Understanding Nebraska’s Modified Comparative Negligence Law
Nebraska operates under a modified comparative negligence system, specifically outlined in Nebraska Revised Statute § 25-21,185.09. This legal doctrine is the cornerstone of any car accident liability claim in the state. It dictates that a injured party (the plaintiff) can recover damages only if they are found to be less than 51% at fault for the accident that caused their injuries. Their compensation will then be reduced by their percentage of fault.
For example, if a jury determines your total damages are $100,000 but finds you were 20% responsible for the crash, you would be entitled to recover $80,000. However, if you are found to be 51% or more at fault, you are barred from recovering any compensation whatsoever. This rule makes the assignment of fault the single most critical battle in a Nebraska car accident case. A lawyer’s primary role is to strategically build a compelling case that minimizes your assigned fault and maximally proves the other driver’s negligence.
The Four Elements of Negligence: A Lawyer’s Blueprint
To prove liability, your attorney must establish four distinct legal elements, building a block upon the previous one. Failure to prove any single element can result in a lost case.
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Duty of Care: The attorney must first demonstrate that the other driver owed you a duty of care. In Nebraska, all drivers have a legal duty to operate their vehicles with the same level of caution, care, and skill that a reasonable person would exercise under similar circumstances. This includes obeying all traffic laws, driving at a safe speed for conditions, and being attentive. Proving this duty is typically straightforward, as it is a standard imposed by law on all motorists.
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Breach of Duty: This is the core of the liability argument. Your lawyer must present clear evidence showing how the other driver breached their duty of care. This breach is the essence of negligence. Common examples include:
- Violating a traffic law (e.g., running a red light, illegal turn, failure to yield).
- Distracted driving (e.g., texting, using a phone).
- Driving under the influence of alcohol or drugs.
- Aggressive or reckless driving (e.g., excessive speeding, tailgating).
- Failing to adjust driving for adverse weather conditions.
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Causation: It is not enough to show the other driver was negligent; your attorney must directly link that negligence to the accident and your injuries. This involves proving both “cause in fact” and “proximate cause.” Cause in fact is often established through the “but-for” test: but for the defendant’s negligence, would the accident have occurred? Proximate cause asks whether the injuries were a foreseeable consequence of the negligent act. An opposing insurance company will often argue that your injuries were pre-existing or resulted from a separate incident.
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Damages: Finally, your lawyer must prove that you suffered actual, quantifiable damages as a result of the accident. This includes economic damages like medical bills, lost wages, and property repair costs, as well as non-economic damages such as pain and suffering, emotional distress, and loss of enjoyment of life. Without proven damages, there is no case to pursue, even if liability is clear.
The Investigative Process: Building an Unassailable Case
A Nebraska car accident attorney acts as a lead investigator, immediately deploying resources to secure time-sensitive evidence before it disappears.
- Scene Investigation: Lawyers often work with accident reconstruction experts to revisit the crash scene, photograph skid marks, debris fields, traffic signs, and road conditions. They measure sight lines and gather critical data that may have been missed in the initial police report.
- Gathering Evidence: This includes obtaining the official Nebraska law enforcement crash report, which contains the responding officer’s initial opinion on fault. They will subpoena traffic and security camera footage from nearby businesses or municipal systems. Witness statements are formally recorded and preserved.
- Digital Evidence: In modern cases, a lawyer will seek to secure electronic evidence such as event data recorders (EDRs or “black boxes”) from vehicles, which can record speed, brake application, and steering input seconds before a collision. They also file subpoenas for cell phone records to prove distracted driving at the time of the accident.
- Consulting Experts: Attorneys frequently hire medical experts to definitively link your injuries to the trauma of the accident, combatting claims of pre-existing conditions. Accident reconstruction experts can create simulations to visually demonstrate how the crash occurred, making the case more understandable for a judge or jury.
Dealing with Insurance Companies
A pivotal role of your lawyer is to serve as a shield against aggressive insurance adjusters. Nebraska is an “at-fault” state, meaning you pursue a claim against the at-fault driver’s insurance policy. Adjusters are skilled at devaluing claims and shifting blame.
Your attorney handles all communication, preventing you from making statements that could be misconstrued as an admission of fault. They understand the tactics used to delay and deny claims and are prepared to counter lowball settlement offers with the hard evidence gathered during their investigation. They accurately calculate the full value of your claim, including future medical needs, long-term disability, and pain and suffering, ensuring you do not settle for less than you deserve.
Litigation: Proving Liability in Court
While most cases settle, an attorney must always be prepared to prove liability at trial. This involves meticulous preparation, including:
- Drafting Pleadings: Filing a precise complaint that clearly alleges the facts establishing each element of negligence against the defendant.
- The Discovery Process: This formal, pre-trial phase is where the lawyer uses legal tools to gather evidence from the opposing party. This includes:
- Interrogatories: Written questions that must be answered under oath.
- Requests for Production: Demands for documents, such as insurance policies, repair estimates, and medical records.
- Depositions: Sworn, out-of-court testimony from the defendant, witnesses, and expert witnesses. This is a critical tool for locking in testimony and assessing the credibility of key players before trial.
- Presenting the Case at Trial: If a settlement cannot be reached, your lawyer will present the evidence to a judge or jury. This involves making opening and closing statements, examining and cross-examining witnesses, and introducing physical and expert evidence in a clear, persuasive narrative designed to prove, by a preponderance of the evidence, that the other driver is liable for your damages.
Overcoming Shared Fault Allegations
Given Nebraska’s modified comparative negligence rule, insurance defendants will almost always allege that you were partially or wholly at fault. Your lawyer must be prepared to aggressively counter these allegations. This could involve using evidence to show your actions were reasonable under the circumstances or that the other party’s negligence was the primary and overwhelming cause of the collision. Effectively neutralizing these allegations is often the difference between a full recovery and a barred claim.
