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Comparative Negligence in NY

Attorneys explain how fault is apportioned in an accident

If you were injured because of someone else’s negligence, but you were a bit at fault, too, you mistakenly may think you cannot recover any money for your injury. The lawyers at Barasch McGarry Salzman & Penson want you to understand how fault is looked at by the courts.

Since 1975, New York has been a comparative negligence state. This means that even if you are found at fault to some degree, you may still recover damages from the other responsible person or company. Whatever percentage of fault is attributed to you is subtracted from the damage award. So, if the defendant is found by the court to be 75 percent at fault, and you are 25 percent responsible, you could recover 75 percent of your claimed damages.

Prior to 1975, the contributory negligence standard applied. If you were even a tiny bit at fault for an accident, you would receive zero damages from the defendant.

How fault is determined

A judge or jury assesses how much fault is attributed to the parties in a lawsuit. The determination must be supported by evidence and have a legal basis. Extensive case law in New York provides guidelines to the courts, but each judge or jury makes its own interpretation based on the facts of the case. That is why it is vital to have a personal injury attorney who understands the nuances of comparative negligence and who has time-tested strategies for prevailing in these complex cases.

A variation in a finding of fault by only a few percentage points can mean the difference of thousands of dollars in your damage award.

For comparative negligence to apply, the defendant must claim and prove it. Our attorneys have yet to see a defendant not thoroughly examine a case for the possibility of plaintiff fault. Defendants make every effort to reduce their liability and thus save themselves some, or a large amount of money.

Examples of comparative causation

When you know someone else caused your injury, it may be hard to believe that anything you did contributed to the accident. Unfortunately, courts do find victims at fault, often in ways you never thought to consider. However we consider all of it, and we leave no stone unturned in our effort to defeat comparative negligence claims. Examples include:

  • Auto accidents — If you fail to wear a seatbelt or motorcycle helmet or do not cross the street in a crosswalk and you are injured in a car accident
  • Premises liability — If you were injured by a hazard while drunk or by a condition you knew about or were responsible for, such as a slippery floor
  • Products liability — If you misused a product and it injured you
  • Medical malpractice — If you went against the advice of a doctor regarding treatment or taking medications and became ill or injured

Some courts have held that if a victim’s conduct was wrongful but did not contribute to causing the accident, the damages are not reduced. For example, just choosing to be in a known dangerous location may not amount to comparative fault if you are injured because your action did not cause the injury — the conduct of the person who harmed you did. These arguments are highly technical and require skill and experience to pursue.

Assumption of risk — when you know what you’re getting into

A defendant in a personal injury action may have an unassailable or “complete” defense if the victim expressly agreed to assume the risk involved in the activity. If you play on a sports team and are injured simply by playing, a defendant cannot be found liable. However, consenting to injury-causing events  known, apparent or reasonably foreseeable consequences of participation is not the same as consenting to unassumed, concealed or unreasonably increased risks. Deciphering the subtle differences between the two is what our attorneys do best.

Lawyers who understand dividing responsibility for accidents

If you are injured in New York, you may be accused of playing a role in your accident so that your percentage of damages is reduced. Contact Barasch McGarry Salzman & Penson online or at 888.746.8212 for a free consultation with an attorney who will fight for every bit of money to which you are entitled.


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