What Is Comparative Negligence in New York and How It is Determined

What Is Comparative Negligence in New York and How It is Determined
Calendar icon July 6, 2023

If you were injured in an accident, but you may have been partially at fault, you might think that you won’t be able to recover a settlement for your injuries and other damages.

However, that is not always the case. New York State is a comparative negligence state, which means that you may still be able to recover damages even if insurance finds you to be somewhat at fault for the accident and your resultant injuries. 

What Is Comparative Negligence in New York and How It is Determined

What Is Comparative Negligence?

Comparative fault, also known as comparative negligence, is a system used to determine the degree of fault or responsibility that each party involved in an accident holds for the damages and injuries that have been incurred. 

In a comparative fault state like New York, the actions and behaviors of all parties to an accident are considered when determining liability and awarding compensation for property damage and personal injuries.

Either the insurance adjusters or the court (if the claim goes to trial before a judge and jury) will assess the extent to which each party contributed to the accident in order to determine the degree of fault for which each party is responsible.

Pure Comparative Negligence vs. Modified Comparative Negligence

There are two main types of comparative negligence that are used when determining fault in auto accidents.

Pure Comparative Negligence

In states that follow pure comparative negligence, including New York State, each party can still recover compensation for damages even if they are mostly at fault for the accident. The amount of compensation awarded to the injured party is reduced by the percentage of fault assigned to him or her. 

For example, if you were found to be 40% at fault for the accident and the other driver was found to be 60% at fault, you would only be able to recover 60% of your damages; so, if you suffered $10,000 in damages, you would only receive $6,000 (60% of $10,000).

Modified Comparative Negligence

Unlike New York, some states operate under what’s called the “modified negligence rule.” This rule has two variations: the 50% rule and the 51% rule.  Under the 50% rule, the injured party can only recover damages if their fault is determined to be 49% or less; if their fault is 50% or greater, they will not be able to recover any compensation for damages.

Under the 51% rule, the injured party can only recover damages if their fault is determined to be 50% or less; if their fault is determined to be 51% or more, they will not be able to recover any compensation. 

How Is Comparative Negligence Determined?

Since New York State follows the pure comparative negligence rule, an injured party can still recover damages even if he or she is found to be mostly at fault for the accident and resultant injuries. Here’s how comparative negligence is applied in New York:

  • Apportionment of fault: After reviewing the police report and other evidence provided, the insurance adjuster assigned to the claim will assign a percentage of fault to each party involved. If the claim goes to trial, the court or jury will then evaluate the evidence to determine the percentage of fault for each party involved in the accident. 
  • Percentage of fault: The percentage of fault assigned to each party will establish how much an injured party is able to recover in damages. 
  • Calculation of damages: The total damages awarded to the injured party is reduced by the percentage that they are found to be at fault. For example, if the injured party demonstrates that he or she has sustained damages of $100,000, but he or she is found to be 20% at fault for the accident, then the injured party will be able to recover a maximum of 80% of his or her damages (in this case, $80,000 in compensation). 

If you have been injured in a car accident and you do not believe you have been assigned the correct or fair amount of fault for an accident, it’s important to contact a personal injury attorney.

Likewise, if you have been injured in an accident and you are concerned that the insurance company may claim it was your fault, you should consult an attorney who may be able to help you prove that you were not the sole cause of the collision. Working with a trusted personal injury attorney is risk-free, as you do not pay unless they are able to recover damages for you. 

How Can A Personal Injury Attorney Help To Determine Fault?

If you choose to work with a personal injury attorney after your accident, there are many ways in which they can work to establish liability, or fault, by obtaining evidence and performing a thorough investigation.

Your attorney will work to build your case using the police report and any other available evidence. Depending on the specific circumstances of your accident or injuries, your attorney may choose to hire an accident reconstructionist or medical expert to build your case. 

Once the investigation is complete, your personal injury attorney will analyze the information to determine which parties are at fault for the accident and to properly apportion the fault between them. If your attorney’s theory differs from the insurance company’s findings, your attorney will negotiate with the insurance company in an effort to reach a fair settlement. 

If a settlement cannot be agreed upon, your attorney will likely recommend taking your claim to trial, where a judge and jury will determine who is at fault for the accident and the amount of compensation available for recovery. Your attorney will represent you and your interests before the judge and, ultimately, a jury—so it’s important to work with an attorney who has proven experience in the courtroom. 

Consult With An Attorney At Cellino Law

In New York State, you have the right to pursue compensation against a party who is responsible for your injuries – even if you may be partially at fault for your accident. The settlement you deserve depends on several factors, including what percentage you are found to be at fault for your accident under New York’s comparative negligence rule. 

The experienced attorneys at Cellino Law are here to help you recover the compensation you’re entitled to after your accident. If you’ve been involved in an accident where you’ve sustained injuries and you do not believe the insurance company has assigned the correct percentage of fault to you or the other party involved, contact us for a free case evaluation at 888-888-8888.

Zoom Screenshot_16.png

Content checked by the personal injury attorney Ross Cellino. As a family man and a trial attorney, I pride myself on winning cases and serving the community. With over 35 years of experience, I understand the function of a jury, how juries arrive at conclusions, and the role that the jury plays in administering justice. I know how to win cases. You can find us in Manhattan, Buffalo, Melville, Rochester, Brooklyn, The Bronx, Queens and other locations throughout New York.



Free Case Review




  • Thank you for your time, effort, and hard work on my case. I appreciate your expertise and compassion. I never experienced what I went through and I would have been completely lost without you.


  • I highly recommend Cellino Law to anyone involved in a car crash. I worked with Michael Lovecchio, and had a wonderful experience given the circumstances. He was very attentive, and got the best possible outcome I could have wanted.


  • Now that reality has set in, I want to thank you for all your work and assistance in obtaining my settlement for the pelvic mesh. This money will make my life so much easier in the future. Medicare just isn't sufficient. I know that I will have enough to live on. I truly appreciate of your efforts. Thank you!


  • We want to send a big "Thank you" from the both of us. We know you both fought for us and did a great job with our case. You did it in a timely manner and we appreciate it.

    Kerrijo & Jerry

  • I really just wanted to say thank you so much for taking my case, answering all my questions, and mostly for being very patient with me. I feel that without you and Roza I would not have been able to get anything at all. I hope to never need a lawyer again, but if I do I will definitely want you both working for me. Again thank your for you hard work, time and patience.


  • Thank you for your help in settling the case of my father's accident. I could always count on you to answer my questions honestly and in terms I could understand. If all lawyers at Cellino Law are like you, I understand why they are an A-1 law firm.