In American personal injury law, each state has its own laws and policies for negligence-related accident claims. Most states have “modified comparative negligence” laws. Under those laws, accident victims can only recover if they can show that they bore less than half of the responsibility for the accident. Three states have strict “contributory negligence” policies—in those, an accident victim cannot recover if they bore any responsibility at all.

New York is one of a handful of states with “pure comparative negligence” or “comparative fault” laws. In New York, an accident victim has the right to recover on their negligence claim even if they were partly responsible for what happened. Nonetheless, if they had any share of responsibility in the accident, that will reduce the monetary award they can claim.

How It Works

Say, for example, that Alice trips and falls on an icy sidewalk in New York City, breaking several bones. She has a right to claim against the owner of the adjoining property, Bob, for her medical expenses of $10,000. Alice’s attorney makes a demand for full payment. Bob’s attorney counters with a refusal to pay at all—because, he says, surveillance cameras show that Alice was texting at the time and paid no attention to where she was going.

If a court finds that Alice was 100% responsible for her accident, then Bob does not owe her anything. However, if Bob is found to be at all responsible—even by one percent—Alice has a claim against him. Her own percentage of responsibility reduces that claim, so if a court found that Alice was 90% responsible, Bob would owe her only $1,000. Nonetheless, he would still owe it. See Civil Practice Law & Rules § 1411.
In practice, most personal injury claims are settled through insurance companies and private negotiations, not through courts. Plaintiff’s attorneys and defense counsel, usually from insurers, investigate the facts and settle most claims before courts become involved.

Comparative Negligence and Car Accidents in New York

American states have two major policies governing car accident claims: at-fault and no-fault. In an at-fault state, people involved in auto accidents immediately file claims against the other drivers—or, in most cases, against their insurance companies.

New York, however, is a no-fault state. Under no-fault laws, drivers file claims on their own insurance policies first, and they generally receive payment regardless of their degree of responsibility. 

Drivers in New York are required to carry personal injury protection (PIP) policies of at least $50,000 to cover medical expenses and related losses for anyone in the driver’s car, with an option for at least $25,000 more. However, the skyrocketing costs of medical care—especially when more than one person is involved—can quickly consume the policy amount. What happens then?

When drivers and other parties involved in auto accidents sue each other, comparative negligence law applies. However, under New York’s no-fault law, the claimant only has a right to sue the other driver for medical damages if they have suffered a “serious injury,” which includes:

  1. Death
  2. Dismemberment, disfigurement, or a fracture
  3. Loss of a fetus
  4. Permanent disability
  5. Temporary disability of at least 90 days (as defined further in law)

See Insurance §§ 5102, 5104. 

Furthermore, PIP does not cover auto or property damage from car accidents. To recover for this, a claimant must file claims with the other party’s auto liability insurance. They also have the right to sue the other driver. 

Many drivers take collision insurance policies that pay for damage to their own autos and property without regard to fault. Once the insurance company has paid a collision insurance policyholder, the company can take the right to pursue that driver’s legal claims instead. 

Negligence and Evidence

Typical sources of evidence for personal injury claims include:

  • Police reports
  • Surveillance or traffic cameras
  • Social media posts and statements
  • Videos or photos from witnesses or participants
  • Timestamps from wired devices, such as personal phones

Of course, evidence for negligence—or the lack of it—depends on the situation at hand. A medical malpractice case will turn on doctors’ records and staff testimony, as well as evidence and testimony of the patient’s own behavior and compliance. Corporate records and reports will be key in a construction accident claim. 

Insurance adjusters will investigate incidents that give rise to claims as soon as possible, especially where auto accidents are concerned. Adjusters review the evidence and prepare reports that assign degrees of fault to everyone involved. Naturally, these reports are not objective. Insurers do not intend to pay out a dollar more than they have to. They may try to bluff other claimants out of money by denying claims or offering quick, small settlements based on faulty or irrelevant evidence—even if they have to use personal investigators to do it.

Protecting Your Rights in New York Accidents

New York law can be complicated, but experienced plaintiff’s attorneys know how to handle low-ball offers and tough negotiations. Just having an attorney to represent you in an accident claim can help elevate your chances of a fair settlement. Our Bronx personal injury attorneys have been fighting for decades to help clients recover and get the justice they need. Call us at 718-957-8695 to schedule your free case review today.