After an accident in New York, one of the first things an insurer may suggest is that you were partly at fault. That can sound like the end of a claim, but it usually is not. New York follows a rule called pure comparative negligence, and it is one of the most common ideas in injury law. This article explains it in plain language. It is general information, not advice about a particular case. People who want to speak with Bisogno & Meyerson, LLP about an injury can start with the firm’s personal injury law page.
The firm’s office is at 7018 Fort Hamilton Pkwy, Brooklyn, NY 11228, and Staten Island and other NYC clients are represented from that office.
The Basic Rule in New York
Under CPLR 1411, when an injured person’s own carelessness contributed to the harm, the person’s damages are not automatically barred. Instead, the amount of damages is reduced in proportion to the share of fault assigned to the injured person. Many people call this “pure” comparative negligence because it does not set a cutoff. Some other states bar a claim once the injured person is found to be 50 or 51 percent at fault. New York does not use that kind of cutoff in the ordinary civil case.
In practice, a fact finder compares the conduct of everyone involved and assigns percentages. If a jury decides the total damages are a certain amount and finds the injured person 25 percent responsible, the award would be reduced by that 25 percent. The numbers in that example are illustrative only and are not a prediction about any real case.
Why Insurers Raise Fault Early
Fault percentages affect settlement discussions. An insurer for another party may point to anything that could shift responsibility: a pedestrian looking at a phone, a driver who was slightly over the speed limit, a person who walked on a wet floor, or a worker who did not use available equipment. Some of those points may be supported by evidence and some may not. The important thing is that an allegation of shared fault is not a finding of fault.
Statements made early, including to an adjuster, can later be quoted back. Think carefully before giving a recorded statement, and avoid guessing about speed, distance, or what you “should have” done. Describe what you actually remember, and say so if you do not know.
Everyday Examples
Car and pedestrian accidents
In a crash, the question is often who had the right of way and whether either driver was inattentive, speeding, or violating the traffic rules. Shared fault is possible when the facts are mixed. For more on those claims, see the firm’s page on car accidents and the page on pedestrian accidents.
Slip and fall
In a property case, an owner may argue that the hazard was open and obvious, or that the injured person wore unsuitable shoes or was not paying attention. Those facts can bear on how fault is divided. They do not necessarily defeat a claim. See the firm’s overview of slip and fall matters.
Dog bites
In dog bite cases, an owner may argue that the injured person provoked the dog. How that argument is treated depends on the legal theory and the facts. The firm’s page on dog bite claims in New York City discusses those theories.
Exceptions and Special Situations
The general rule has limits, and some areas of law work differently. Workers’ compensation is a no-fault system, so a worker’s ordinary carelessness generally does not defeat a compensation claim. Labor Law claims involving elevation hazards have their own doctrines. Medical malpractice and claims against government entities follow additional procedural rules. Also, the rule applies to negligence-based claims. Intentional harm and certain statutory claims are analyzed differently.
When more than one party is responsible, Article 16 of the CPLR can affect how responsibility is divided among defendants, and a defendant found to be 50 percent or less at fault may, with exceptions, be responsible only for its own share of non-economic loss. This is a technical area, and an attorney should review how it applies.
Shared Fault and Settlement
Because fault can reduce a recovery, parties may disagree about percentages even when they agree that an accident happened. A claim is evaluated on the evidence available: photographs, video, witness accounts, police or incident reports, medical records, and sometimes accident reconstruction. Fault can be argued from both sides, and the result is never certain in advance.
Practical Steps After an Accident
Get medical attention. Preserve photos and any video you can obtain safely. Collect names and contact details for witnesses. Keep records of bills and missed work. Be careful about social media posts that could be misread. Because most personal injury lawsuits in New York must be started within three years under CPLR 214, and shorter notice periods can apply for government defendants, ask about deadlines early. Our blog on how long personal injury cases take explains the stages of a case, and the post on whether you need a lawyer after a car accident covers a related question.
Talk With Our Firm
Bisogno & Meyerson, LLP has concentrated in personal injury and workers’ compensation work since 1994. A free consultation is a conversation about facts, deadlines, and options. It is not a prediction of fault or of any recovery, and every case is different, so speak with an attorney about your own situation. A short firm overview describes the practice.
Call (718) 745-8880 or contact us. Attorneys on the site are Patrick Bisogno, Esq.; Michael C. Meyerson, Esq.; and George A. Silva, Esq.
Attorney Advertising. This page is general information from Bisogno & Meyerson, LLP, not legal advice. Contacting the firm does not, by itself, create an attorney-client relationship.