When a lawsuit is brought for damages caused by an accident, the judge or jury must decide who caused the accident, since more than one person may have been negligent, including the person who is bringing the lawsuit. Once the amount or percentage of negligence has been determined for each person, damages are awarded as determined by the system of fault the state follows. There are four predominant systems used throughout the United States: “contributory negligence,” “pure comparative fault,” and “modified comparative fault,” which has two different modification options. There are also a handful of states that have their own unique systems of determining damage awards.
New York follows the doctrine of pure comparative fault.
Contributory negligence bars any recovery by the person bringing the lawsuit if they were responsible for the accident in any way. Thus, if the judge or jury decides the person who is bringing the lawsuit is even one (1) percent at fault for causing his own injuries, the person bringing the lawsuit may not recover any damages.
Pure Comparative Negligence
In a pure comparative negligence system, the judge or jury decides how much fault should be allocated to each person responsible for an accident, and then apportions the amount of damages accordingly. For example, if a person is found to be 40 percent at fault for causing his or her own injuries, then the other party or parties responsible will only have to pay 60 percent of the plaintiff’s damages. This is based on the percentage of fault assigned to each of them.
Modified Comparative Fault
There are also states that use a modified comparative fault system. Just like a pure comparative negligence system, a judge or jury decides how much fault should be allocated to each person responsible for an accident and apportions the amount of damages accordingly. But unlike a pure comparative negligence system, a limit on the percentage of fault of the person bringing the lawsuit is used. There are two different limits used: the 50 percent fault rule and the 51 percent fault rule.
The 50 Percent Fault Rule
If the 50 percent fault rule is used, the person bringing the lawsuit cannot recover if he or she is 50 percent or more at fault, but if he or she is 49 percent or less at fault, recovery is reduced by his or her degree of fault. Thus, a person who is found to be 50 percent at fault will recover nothing, whereas a person who is found to be 49 percent at fault can recover 51 percent of his or her damages.
The 51 Percent Fault Rule
If the 51 percent fault rule is used, the person bringing the lawsuit cannot recover if he or she is 51 percent or more at fault. This follows the principle that a plaintiff who is more negligent than a defendant should not be able to recover anything. Here, if the person bringing the lawsuit is 50 percent at fault, he or she can recover 50 percent of the damages, but cannot recover anything if found to be 51 percent or more at fault.
In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and file a lawsuit prior to the deadline imposed by the statute of limitations. If you or a loved one is a victim of personal injuries, call McPhillips Fitzgerald & Cullum LLP now at 518.792.1174 or submit a simple case review form. The initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.