If you or a loved one have suffered a catastrophic personal injury, you may wonder how you will pay for your care, treatment and rehabilitation. Further, if you have had to stop working due to your serious injuries, you may wonder how you will pay your bills. Understanding the types of damages that are available when a personal injury occurs and the methods of calculation and apportionment among defendants can improve your understanding and help reduce your uncertainty about the future. Fayetteville AR personal injury lawyer Ken Kieklak will explain your situation to you clearly and present your options in an easy to understand manner whether it be to litigate the matte, settle, or another option. For example, if your injury occurred at work, the Law Practice of Ken Kieklak can assist you with obtaining Workers’ Compensation benefits.
What types of damages are available?
In personal injury matters like commercial trucking accidents, compensatory damages and punitive damages are available. Compensatory damages are intended to compensate an injured person for the losses they have sustained. Sometimes this is referred to as making the plaintiff whole. Compensatory damages can include things like lost wages, property damage, medical bills, rehabilitative therapy, and many other actual and tangible losses.
Punitive damages are also available in personal injury actions. But, in contrast to compensatory damages, punitive damages are intended to punish the wrong-doer for especially egregious conduct. Sometimes this is described as the court sending a message to the public. Under Arkansas state law, the plaintiff must carry the burden by showing that compensatory damages were awarded and clear and convincing evidence of aggravating factors. § 16-55-206. An individual who throws large rocks at traffic passing below the bridge he or she is standing on would most likely be determined to have aggravating factors due to his her knowledge that an injury was likely to occur but recklessly disregarded the consequence.
How did systems to calculate legal damages develop?
In the United States, legal damages are often computed by one of three basic types of comparative fault systems. The three main types of comparative fault systems include pure contributory negligence, pure comparative fault, and modified comparative fault. Contributory negligence is the harshest of these methods as it bars a plaintiff who is even 1% at fault from recovery. That is, even if the defendant is 99% at fault and the plaintiff is 1% at fault, there can be no recovery for pain & suffering, lost wages or medical bills. However, one exception to this bar is if the plaintiff can establish that the defendant had the last clear chance to avoid the injury but failed to adhere to his or her duty of reasonable care or prudence. This rule is only still in effect in 4 states, not including Arkansas, and in Washington D.C.
Pure comparative fault developed thereafter as a response to the pro-defendant contributory negligence doctrine and its often unduly harsh consequences. A pure comparative fault system seemingly takes an opposite approach from the contributory negligence rule. This system allows a plaintiff to recover even if the plaintiff is 99% at fault for his or her injuries. To address issues of fairness, any damages awarded to the plaintiff would be reduced by the percentage the plaintiff was at fault. For example, if a plaintiff was awarded $100,000 in damages but was determined to be 50% at fault, the award would be reduced by half to $50,000. Systems of this type are still utilized by a minority of jurisdictions – 13 states.
How does Arkansas determine legal damages?
Today’s majority rule and the rule followed by Arkansas is a modified comparative fault system. A modified comparative fault system is, in some aspects, a synthesis of pure contributory negligence and pure comparative fault. There are two basic variations of the modified comparative fault rule: the 50% bar rule and the 51% bar rule. What these rules mean is that, similar to contributory negligence, if a plaintiff is 50% or more or 51% or more responsible for their injuries, respectively, then they are not permitted to recover any damages. Arkansas law has adopted the 50% version of the bar to recovery. Ark. Code Ann. § 16-55-216. A plaintiff may recover damages in Arkansas if his or her responsibility is less than that of the combined fault of the plaintiffs.
Furthermore most modified comparative fault systems, like the one in Arkansas, also reduces the damages based upon the plaintiff’s responsibility for the accident. Therefore, if a jury was to award $100,000 but determined the plaintiff to be 45% responsible, the award would be reduced by 45% to $65,000. However, if the plaintiff was determined to be 50% at fault for his or her injuries, the plaintiff would be barred from being awarded any damages.
If you have suffered a serious personal injury due to the carelessness, recklessness, or negligence of another person you may be entitled to a damage award. For your free and confidential consultation, contact the Crawford County personal injury lawyers at the Law Practice of Ken Kieklak at (479) 316-0438 or contact us online.
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