It’s logical to worry that if you’ve been injured in an accident and you think you were partly responsible, you wouldn’t be able to recoup any losses from other parties. In some states, that can be the case. However, New York is a comparative fault (also known as comparative negligence) state. That can make personal injury a complicated affair. Still, it’s worth working with an experienced personal injury attorney who understands comparative fault and knows how to investigate the cause of the injury to determine what damages you may be eligible to receive.

What Is Comparative Fault?

Comparative fault is the process by which the courts assign each party a percentage of the liability for the injury-causing accident. However much blame is assigned affects the total amount of the damages awarded. If someone is determined to be 40% at fault for the accident that caused their injury, then the total amount of damages they’ll receive could be reduced by 40%. For example, two cars collide, and someone is injured. However, one driver was speeding while the other ran a red light. If the court determines that the injured person should receive $10,000 in damages but finds they were 40% at fault for the accident, they’ll receive $6,000 instead of $10,000.

This differs from states that rule that if someone is at least 50% responsible for the accident that caused their injuries, they can’t receive any damages. In New York, someone could be deemed 99% responsible and still receive 1% of the damages.

How Do the Courts Determine Comparative Fault in New York?

Comparative fault is usually determined in a courtroom by a jury. The injured party, known as the plaintiff, must prove that the defendant was largely at fault for the accident that caused the injuries. There are four points that the plaintiff’s case must make (and they must prove all four):

Duty. This means that the defendant had a duty to exercise appropriate care or caution while driving or by keeping premises safe (such as taking steps to mitigate icy sidewalks, etc.).

Breach of duty. The defendant did not take the caution and care a reasonable person would.

Proximate cause. The defendant’s breach of duty led to the accident.

Damages. The plaintiff was injured because the defendant breached the duty.

What if There Are Multiple Defendants?

This is a more complicated situation that involves joint and separate liability. This legal framework says that if one of the parties is liable but doesn’t have the insurance or funds to cover the damages, the other parties may be held responsible for some of those damages. It involves someone being able to sue the various parties separately and jointly for the injuries sustained in the accident.

How Can I Prove the Other Party Was Mostly at Fault for the Accident in Which I Was Injured, Even if I’m Partly at Fault?

There are several tactics and techniques that experienced personal injury attorneys will use to establish where the bulk of the fault rests and potentially all of the fault. Several forms of evidence can be used, including:

Medical records. These are critical for proving that the plaintiff did, in fact, sustain physical damages (or mental health damages, such as post-traumatic stress disorder).

Witness testimony. If there were bystanders and witnesses to the accident, they should provide testimony via deposition and potentially in court.

Police records. As soon as the accident happens, if someone is physically able, they should call the police and file a report. The report doesn’t necessarily establish fault, but it can include conditions at the accident scene and what may have been contributing factors.

Expert witnesses. There are times when experts will testify as to how and why they think the accident happened and who was at fault.

Security videos. If there are security cameras on homes or businesses that may have caught the accident on video, that video may become part of the evidence.

Other records. These can include cell phone records, which could show the driver at fault was on their phone at the time of the accident, or drug and alcohol tests that are conducted after the accident.

What Should I Do if I’ve Been Injured in an Accident I May Be Partly Responsible For?

First, seek medical attention right away. Some injuries don’t present symptoms immediately. If you delay, the other side may claim your injuries occurred after the accident because you didn’t get checked out by a doctor. Then call us at 718-829-7400 for a free case evaluation. Often when people are injured in an accident, they may feel a sense of personal responsibility that’s not necessarily warranted. Sometimes there’s a sense of shame from having been in an accident when in fact, they may not have contributed to it at all. We can help you through the process of determining where the actual liability rests and how to pursue damages for your injuries.

We recommend that you don’t talk with anyone else involved in the accident, whether it’s another driver, the property owner where you slipped and fell, or someone in charge of the workplace where the injury occurred. They may try to have their attorney or insurance representative contact you. Their goal is to get you to accept most or all of the blame for the accident or at the very least, to accept a settlement far lower than what you might be eligible for. Don’t have any discussions with them or sign any documents. Instead, refer them to your attorney.

