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Can I collect injury compensation if I was partly at fault?

Feb 11, 2019

A woman suffered a serious leg injury at a Disney resort. A Florida jury awarded her thousands of dollars in compensation — even though it determined she was primarily at fault.

Is this some miscarriage of justice? No. It’s called comparative negligence. It actually works the same way under New York law. It’s one reason you should never assume you have no legal claim. You could be entitled to partial compensation even if you contributed to your own accident.

Understanding the concept of comparative negligence

Negligence refers to carelessness or a failure to take reasonable precautions. In a personal injury lawsuit — a car accident, a slip-and-fall, a misdiagnosis -– the plaintiff will try to show how the other party was negligent. If they succeed in establishing negligence, they can assert damages (compensation).

The defendant will try to argue that they were not negligent or owed no duty to the injured party. The defense may also try to show that the plaintiff’s own actions or absent-mindedness contributed to the injury.

The doctrine of comparative negligence recognizes that both parties could be partly at fault. For instance, one driver is speeding and the other driver runs a stop sign. In an insurance claim or lawsuit, each party is assigned a relative percentage of fault.

Recent Florida case illustrates how comparative fault works

A tourist sued a Disney resort, claiming an employee ran over her foot with a food cart. The woman sought $11 million in damages for nerve damage and chronic pain in her leg. After hearing testimony of both sides, a jury determined the woman’s damages were worth about $59,000.

However, the jury declared the woman 60 percent at fault and the resort only 40 percent to blame. Under Florida law, you can still collect compensation if the other party was at fault in some degree. However, compensation is reduced by the percentage of your own comparative negligence. Since the plaintiff was found to be 60 percent at fault, the jury subtracted 60 percent of the damages and awarded her the remainder (about $24,000).

New York has the same standard for comparative negligence

In many states, accident victims are not entitled to damages if they are 50 percent or more at fault. This is known as modified comparative negligence. If found to be chiefly at fault, you would be barred from collecting damages.

But New York, like Florida, is a pure comparative negligence state. There is no minimum or maximum threshold. You could theoretically sue if you were 95 percent to blame (though if you won you would only get 5 percent of the damages).

The main take-away is not to make assumptions about your own degree of fault. An investigation might reveal that the other party was drunk, distracted, violating the law, or otherwise negligent. An insurance adjuster or jury might decide that your blame was comparatively small, or that the other party was equally at fault. In which case, some compensation is definitely better than none.

Most personal injury lawyers offer a free consultation to explore whether you have grounds to sue.


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