Have you ever heard the term “Comparative Negligence?” This article will explain how Comparative Negligence applies in New York personal injury litigation. Consider this (rather typical) scenario. You’re walking down the aisle of your local supermarket, glancing at the various available products. Next thing you know, you’re on the floor. You had a sensation of your foot slipping, and when you look back, you notice some type of slippery substance on the floor. It turns out that there’s good reason why you are unable to bear weight on your right side – x rays are positive for a fractured ankle, and surgery is required.
Under the right circumstances – if you can prove that employees of the store knew about the condition or, in the alternative, that the condition was present for an extended period of time – the store will be responsible to pay damages. But can the store argue that even if it is responsible, you are also responsible?
Like other states, New York recognizes the doctrine of “Comparative Negligence” as a defense to a personal injury action. In this case, the property owner can at least attempt to claim that liability is shared, with the argument that your failure to look where you were going was a partial or even sole cause of the accident (Side Note: yet another reason to not look at your phone while you’re walking!).
If the case were to be resolved at trial, a jury would be asked to determine whether both you and the store were negligent, and if so, to allocate the percentage of fault.
Some states have a ceiling, so that if you were, for example, 51% at fault, you would forfeit the right to collect damages. Previously, the rule in New York was that if you were even 1% at fault, the store would win the case. But New York is now a “pure comparative negligence” state, which means that even if you are 99% at fault, you can still collect 1% of your damages.
So the comparative negligence rule in New York is pretty simple. If a defendant successfully argues that you are partially at fault for the accident, the jury will be asked to allocate the percentages of fault to each party. The jury will then award a monetary figure for damages. If the jury determines that you are 50% at fault, your damages will be reduced by that percentage.
The issue of comparative negligence plays at least some role in many personal injury cases. In automobile and motorcycle accident litigation, there can be a question of whether a car that was hit in the rear strayed out of its lane, or whether a vehicle that otherwise had the right of way was speeding.
The doctrine of Comparative Negligence permits a jury to fairly allocate damages in a simple manner. The accident victim can collect his or her damages reduced by their own negligence, and the defendant’s exposure is limited to his or her actual percentage of fault.
Michael L. Taub is a Partner in The Platta Law Firm, PLLC in New York City. He has been a member of the New York Bar for over 39 years.