Post-traumatic stress disorder (PTSD) is not the first thing people think of when they’ve had an injury that causes them to be unable to work. Most people think of physical incapacitation, such as broken limbs, paralysis, loss of vision, or other conditions that make it difficult or impossible to do their job. PTSD may not be a physical impairment, but it can be as debilitating as the worst bodily injury, especially if combined with a physical injury. Here’s what you need to know.

What Is PTSD?

PTSD is a disorder that occurs in people who either were in or witnessed a traumatic event, such as a workplace injury or car accident. In the years around World Wars I and II, it was called shell shock and battle fatigue. Regardless of the name used, it’s a debilitating, sometimes frightening condition that can have intense effects on day-to-day life. 

According to the American Psychiatric Association, there are four broad categories of PTSD symptoms.

Intrusion. This refers to how the traumatic event can replay itself over and over in the victim’s mind, sometimes so vividly that it feels like the event is really happening again. The person has no control over these visions, neither able to predict nor stop them. 

Avoidance. Not surprisingly, the victim wants to avoid thinking or talking about the injury to avoid having those horribly vivid memories return. That can lead to them being unable to visit the place where the accident happened, meeting other people who were present at that time, or even doing anything that reminds them of the accident. 

How Long Can PTSD Last After an Accident?

It varies from person to person, but PTSD may begin as soon as a month after the accident, but it can also not appear until a year later. Once it starts, it can last for months or years. There are several treatments that people can try to alleviate the symptoms, such as talk therapy, cognitive processing or behavioral therapy, or some medications. There’s no guarantee that PTSD will disappear entirely, but there are good opportunities to at least reduce its overall effects.

Can PTSD Make You Unable to Work?

Absolutely. With PTSD, a person’s ability to function normally can be disrupted in multiple ways that can make it impossible for them to work. Because PTSD can cause problems with everything from memory to energy levels to focus to being able to manage emotions, it has many ways to disrupt your day-to-day work life.

But beyond the mental and emotional complications, the stress of PTSD can also cause additional physical problems. Extreme fatigue and recurring physical pain are just some of the physical conditions that can manifest because of PTSD.

Can I Get Workers’ Compensation or Social Security Benefits if I Have PTSD from an Accident?

It’s possible that you may be eligible for benefits of some type if your PTSD after your accident makes you unable to work. It’s highly advised to work with an attorney that specializes in personal injury outcomes, as the law is complex, and there are many requirements that must be met. Having an attorney who’s well-versed in those requirements can help the process go more smoothly.

Social Security benefits. Social Security offers disability benefits for people living with PTSD. The agency will want thorough medical verification of your diagnosis, including all medical records (doctor, clinic, hospital, counselors, mental health, and physical/occupational therapists). If you’re working with a mental health provider, you’ll want them to provide a document called a Residual Functional Capacity form. This form goes explicitly over how PTSD has affected your ability to do your job. That can bear a great deal of weight for the Social Security Administration.

Workers’ compensation. If the accident that caused your PTSD occurred at work, you may be eligible for workers’ compensation. While some states require a physical injury to qualify for workers’ compensation, in New York, PTSD alone is enough to file a claim. That includes someone who was not directly involved in a workplace accident but witnessed it and was subsequently traumatized. This compensation has paid time off, treatment, and other resources. It’s a time-sensitive claim, so be sure to bring in an attorney to ensure you don’t miss deadlines. 

What Should I Do if PTSD from an Accident Has Made it Impossible for Me to Work?

Call us at 718-829-7400 for a free case evaluation. PTSD is a complex, frightening condition, and being pushed to resume work when you’re not ready or able can worsen it. Our team of experienced, knowledgeable attorneys can walk you through the process of claiming disability due to PTSD, so you can have the time and space you need to cope with the trauma you’ve experienced and learn how to manage or reduce it.

There are states that put limits, called “caps,” on the amount of damages awarded in personal injury cases. New York is not one of those states. In New York, someone can be sued for any amount of damages. Of course, that doesn’t mean they’ll be awarded the full damages. That depends on the nature of the case and the evidence introduced. To understand what kinds of damages are available and how they might be acquired, continue reading.

