Comparative Negligence in Hawaii

Hawaii follows the 51% comparative negligence law, meaning you can only recover damages from an accident if you were found to be less than 51% at fault.
Written by Shannon Fitzgerald
Reviewed by Kathleen Flear
Hawaii practices a 51% comparative negligence law, meaning that you can recover damages from a collision based on your percentage of fault unless you are deemed more than 51% at fault for the accident. 
One of the most complicated factors of any traffic collision is determining which party holds more blame. Depending on what state you’re in, the percentage of blame—or negligence—you are determined to have will influence how much you can claim in damages. 
This is why it’s useful to get to know the negligence laws in any state where you drive. Here,
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What is comparative negligence? 

Comparative negligence is a tort law—meaning it pertains to harm from a civil wrong. It is used to allocate damages to each party in proportion to their percentage of fault. 
For example, if you’re in an accident and a judge finds you to be 20% at fault, you will be responsible for paying 20% of the damages. The other driver, on the other hand, will be responsible for paying 80% of the damages. 
Comparative negligence is not just applicable in personal injury lawsuits, but in third-party insurance claims, as well. While a judge or jury determines and assigns the percentage of fault in a personal injury lawsuit, an insurer calculates the percentage of damages they will pay once a claim is filed.

Comparative negligence vs. contributory negligence 

There are three different types of comparative negligence in use in the U.S.: pure comparative negligence, partial or modified comparative negligence, and contributory negligence. Each state determines which type of comparative negligence they follow. 
Here’s what they mean:
  • Pure comparative negligence: an injured party can collect damages according to their percentage of fault unless they are found to be 100% to blame. 
  • Partial or modified comparative negligence: an injured party can collect damages according to their percentage of fault unless they are found to be 50% or 51% or higher at fault depending on the state.
  • Contributory negligence: an injured party can only collect damages if they do not bear any of the fault in the accident.
While there are 12 states that practice pure comparative negligence, only 5 states practice pure contributory negligence.
Key Takeaway Each state will practice either pure comparative negligence law, partial or modified comparative negligence law, or contributory negligence law. 

What is Hawaii’s comparative negligence law? 

Like most states, Hawaii practices a partial comparative negligence law. According to this principle, you may collect damages based on your percentage of fault unless you are found to be 51% or more at fault for the accident. 
In this case, if you are found to be 20% at fault for an accident, you will not need to cover any of the other driver’s damages. Since they are 80% at fault, they are not entitled to recover damages and will need to cover up to 80% of your damages through their insurance. 
If you were found to be 50% at fault, both you and the other driver will be responsible for paying 50% of each other’s damages. If you were 51% at fault, however, you would not be entitled to recover damages and would need to pay 51% of the other party’s damages. 

What happens if there are more than two responsible parties? 

When an accident involves more than two parties, the percentage of fault will still be split amongst them. In this scenario, you can file a claim with either or both of the other drivers’ insurance providers—the damages you’ll recover will depend on the fault each party is assigned. 
MORE: The 5 main reasons a car accident insurance claim is denied

How is fault decided in a comparative negligence case? 

When a claim for an accident is filed, insurers determine the percentage of fault based on the evidence submitted in the claim along with any police reports. In Hawaii, you’ll need to prove that the other driver was negligent and that their negligence resulted in your physical or financial injuries. 
Therefore, you’ll want to document the following:
  • Weather conditions when the accident occurred 
  • Photos of the damages each vehicle endured 
  • Photos of any physical injury and medical details
  • The time that the accident happened 
  • The makes and models of the cars involved 
  • Witness statements 
  • Police involvement 
  • Receipts from medical and repair bills
Using this evidence, insurance companies will determine how to distribute money to the appropriate parties.  

How does car insurance work with comparative negligence? 

As a state that practices partial comparative negligence, Hawaii allows you to file a claim with another driver’s insurance provider as long as you were less than 51% at fault for the accident. The amount of damages you can claim will depend on how the percentage of fault is distributed. 
For example, let’s say you’re crossing an intersection and you get into an accident with another driver who turned left into oncoming traffic. While you saw the car, you weren’t able to stop in time because you were speeding 10 mph over the limit.  
You file a claim with the other driver’s insurance provider and they determine that you were 15% at fault for speeding, while the other driver was 85% at fault for
texting while driving
. The other driver, in this case, cannot recover any damages
However, because you were still 15% at fault, the amount you receive to cover your damages will be deducted by 15%. Therefore, if it cost $5,000 to tow and repair your vehicle, the other driver’s insurance will need to cover up to $4,250, but you will be responsible for the rest.  

How to find affordable car insurance

Don’t wait until an accident occurs to make sure you can cover your percentage of damages. With
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Unfortunately, yes. Though each insurer determines how much your premium will increase differently, they all take into consideration your demographics, driving history, and percentage of fault, among other factors. You can generally expect your rate to go up by at least 20% when you’re found at fault.
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