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Debunking the Alleged Affirmative Defense of Comparative Negligence


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4/20/2014
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While driving to work, a husband and father of 5 was driving his sedan southbound on Middleton Road when he noticed to his right a school bus traveling in an easterly direction on a cross street. The driver observed the school bus slowing down.  The intersection was controlled by a 2 way stop requiring the school bus to come to a complete stop before entering into the intersection.  Unfortunately, the bus driver hit the accelerator and slammed into the side of the sedan causing the sedan to catapult off the road into a utility pole. The driver of the sedan was taken to the hospital with significant injuries to his hip and pelvis. After a long recuperation period of physical therapy, he was released to return to work with some physical restrictions. The insurance company adjusting the claim initially contended that the driver of the sedan was equally at fault for the collision and denied the claim.  Whereupon, a notice of tort claim was prepared and served upon the bus driver, the bus company and the school district consistent with the Idaho Tort Claims Act.  Again, the claim was denied, and suit was filed.  

In Idaho, if a plaintiff is found to be comparatively negligent, and if the plaintiff's portion of comparative negligence is equal to or greater than the defendant's negligence, the plaintiff's claim for personal injuries is barred by operation of law. On the other hand, if a plaintiff  is comparatively negligent but the comparative negligence is less than that of the defendant, then the verdict renderd by a jury will be apportioned or reduced by the percent of comparative negligence found attributable to the plaintiff  For example, if a plaintiff's claim is worth $100,000.00, but if the jury finds that the plaintiff is 50% or more comparatively negligent then the judgment rendered by the court would be in favor of the defendant, and the plaintiff's complaint would be dismissed with the Plaintiff taking nothing thereby.  However, if the Plaintiff is found to be comparatively negligent, but the comparative negligence is only 10% in comparison to that of the Defendant, then the verdict would be reduced by 10% and the judgment rendered by the Court would be reduced to the sum of $90,000.00.

In the aforesaid case, in order to overcome the erroneous defense asserted on behalf of the bus driver that the Plaintiff was driving in a comparatively negligent manner, we retained a collision reconstructionist to perform a collision reconstruction of the accident. After conducting a thorough investigation and reconstruction of the collision, the collision reconstructionist found that (1) the bus driver was operating a bus while distracted due to children acting unruly; (2) that the bus driver took her eyes of the road as she slowed the bus down for the intersection, but instead of pulling off to the side of the road to address the situation, she put her foot on the accelerator and ran the stop sign; (3) The Defendant's failure to stop at a clearly posted stop sign was negligence per se; (4) plaintiff's conduct was reasonable and prudent under the aforesaid circumstance; and (5) that under the circumstances given the stoping distances required, the collision was unavoidable to the plaintiff.

As a result of the report prepared by the expert collision reconstructionist and the testimony rendered by same during his deposition, the injured Plaintiff was able to establish beyond a prepoderance of the evidence that the Defendant's negligence was the sole and proximate cause of the collision meanding that the cuase of the collision was 100% the fault of the bus driver who failed to yield the right-of-way.  Following the conclusion of the deposition of the expert collision reconstructionist, the defense offered to settle the claim for the sum of $225,000.00

 For more information about collision reconstructions, go to http://www.mortonlawyers.com/faqs/accident-reconstruction.cfm

The erroneous claim by the defendant’s insurance company that the Plaintiff was comparatively negligent was rebutted and debunked by the thorough investigation and reconstruction of the collision an expert accident reconstructionist. 

 For additional information regarding automobile/vehicle accidents, you will find additional information at http://www.mortonlawyers.com/library/auto-accidents/ as well as a treasure trove of other nformation regarding frequently asked questions, blogs and other information on an array of topics that may be of assistance to you throughout this website.

If you or a loved one have been injured as a result of a motor vehicle crash, you should obtain a free initial consultation with an experienced trial attorney. There are few things in life that are free, but having a free initial consultation with Boise Personal Injury and Wrongful Death Trial Lawyer Alan Morton is one of them. Mr. Morton has assisted thousands of individuals over the past 31 plus years as an Idaho Trial Lawyer. You can reach Alan Morton by calling 208.344.5555 or toll free at 888.716.8021 or complete the contact form located at http://www.mortonlawyers.com/contact.cfm.  He would be happy to talk with you about any questions and concerns you may have about your injuries and damages.



Category: Auto Accidents


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