What Types of Damages Are Recognized in New York?

There are essentially two types of damages people can file claims for in New York, punitive and compensatory.

• Compensatory Damages. As the phrase implies, compensatory damages are meant to compensate the injured party for quantifiable losses they sustained because of the injury. That could be medical expenses for bodily injuries that needed treatment, or it could be damage to property that requires repair, such as bodywork on a vehicle. These are specific damages that have actual dollar values to them that are proven by receipts. 
• Punitive Damages. These are less quantifiable and largely up to the judgment of the courts in terms of values and dollars awarded. They’re also not relevant to every personal injury case. Punitive damages come into play if the injury was the result not of a basic accident, but because of actions that were negligent, malicious, or reckless. An example of this is a drunk driver, which could be considered all three of those. Punitive means that someone had even more fault and thus could be responsible for higher payouts than those strictly related to quantifiable receipts. 

In New York, the injured person can file claims for both compensatory and punitive damages, as long as the latter’s threshold of negligent, malicious, or reckless behavior is met.

What Variables Do the Courts Consider When Awarding Damages?

There are quite a few. Each personal injury case is unique and has its own set of variables, so it’s not easy to make a blanket statement about what’s involved. In general, here are some of the factors that will be used to determine liability and damages.

Severity of the Injury. The damages rewarded to someone who had a minor injury, such as a sprained ankle, versus someone who had a major injury, such as someone who became paraplegic or blind because of the accident, are obviously going to vary. 

Time Needed to Recover. Some injuries heal quickly; others take months or even years. There’s also the issue of whether someone loses wages because they’re unable to work due to the injury and its recovery period. In some cases, someone could lose not only their job, but their ability to perform in that career area altogether and need time to train for a new type of career. 

Potential Liability of the Person or Business Responsible for the Injury. If the accident was truly an accident with no intent or negligence involved, damages will be lower than if the plaintiff can demonstrate otherwise. For example, if someone slipped and fell on an icy sidewalk, but the property owner had put out salt or sand and made a sincere attempt to keep the sidewalk clean, the damages would be less than someone who clearly made no effort to mitigate the ice.

Insurance Coverage. How much insurance will pay for the damages can be balanced against any out-of-pocket.

What Should I Do if I Have a Personal Injury Case to File Against Someone I Believe is Liable for My Injury or Property Damage?

First, call the police. Whether or not the accident was minor doesn’t matter. A police record is a relevant piece of evidence in personal injury claims. If possible, try and document the scene of the accident or injury as much as possible, including taking photos and videos with your cell phone to show the conditions involved in the injury. That can be showing uncleared or unremediated icy sidewalks, poorly lighted stairs, or a car that ran a stop sign and hit you when you had the right of way. If there are witnesses, get their names and contact info, along with that of the other driver (if car accidents occurred). Take a quick look to see if there are neighboring buildings, either business or residential, that may have security cameras that could have footage of the accident.

Then call me as soon as possible at 718-829-7400 for a free case evaluation. Personal injury cases are complex and benefit from having an experienced, knowledgeable personal injury attorney working on them. I want to help you recover fully, both physically and emotionally, from the sometimes traumatic conditions personal injuries can cause. I also want to help you get the damages you deserve.

If there was another driver involved in your injury, you may be contacted by their attorney or insurance agent. If the personal injury was something like a slip and fall on someone’s property, you are not as likely to hear from them until you set about making a claim or filing a suit. Either way, it’s best that you don’t speak directly with either the insurance agent or the attorney, but instead refer them to me. They represent the other side and have as their primary goal paying out nothing or as little as possible. They may try to get you to settle directly with them, but in doing so, you may get far less in damages than you deserve. Let me handle the discussions and negotiations, as I know what tactics they might use to drive down the damages or even try to find ways to blame you rather than their client.

