? A jury will have to consider those factual circumstances to determine if your driver acted negligently. But as an employee of a common carrier, the driver must provide you with a high degree of care. (If the bus were hit by another car, the other driver also may be liable for your injuries.)

My car sustained damage when it hit a pothole on a city street. Can I recover from the city?

Some cities have pothole ordinances, a form of immunity that releases them from any liability for pothole accidents, except where they had prior notice. Whether you can recover will depend on your city's law controlling liability and its immunities against suits. For instance, some states have governmental tort liability acts, which sharply limit suits against governmental bodies.

I was in a car accident during my pregnancy and my baby was born with a deformity as a result of injuries from the accident. Does my child have any legal recourse?

Many states today will permit a lawsuit by a child for the consequences of such prenatal (before birth) injuries. In states with no-fault automobile insurance, your right to sue often is limited. Most courts also will allow a wrongful death action if the baby dies from the injuries after birth.

Someone recently stole my car and then wrecked it, injuring passengers in another vehicle. Now those passengers are trying to sue me. Can they win? Am I responsible?

Probably not, since the thief did not have your permission to use the car, although a lot would depend upon the law in your state. Suppose you left your car unlocked with the keys in it, making it easy for the thief to steal. This could be negligence. Even then, most courts generally will not hold you liable if the thief later injures someone by negligent driving. That is because courts hold that you could not foresee that your actions ultimately would result in such injuries.

In a few cases, though, courts have looked at whether your actions caused an unreasonable risk of harm to someone else. If you left your car parked with the engine running, for example, you might be liable if the car thief then injures children playing nearby. In a no-fault state, on the other hand, it might be difficult--if not impossible--for the passengers to sue you.

I was hit by a car that was driven by a drunk driver who was going home after a night out. What can I do, in addition to suing the drunk driver?

You may be able to collect from your own uninsured motorist or underinsured motorist coverage for damages you suffered from the drunk driver. In other words, if the drunk driver does not have automobile liability insurance, your uninsured or underinsured coverage from your own policy may provide you some relief.

If you live in a state that has a Dramshop Act, you may be able to recover damages from the owner of the tavern where the drunk driver was served the liquor. Such acts usually come into play when intoxicated people served by a bar later injure somebody while driving. Some of those laws also make tavern owners liable when drunken customers injure others on or off the premises. But some courts say that a tavern owner will not be liable unless the sale of the liquor itself was illegal.

My wife was injured when her car was hit by one being driven by some kids who had been drinking at the home of our neighbor. May I take any action against the neighbor, who supplied the liquor to the youths?

Possibly. Courts have imposed liability against such neighbors or parents when they have served liquor to minors. Parents can be liable for negligent supervision of their children. But as a general rule, courts have said that social hosts are not responsible for the conduct of their guests, unless the hosts routinely allow guests to drink too much or take illegal drugs--and then put them into their cars and send them out on the highway.

I was injured when my automobile collided with a truck driven by a delivery person. Can I recover damages from the driver or the employer?

You may be able to recover from both. Under a form of strict liability known as vicarious liability, you probably can recover from the delivery person's employer. Under the law, employers may be held liable to third parties for acts committed by employees within the scope of their jobs. Although the employer was not negligent, it becomes indirectly liable for the negligence of its employee. Was the employee making a delivery when the accident occurred? If so, the employer is liable, since making deliveries clearly is part of the driver's job. But if the employee first stopped at a restaurant for drinks and dinner with friends, the employer may be able to escape liability. Respondeat superior is a type of vicarious liability used in the employer-employee context. Literally, it means "Let the superior respond." In practice, it means that if you are injured by an employee, you usually can sue the employer.

What is the rationale for vicarious liability?

Vicarious means "taking the place of another." In the case of the delivery person, it means that the employer will be liable for the actions of its driver if the injury occurred in the course of business and ifthere is a connection between the conduct and what the driver was employed to do. Yes, in theory the driver might be a defendant also, but since the employer presumably has far greater resources than the driver, the employer is the more attractive target of the suit and will face the primary liability.

Many may feel that this concept is unfair to employers, which have to insure against this liability. However, the concept is often justified because it helps secure fair compensation for victims, and gives companies every incentive to deter harmful conduct by maintaining high standards and having rigorous training programs and procedures to guard against these risks.

Is an automobile leasing company vicariously liable when the drivers of leased vehicles get into collisions?

Sometimes. In some states, car rental companies are liable for property damage or personal injury caused by operators of leased vehicles under state law. One state supreme court explained the rationale: " . . . to protect the safety of traffic upon highways by providing an incentive to him who rents motor vehicles to rent them to competent and careful operators by making him liable for damages resulting from the [negligent] operation of the rented vehicle." In these states, car rental companies must purchase liability insurance, and pass the cost of that insurance on to the consumer.

In other states, the car rental company is not liable for the renter's negligence. The car renter is primarily liable for damages, and must carry appropriate insurance as a condition of renting the car.

Are there other instances in which a party not directly involved in causing a personal injury might be liable?

Yes. Besides vicarious liability per se, there are many other cases in which someone besides the direct perpetrator of the injury may be liable to the victim. In these cases, the question is whether the negligence of the third party may have been a fundamental cause of the injury.

Examples include whether a mall owner is liable for attacks in the mall (premises liability, discussed below) and whether tavern owners and social hosts are liable for the drunken driving of those to whom they have served alcohol.

A car ran over my dog. Can I recover from the driver? 

Yes, you might win a lawsuit. A dog is property, and you have suffered property damage. You will have to show that the driver was negligent.