If the injury occurred in one of the four states with contributory negligence laws, you may be completely barred from recovering damages. Other states operate under a comparative fault system: the percentage of the injured party’s fault will proportionally reduce the amount of damages payable to the injured party.

For example, let’s say your husband was 50% responsible for the accident that resulted in his traumatic brain injury. If the accident occurred in Alabama, a contributory negligence state, your husband could not recover any money at all because his negligence contributed to the accident (this is true even if your husband was 1% at fault). Some comparative negligence states would still allow your husband to recover 50% of his damages, while other comparative negligence states would not allow him to recover at all because he is equally at fault with the other driver. Still other comparative negligence states cut off recovery at 51%, with the reasoning that the more at-fault party should not be able to recover anything. If your husband was only 1% to 49% responsible for the accident, in most comparative negligence states, he would be able to recover the same percentage of his damages as the percentage of his fault. In a pure comparative negligence state (of which there are currently 13), your husband could recover the percentage of damages corresponding to the percentage of his fault even if he was more at fault than the other party (so if he was 85% at fault, he would recover 15% of his total damages).

Because the rules are so different state by state, it is important to check with an experienced personal injury attorney to find out how the state where your husband was injured treats fault in a brain injury case.