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Legal Matters: If an accident victim is even ‘1 percent’ at fault, chances of winning a lawsuit drop to zero

A reader reports he was hit by a car while walking across the street at an intersection. He suffered injuries to his head and face, and will require plastic surgery to reshape injured areas.

The accident victim would like to sue the driver who hit him. But he reports that attorneys he has contacted tell him he could not win a lawsuit against the driver because of Maryland’s “1 percent rule.” He wants to know why the rule bars compensation for him.

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Maryland has a contributory negligence rule that applies to legal actions such as lawsuits against someone whose actions or failure to act may have contributed to another person’s injuries. The rule is known as the 1 percent rule. Under it, persons injured in an accident or other incident cannot collect damages if they are in any way to blame for what happened, even if the other person involved was 99 percent responsible and the victim was only 1 percent responsible.

Contributory negligence means that you behaved in some way that created an unreasonable risk to you, such as crossing against a traffic light or stepping out from between two parked cars. Your behavior does not give a driver a license to hit you, but the law regards you as partly responsible if an accident occurs.

Maryland is one of only four states that follow the 1 percent rule. The others are Alabama, North Carolina and Virginia. (Washington, D.C. also follows the 1 percent rule.)

The alternative to contributory negligence is comparative negligence. In a comparative negligence state, compensation could be awarded to accident victims based on the relative share of responsibility borne by each person involved. For example, if the car was speeding, a factor that could make it impossible for the driver to stop before colliding with the pedestrian, but the pedestrian was crossing against a traffic light, the driver would have to compensate the walker, but would not pay as much as he would have if the pedestrian was blameless.

Our injured reader would likely find his case rapidly dismissed. Although he was crossing at a marked intersection, he was cited by the police officer who investigated the accident for crossing the street in the path of an oncoming vehicle. The citation indicates that the officer concluded the pedestrian was at least 1 percent responsible for the accident.

Police issued more serious citations against the driver for striking him, the victim reported. But unless the pedestrian could prove that the police citation was in error and he was not in any way responsible for the collision, he is up against the 1 percent rule.

If our reader had been injured in a comparative negligence jurisdiction, the compensation he could win in a lawsuit would be based on factors such as whether the pedestrian was crossing in daylight, or, if it was dark at the time, whether he had a handheld light or reflective clothing, and whether the car was speeding or whether the pedestrian stepped out when the car was too close to be able to stop.

Donna Engle is a retired Westminster attorney. Her Legal Matters column, which provides legal information but not legal advice, appears on the second and fourth Sunday each month in Life & Times. Email her at denglelaw@gmail.com.

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