After an accident, one of the first things you grapple with is the question of fault. In Nebraska, the answer to that question determines whether you recover money for your injuries.
The state follows a legal doctrine called "modified comparative negligence." Simply put, you can recover financial compensation as long as a jury finds you are less than 50% responsible for the accident. If your share of the blame is determined to be 50% or more, you are barred from receiving anything, which makes guidance from a Lincoln personal injury lawyer especially important when fault is disputed.
Remember that just because an insurance adjuster assigns you a high percentage of fault does not make it true. Fault is a legal conclusion that must be supported by evidence. The facts, and how they are presented, are what truly matter.
If you have a question about a fault percentage an adjuster has assigned to you, call us at (402) 414-4896.
Key Takeaways for Nebraska’s Comparative Negligence Rule
- Nebraska's 50% bar rule is absolute. You cannot recover any damages if you are found 50% or more at fault for the accident, which makes even one percentage point of fault critically important in your case.
- The insurance adjuster's goal is claim denial. The other party's insurance adjuster has a financial incentive to assign you 50% or more of the blame to deny your claim completely. Their initial fault assessment is an opening position, not a final legal determination.
- Objective evidence determines fault. The final fault percentage is determined by evidence like EDR ("black box") data, video footage, and expert analysis, not by conflicting stories. Gathering strong evidence protects your right to compensation.
The 50% Bar Rule: How Fault Actually Works in Nebraska
Many people reasonably assume that if an accident was "half my fault, half theirs," they should get half of their damages paid. That seems fair. But Nebraska law does not see it that way. In our state, a 50/50 split means the injured person recovers nothing. The "tie" goes to the defense, leaving you to pay for your own injury-related expenses, which is why it helps to ask your personal injury attorney how this rule affects your specific case.
This is all because of Nebraska Revised Statute § 25-21,185.09, which outlines the state’s modified comparative negligence system. This system stands in contrast to "pure" comparative negligence states, where a person 99% at fault still collects 1% of their damages. Nebraska’s rule is much stricter.
The Hard Cutoff
The severity of this threshold is significant. Consider the financial implications:
- If you are 49% at fault, you recover 51% of your damages.
- If you are 50% at fault, you recover $0.
That one percentage point could be the difference between financial stability and ruin.
The “Math” of Your Settlement: Real-World Examples
Let's look at a few examples based on common situations in Omaha and Lincoln.
Scenario A: The Clear-Cut Rear-End (Low Fault)
Imagine you are stopped at a red light on Dodge Street in Omaha. A driver behind you, distracted by their phone, fails to stop and rear-ends your car. It seems like a clear case of 100% fault on the other driver. However, during the investigation, it is discovered that one of your brake lights was burned out, a detail that makes people search for the best personal injury attorney near you to protect their claim.
- Fault Allocation: A jury determines you were 10% at fault for the equipment violation, as it may have contributed to the other driver's delayed reaction.
- The Payout: Your award is reduced by your 10% of fault.
Takeaway: Even minor issues on your part reduce your financial recovery, but they do not necessarily prevent it.
Scenario B: The Intersection Dispute (The Danger Zone)
You are in a collision at an intersection in Lincoln, like 27th and Vine. Both you and the other driver claim to have had the green light. There are no independent witnesses. The evidence is messy, relying on the drivers' conflicting testimonies and the positions of the vehicles after impact.
- Fault Allocation: After hearing both sides, the jury decides you were 40% at fault for not maintaining a proper lookout, even if you had the right-of-way.
- The Payout: Your award is reduced by 40%.
The Risk: In a case like this, the outcome is highly uncertain. If the jury had shifted its opinion just another 10%, finding you 50% at fault, your recovery would have instantly become $0.
Scenario C: Multiple Defendants (Stacking Fault)
What happens when more than two parties are involved? Nebraska law allows your fault to be measured against the combined fault of all other at-fault parties, which is why many people choose to hire a personal injury lawyer to sort through the added complexity.
- The Scenario: You are involved in a three-car pile-up on I-80. You are found to be 40% at fault. Driver A is found 30% at fault, and Driver B is also found 30% at fault.
- The Calculation: Your 40% fault is compared to the combined fault of the other drivers (30% + 30% = 60%).
- The Payout: Because your 40% is less than their combined 60%, you still recover damages. Your total award would be reduced by your 40% share of the blame.
Why Insurance Adjusters Push for that “50 Percent” Number
When you file a claim, the insurance adjuster for the other party will conduct an investigation. You may notice they seem focused on finding any little thing you might have done wrong. This isn't personal; it's business. Their goal is to protect the company's financial interests.
In Nebraska, the 50% bar rule presents a massive financial incentive. If an adjuster builds a case that you were 50% or more at fault, they legally deny your claim entirely, saving their employer from paying out anything.
The Investigation Phase
Common tactics include:
- Requesting a Recorded Statement: They typically call soon after an accident, hoping to speak with you before you've had time to process everything or consult with an attorney. They are listening for phrases like, "I guess I didn't see him," or "I only looked down for a second." These statements could be misinterpreted later to argue you were inattentive.
- Using Surveillance: In cases with high potential damages, an insurer might monitor your public activities. If you claim a severe back injury prevents you from working but are filmed carrying groceries or doing yard work, they use that footage to attack your credibility. A jury that doubts your honesty about your injuries might also doubt your version of how the accident happened.
Local Context: The "Reasonable Person" Standard
Negligence is legally defined as the failure to act as a "reasonable person" would under similar circumstances. What is "reasonable" changes depending on local conditions in Lincoln or Omaha.
- Omaha/Lincoln Traffic: Adjusters and juries in our state have little patience for distracted driving. They will very likely subpoena phone records to see if you were texting, talking, or using an app at the moment of the crash. Any evidence of distraction easily adds percentage points to your share of the fault.
