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Contributory Fault vs. Comparative Fault and How New York’s Law Can Impact Your Personal Injury Case

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Contributory Fault vs. Comparative Fault and How New York’s Law Can Impact Your Personal Injury Case



Contributory Fault vs. Comparative FaultNew York is a no-fault state. This means that your injury claim will first go to your auto insurer. But if you suffered a serious injury, New York allows you to file a lawsuit against the at-fault driver.

This is where the concepts of fault and contributory negligence come into play. You will need to prove another driver in the car accident was at fault to recover any compensation from the driver or the driver’s insurance company. At the same time, the at-fault driver and that driver’s insurance company will try to reduce the driver’s liability by showing that you were at fault.

Here are some of the things that you should know about New York’s comparative fault law and how it compares to the contributory fault laws that other states use.

Allocation of Fault for Accidents

When a lawsuit is filed, simple fairness dictates that everyone at fault should share the liability for the accident. Suppose a truck accident occurs. The truck driver runs a red light and the driver of the car with the green light T-bones the truck. If the car could have stopped in time, but failed to do so because the driver was changing the radio station, both drivers share the blame for the accident.

The truck driver who ran the red light probably deserves the bulk of the fault. That driver broke a traffic law and engaged in dangerous behavior by ignoring the traffic light.

The car driver who was distracted bears a share of the blame because the driver could have avoided the accident by paying attention. This driver did not break any traffic laws, but still failed to devote their complete attention to the road. This was also dangerous behavior.

An insurance company or jury could logically find that the truck driver was 70% at fault and the car driver was 30% at fault.

Pure Contributory Negligence Systems

Pure contributory fault rules state that if an injured person bears any responsibility for the accident that caused the injuries, the injured person is not entitled to recover compensation. So under the example above, the distracted driver would get nothing and the truck driver who ran the red light would pay nothing in compensation for the accident.

Under a pure contributory fault system, a finding that the injured person was even 1% at fault meant that the injured person received nothing.

For example, in a pedestrian accident, suppose that pedestrian ran into the crosswalk after the countdown to the “Don’t Walk” signal started. Even if a car turning right failed to see the pedestrian and struck her, the pedestrian might bear 1% of the fault for starting to cross too late.

Under contributory fault, the driver would not need to pay anything, despite being 99% at fault and hitting a pedestrian. This unfair outcome, in which the pedestrian gets nothing and the driver keeps everything, motivated legislators and judges to develop comparative fault laws.

Pure Comparative Fault Systems

The difference between contributory fault and comparative fault is that comparative fault allows the injured person to recover something, even if he or she was partially responsible for the accident.

New York is one of many states to follow a pure comparative fault system. Under these rules, the injured person always recovers unless the person is 100% at fault.

In the example described above, the distracted driver would recover 70% of the damages incurred. This means that the outcome for a 70/30 split of the fault will produce the same outcome under either a modified comparative fault law or a pure comparative fault law.

The difference between the two occurs when the injured person’s fault is greater than the person being sued. In a pure comparative fault law, as is the case in New York, an injured person who is 90% at fault for an accident can recover 10% of the damages incurred from the driver who was 10% at fault.

Modified Comparative Fault Systems

Many states have a hybrid system known as “modified comparative negligence.” In these states, accident victims can recover compensation for their injuries if they share some – but not most – of the blame.

The point at which compensation is barred varies from state to state.

50% Bar to Recovery

If the injured person is 50% or more at fault, the injured person recovers nothing. Thus, in a case where the injured person shares fault equally with the other driver at 50% each, a 50% modified comparative fault system would not allow any compensation to be awarded to the injured party.

51% Bar to Recovery

If the injured person is 51% more at fault, they can recover no compensation for their injuries.

New York’s Pure Comparative Fault Rule: CPLR Section 1411

Since New York is a pure comparative fault state, you do not need to worry about being barred from compensation for sharing most of the blame.

The state’s comparative fault rule, CPLR Section 1411, simply states that contributory negligence “shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished” in direct proportion to fault.

In other words, the more fault you share, the less money you’ll ultimately be able to recover after getting hurt. So, even though sharing blame for an accident in New York won’t mean that your ability to get money is lost, it is critical to downplay how much fault is ultimately assigned to you. You will still want to protect your ability to maximize your compensation.

You should document your role in the accident clearly so that you can avoid or minimize any fault assigned to you.

Some ways that you can ensure that your story about the accident is fully told include:

  • If the police respond to the accident, tell the police what you saw and heard.
  • Document the accident scene with your cell phone camera. Photos might tell a story that words cannot.
  • Make sure that the police have your contact information and contact information for any witnesses in or around your vehicle.
  • Be honest and tell a consistent story. Even if you must admit that you were partially at fault, you must tell the truth. Changing your story will destroy your credibility.
  • Consider contacting a lawyer before you file a claim with the insurance company for the at-fault driver. The lawyer can review the police report with you and make sure your story remains consistent.

Laying proper groundwork before you file an insurance claim or lawsuit can help to make sure that you minimize your allocation of fault and maximize your compensation.