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When a person is injured in an accident, the common reaction is to ask, “Who was at fault?” Determining fault requires a jury to decide whether either party violated their duty to use reasonable care. That inquiry seems rather straightforward, but what happens when both parties violated the applicable standard of care?

Consider, for example, an automobile accident that results from one vehicle violating the speed limit and the other vehicle failing to obey a traffic signal. When the American colonies adopted many of the English laws about personal injury, they also adopted the concept of contributory negligence. If the plaintiff was partially at fault, even to a very small degree, neither party could recover from the other. In the mid-20th century, legal thinkers began to recognize that this outcome was unnecessarily harsh, and the concept of contributory fault was replaced by the rule of comparative fault.

The Colorado legislature enacted a statute that abolished the contributory fault rule. The new statute provides that the plaintiff can recover damages from the defendant if the plaintiff’s degree of fault is less than the fault of the defendant. However, the plaintiff’s recovery will be reduced in proportion to the relative fault of the parties. For example, if the jury determines that the plaintiff was 40% at fault and the defendant was 60% at fault, the plaintiff’s recovery will be reduced to 60% of the damages proved at trial. To recover even the reduced share of damages, the plaintiff must prove that the defendant’s percentage of fault was greater than the plaintiff’s. If the shares are equal, the plaintiff does not recover anything.

The rules of comparative fault can become very complex in their application, especially in multi-vehicle accidents. The advice of an experienced personal injury attorney is usually necessary to understand how the rule applies in the real world.