- Nebraska Weather: During our harsh winters, an adjuster might argue that a "reasonable person" would have been driving much slower on an icy road, regardless of the speed limit. They would use this to shift blame to you, even if the other driver clearly ran a stop sign and caused the collision.
If an adjuster is trying to place fault on you, it is time to seek a professional opinion on the facts of your case.
Evidence That Shifts the Percentage
While an adjuster forms a quick opinion, our work focuses on gathering concrete facts to present a clear, accurate narrative of what happened, the kind of detailed personal injury lawsuit work that shifts the fault percentage back where it belongs.
The "Black Box" and Digital Evidence
Modern vehicles are equipped with technology that provides an unbiased account of an accident. This data may prove pivotal in countering a defense argument.
- Event Data Recorders (EDRs): Often called a "black box," an EDR is a device in your vehicle that records data in the moments just before and during a crash. It shows your speed, whether you were braking, and the force of impact. If the other driver claims you were speeding, the EDR might prove you were actually traveling under the limit, potentially stripping 10-20% of alleged "fault" away from you.
- Video Footage: In urban areas like Lincoln and Omaha, cameras are everywhere. We investigate for traffic light cameras, doorbell cameras from nearby homes, and surveillance systems at adjacent businesses. A short video clip showing the other driver running a red light instantly shifts the fault calculation in your favor.
The Role of the Jury
If your case does not settle and proceeds to trial, the final decision on how to apportion fault rests with a jury. The jury, made up of ordinary citizens, is the "fact-finder." They listen to all the evidence and decide on the percentages.
Our approach is to build a logical and compelling story backed by hard data. We show a jury that the primary, overriding cause of the accident was the defendant's actions. By doing so, we minimize the percentage of fault assigned to you and protect your right to a fair recovery.
Common Defense Arguments to Watch Out For
In their effort to push your fault percentage toward the 50% mark, the other side's attorneys and insurance company might use a number of common arguments, which is why it matters to choose the best Lincoln personal injury lawyer to counter those tactics effectively.
"You Could Have Avoided It" (The Last Clear Chance)
The other driver might admit to making a mistake, like pulling out in front of you, but then argue that you had enough time to swerve or hit the brakes to avoid the collision. They are attempting to offload a significant portion of the blame onto your reaction time.
To counter this, we may work with accident reconstruction professionals who analyze stopping distances and human perception-reaction times (typically around 1.5 seconds) to demonstrate that avoiding the crash was physically impossible.
"You Were Distracted"
As mentioned before, any hint of distraction is a powerful argument for the defense, especially with Nebraska juries who are tired of seeing the consequences of cell phone use on the road. They may allege you were eating, adjusting the radio, or talking on the phone.
Your phone records are the best evidence to refute this, proving your device was not in use at the moment of impact.
Premise Liability Defenses (Slip and Falls)
In cases that do not involve car accidents, like a slip and fall at a store, the defense arguments change. A common argument is that the hazard was "open and obvious." The store will claim that a reasonable person would have seen the puddle of water or patch of ice and avoided it, making you negligent for not paying attention.
We rebut this by investigating the store's own policies. How long was the spill there? Did employees fail to follow their own inspection logs or put out a warning sign? This shifts the focus from your actions to the store's failure to maintain a safe environment.
FAQ for Nebraska Comparative Negligence
Does comparative negligence apply if I wasn't wearing a seatbelt?
Generally, Nebraska law considers the failure to wear a seatbelt as an issue of "mitigation of damages," not as a cause of the accident itself. This means it is used to argue that your injuries were worse than they should have been, potentially reducing your compensation for those specific injuries.
What if the other driver was drunk? Does my fault still matter?
Yes, your percentage of fault still matters. A jury is required to assign a percentage to every party. That said, it is extremely difficult for a defense attorney to successfully argue that a sober driver should be 50% or more at fault when the other driver was intoxicated. The drunk driver's gross negligence almost always becomes the overwhelming factor.
Does this rule apply to dog bites in Nebraska?
In many cases, no. Nebraska has a strict liability statute for dog bites. This means an owner is liable for damages caused by their dog biting someone, regardless of the owner's negligence. Comparative negligence might only come into play if you were trespassing or actively provoking the animal.
Is it possible to reopen my case if I accepted a settlement but didn't know about the 50% rule?
Unfortunately, it is almost always impossible to reopen a case once you have signed a final settlement agreement and release. That document closes your claim forever. This is why you must fully understand the fault allocation and the implications of the 50% bar before you agree to any offer.
How does this rule work if I am suing the city of Lincoln or Omaha?
The same comparative negligence rules apply. However, claims against government entities fall under the Political Subdivisions Tort Claims Act, which has its own unique and much shorter deadlines for filing a claim, as well as specific procedural hurdles that must be met.
Don't Let the Adjuster’s Math Deny Your Recovery
It is normal to feel that you might have done something differently or to worry that a small mistake could have contributed to an accident. But minor errors should not prevent the person who was primarily responsible from being held accountable for the harm they caused.
Our role is to conduct a thorough investigation to ensure the percentages assigned in your case are based on reality, not just the insurance company's calculations.
Let us look at the evidence before you accept the adjuster's decision. Call Steffens Law Offices, P.C. today at (402) 414-4896.
William "Bill" Steffens
Personal Injury Attorney
William “Bill” Steffens, originally from Kearney, Nebraska, is the senior partner attorney at Steffens Law Office. He has practiced law in Nebraska for 40 years, specializing in injury law for the last 25 years. Bill has been involved in many community organizations, both civic and religious, holding both appointed and volunteer positions.
Author's Bio