888-888-8888
Home icon Envelope icon

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
Tags icon

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.

INJURED?
WE CAN HELP

CALL US NOW

Free Case Review

BLOGS ARCHIVE

FREE CASE REVIEW

    Testimonials

    • 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.

      Veola

    • Cellino Law and more specifically my attorney, Gregory V. Pajak, Managing Attorney, and as a whole the Cellino Law Firm and its organization. This is by far one of the most professional law firms and attorney I have ever engaged with and retained in my 35 years. The level of professionalism goes beyond words, the care and constant engagement with me as the client was touching. I was never ever just treated as simply a CASE with potentially a significant dollar number attached to my file. I was engaged regularly, Tracey (Ass’t) and Greg always made sure to remain constant, as well as consistent in overseeing that my case was handled properly and that it did matter in many ways - ensuring that the end result(s) would be fair and reasonable to my case/injury. The regular follow-up calls were very satisfying, knowing that you’re involved in your case matters significantly AND always. One of my main items to recognize Cellino Law and Gregory is that whenever I called, I was able to get through to speak directly to my Lawyer and he would answer any if not all of my questions in a very professional and genuinely caring manner. I always felt cared for and protected legally and more importantly, I was made feel as a human being that was being cared for and always keeping me abreast of all matters connected to the case. There was never a point I felt let down, on the contrary -the level of service was “STELLAR”. Greg is the consummate professional, a ‘role model’, if you will, for what other attorneys should strive to become when dealing with their clients.

      Anthony

    • Choosing the right attorney to represent you after an accident can make all the difference. This is no cliche. I recently experienced these words to live by first hand. After a tractor trailer rear ended me at high speed in 2017 I retained Allan Silverstein to handle my case. I quickly realized that bringing a lawsuit rapidly snowballs into a mountain of details that can make or break your results. Documents, case histories, doctor visits, bills, and lots of phone calls all need to be accurately kept track of if a successful outcome it to be attained. To complicate matters I reside in New York and the incident took place in New Jersey. Luckily, Allan was licensed in multiple states. I was fortunate to find Allan to handle this matter from the New York area. Armed with an accurate account of the facts Allan went to work on the difficult job of negotiating with the defending insurance company as well as my no fault carrier in order to obtain the best possible outcome for my set of circumstances. In a lawsuit communication is key and and events can be of a timely nature. Allan never failed to return my calls - usually the same day! He fought skillfully and respectfully to get me the best possible settlement. He is easy to deal with and a likeable down to earth guy. He always listened with compassion and respect to my issues. He guided me with objective understanding as well as a realistic analysis of the merits of my case. When we finally settled Allan got me a fair agreement beyond my expectations and negotiated with my doctors to make sure all my bills were paid. It was a great experience having Allan represent me. Quality work in any aspect of life is hard to find. Quality is what I got with Allan Silverstein. I highly recommend him if you find yourself in need of a personal injury attorney.

      Theodore

    • Thank you for all your help. It has been a long journey. At last, the light at the end of the tunnel. Also, thank Tom for the help and work he put in.

      Ron

    • My experience during the time of negotiations was extremely positive. Josh Sandberg handled my lawsuit with the utmost integrity. He returned all my phone calls in a timely manner and answered all my questions. Josh made things less stressful. I would highly recommend Josh and the entire staff at Cellino Law.

      Arthur

    • 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.

      Bedner