Understanding Comparative Negligence in a Personal Injury Case

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When you’ve been injured through someone else’s negligence you always have the right to bring a personal injury claim. But that doesn’t mean the defendant’s actions will be the only ones to come under scrutiny.

New York is a comparative negligence state, which means your own actions will also enter into the discussion. Here’s what you need to know about how your own negligence or lack thereof will impact your case.

You can bring the case regardless of your percentage of responsibility.

As to negligence, refer to which states:

“In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”

In other words, your negligence isn’t even something that gets discussed until the jury is trying to determine the amount of money you will be awarded.

You can still move for summary judgment on the other party’s liability.

Either the plaintiff or the defendant may ask for summary judgment at any time.

In a summary judgment motion, the moving party is asserting that the facts of the case or certain portions of the case are so clear, so obvious, that they don’t really require hours of courtroom time to determine those portions of the case. The ability to ask for a summary judgment saves the court a lot of time and money.

It can also speed up your ability to recover funds. And, of course, it can strengthen your case each time the judge makes a summary judgment in your favor on the matter of any issue.

A recent case that affects how motions for summary judgment are made is the 2018 case Rodriguez v. City of New York New York. In Rodriguez v. The city of New York, the courts ruled that the plaintiff does not bear the burden of establishing the absence of their own comparative negligence in order to obtain summary judgment.

This is important because establishing a defendant’s liability is very important to a personal injury matter. Likewise, as is determining the amount of the damages that should be awarded. If your attorney can obtain summary judgment on your behalf, then you’ve won half the battle before anyone sets foot into a courtroom.

Percentages determine recovery.

There are lots of ways to contribute to your own injury. Perhaps you assumed a risk by taking certain actions. Or you failed to look for a hazard before moving. Or you failed to take a safety precaution you should have taken, such as neglecting to wear a motorcycle helmet or seat belt.

The jury will look at what you did to create the problem, and they will decide what percentage of that action contributed to the end result. For example, they might decide you are 30% responsible for the accident. They would then reduce the award you would have received had you been 0% negligent by 30%.

A personal injury attorney will work to minimize the level of negligence the jury assesses on your behalf so you can maximize your award. Be sure you retain any proof of, or document, anything you did to help minimize your own injuries or risk at the time of the accident.

You should also be careful what you say on social media because this evidence could be used to increase your percentage of contributory negligence.

Taking these steps can make a big difference to you when the case is done.

If you’ve been injured in an accident, call Richman Law Firm PLLC for a free consultation today.


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    Mr. Richman is the Managing Member and Founder of Richman Law Firm PLLC. In his role as Managing Member, Mr. Richman oversees the day-to-day operations of the firm and handles the litigation of the most complex legal matters across a vast array of practice areas and disciplines. ​

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