Rideshare services such as Uber and Lyft have become wildly popular in recent years, and the explosive growth of these services also created new legal concerns. Car accidents can be complicated to begin with, but adding a third party in the form of a rideshare driver adds an extra layer of complexity. The laws around this are still evolving, so having access to legal representation is highly recommended. Taxis have been around much longer, but New York law views them somewhat differently from rideshares. Determining liability in an accident with an Uber driver can take extra time and investigation and will likely involve multiple insurance companies and possibly numerous attorneys. Here’s what you need to know about being injured in an accident with a rideshare driver.

Can I File a Claim Against Uber or Lyft if Their Driver Was at Fault?

This is where things become tricky. Currently, Uber and Lyft drivers are not employees of those companies. They’re considered independent contractors, which means they’re essentially the owner of their own businesses, and the rideshare companies contract with them to provide services. The rideshare companies don’t pay them salaries or provide benefits like they do with employees. But that can often mean that the rideshare companies aren’t liable for them either–the driver’s own business could be the responsible entity.

This could change as time goes on. Some lobbying groups are working to have rideshare drivers reclassified from independent contractors to employees. If that happens, it could affect the liability laws going forward. An experienced personal injury attorney will monitor this evolving scenario and have the most up-to-date information.

What Is Considered a Rideshare Accident?

In New York, there are four scenarios recognized as rideshare accidents:

• Someone is injured in an accident while riding in a rideshare they hired.
• The rideshare driver is injured during the course of paid business (which means in the act of picking up, driving, or dropping off paying passengers from the point of origin to their destination).
• The driver of another vehicle is injured in an accident with a rideshare car during the course of paid business.
• Passengers in a non-rideshare vehicle are injured in an accident with a rideshare car vehicle on its way to pick up a paying passenger.

How Do Insurance Companies Determine Liability?

In the state of New York, rideshare drivers are required to have at least $100,000 of personal liability insurance. The rideshare companies also have insurance. However, that doesn’t mean that both insurance companies will provide payments for your injury. Much is based on the specific time period in which the accident occurs:

The rideshare driver has the rideshare app turned off and isn’t looking for customers. At this point, the driver’s insurance would be involved if there’s an accident.

The rideshare driver has the rideshare app turned on and is waiting for customers. This is possibly when the rideshare company’s insurance would be involved in an accident.

The rideshare driver is selected by a customer. This phase starts when the ride is accepted and ends when the customer reaches the destination. This is the most likely phase for the rideshare company’s insurance to be involved.

But even then, there are more considerations in play that determine who will pay damages and how much compensation will be distributed. If the Uber driver is at fault, either they or the rideshare company (or possibly both, depending on the extent of the injuries) could be liable. If the accident involved another non-rideshare vehicle, and that vehicle’s driver was at fault, they may be responsible. That’s also a situation where there would likely be multiple insurance companies and attorneys trying to sort out exactly what happened and who’s at fault. This is when hiring an experienced attorney is especially highly recommended.

What Should I Do if I’ve Been Injured Because My Uber Driver Had an Accident?

First, if you’re physically able, call the police. In New York, accidents that cause injury, death, or property damage of more than $1,000 must be reported to the DMV. Even if the accident seems minor, filing a police report can help with your claim later on. In addition, document the scene as best you can (cell phone photos and videos work well) and try to get names and contact information for everyone involved in the accident and of any witnesses. Finally, report the accident both to your own insurance and to the rideshare company. Notifying these two entities is not the same thing as filing a claim, but some insurance companies require notification of an accident within specific periods of time, or they can reject the claim when you do file it.

You may receive contact from the driver’s insurance company or attorney. It’s vital that you don’t have a conversation with them. If you’ve hired an attorney, refer them to that attorney, and if not, simply say no comment. The driver’s insurance company and/or attorney is going to look out for the best interests of the driver, not you, and their goal is to get any damages or settlement to be as low as possible. They may try to get you to say things that could be construed as meaning the driver wasn’t at fault. These conversations are better handled by the attorney representing your best interests.

Then call me at 718-829-7400 for a free case evaluation. Cases involving rideshare companies such as Uber and Lyft can be complex, and you’ll benefit from working with an experienced, knowledgeable attorney who will work hard to get you the financial compensation you deserve. Such accidents can be frightening and demoralizing. I understand that and want to see you able to fully recover if possible, and that’s physically, emotionally, and financially.