Car accident and other personal injury victims in New York State are sometimes unhappily surprised to learn that they will not receive full compensation for their injuries because of the role their own behavior played in getting injured. This reduction in damages occurs because a defense called “comparative negligence.”
What is Comparative Negligence?
Comparative negligence is a means of justly apportioning blame in a car accident or other personal injury cases. Under this doctrine, an injured person can receive damages (compensation) for an accident, but those damages will be reduced in proportion to his or her own negligence. In other words, even when injured parties are 99% at-fault in an accident, they can receive 1% of the damages caused by the other party.
Comparative negligence arose out of a more strict defense known as “contributory negligence.” Under the contributory negligence defense, if a party in a car accident contributed in any way to his or her injuries, then recovery of damages was completely barred, even if the party was only 1% at fault. Only 5 states still have the contributory negligence defense. The rest have some form of comparative negligence, which is largely viewed as much more fair.
New York State has a “pure” approach to comparative negligence, which means that parties can recover even if mostly at-fault. Other states have a “modified” version of comparative negligence where the plaintiff can recover only if their negligence was equal to or less than the defendant’s.
Examples of Comparative Negligence
A classic example of comparative negligence is a jaywalker being struck by a speeding car. If the jaywalker sought $10,000 in damages from the driver (or the driver’s insurance company), the jaywalker might be deemed 40% at-fault in the accident and therefore entitled to receive only 60% of the total damages ($6,000).
Other examples of behavior that might be considered to have contributed to injuries in a car accident includes:
- Failing to wear a seatbelt
- Talking on the phone, texting, eating, or otherwise driving distracted
- Failing to signal properly before changing lanes or turning
- Failing to wear a helmet on a motorcycle
- Failing to wear reflective clothing on a bicycle
- Failing to look both ways before crossing a street
Who decides how the negligence apportioned?
If the case goes to trial, it is the jury who decides how much each party is to blame, although sometimes the judge decides.
Comparative negligence is an extremely common defense in personal injury matters. If you have been injured in a car accident through the fault of another person, you should consult with an experienced personal injury attorney to safeguard your right to recover full and fair compensation.