If you were injured because of another person’s negligence, but you’re also at fault, you may think you won’t be able to recover a settlement for your injury.
New York is a comparative negligence state since 1975. So, even if you are at fault to some degree, you may still collect damages from the other person or company. The percentage of fault you hold is subtracted from the damage award. So, if the other party is 75 percent at fault, and you are 25 percent liable, you could recover 75 percent of your damages.
How is Fault Determined in Comparative Negligence?
Usually, a judge or jury decides how much fault is attributed to the parties in a lawsuit. This must be supported by evidence and have a legal basis. Extensive case law in New York gives guidelines to the courts, but every judge or jury has the right to their own interpretation based on the facts of the case. This is why you should always have an attorney by your side.
Every percent is important; a few percent less and you will get a lower settlement in comparative negligence cases.
Even though you know that the other person caused your injury, it may be hard to believe that anything you did was a reason for the accident. Courts may find victims at fault, in ways you never thought to consider during comparative negligence cases. Here are some examples:
- Auto Accidents — If you did not wear a seatbelt or motorcycle helmet or if you were a pedestrian and didn’t cross the street in a crosswalk (wore dark clothes in the dark), you may be at fault for contributing to the accident. No matter your injuries, the court may find you liable at some percent.
- Premises Liability — If you were injured by a hazard while being drunk or by a condition you knew about or were responsible for (such as a slippery or damaged floor), you may be found at-fault.
- Products Liability — If you misused a product and it injured you (this is especially important if the product had a warning; if you read the warning and still used it and got injured), you will be found partially responsible.
- Medical Malpractice — If your doctor advised you to do or not do something and you went against the advice of the doctor (about a treatment or taking medications) and ended up ill or injured, you will carry a partial fault.
Some courts have held that if a victim’s behavior was wrongful but did not contribute to causing the accident, the damages won’t be reduced. Let’s say that you chose to be in a known dangerous location; it may not add an amount to comparative fault if you end up injured because your action did not cause the injury. The injury was caused by the person who harmed you. These arguments are technical and need experience and knowledge to pursue.
Assumption of Risk
This is referring to that you knew what you were getting into. A defendant in a personal injury action may have a protected or “complete” defense if the victim firmly agreed to consider the risk involved in the activity. Let’s say you play on a sports team and got injured just by playing. In such cases, the defendant cannot be found responsible. But, agreeing to injury-causing events that have known, apparent, or reasonably foreseeable outcomes of participation is not the same as agreeing to unassumed, concealed, or unreasonably increased risks.
It’s important that you seek the help of a car accident or personal injury attorney in a comparative negligence case. In cases when you firmly believe you aren’t at fault, things may go in the wrong direction. Don’t risk going to court and learning that you are actually carrying some percent of the fault (even a small one).
Your attorney will know what to do in comparative negligence cases. No matter how the accident happened, whether you wore a seat belt, helmet, or crossed the street at an unmarked crosswalk, your lawyer will give their best to prove your case and get a higher settlement from the insurance company.
It’s essential that you hire a skilled, experienced, and knowledgeable lawyer who will collect evidence and will know what to do next.
Our team at Cellino Law is here to help you. We will review your case on your first free of charge consultation. Our mission is to get you your much-deserved claim (not just a tiny amount).
Contact our office and schedule your first consultation. We’re expecting you.