In today's blog post, I discuss the topic of comparative fault in a
personal injury lawsuit. What does it mean to you, how does it work in
front of a jury and what do we look at as attorneys when evaluating your
case. In today's blog, I discuss some of the things that we consider
when assessing our client's comparative fault in a personal injury
case that we file in Court here in New York.
Comparative fault is the concept in the law that allows a jury can assign
partial responsibility for an accident to a Plaintiff in a personal injury
action. It is assessed by a jury in circumstances where a defendant is
found to be at least partially responsible for an accident that caused
injuries to a Plaintiff. The jury instruction on comparative fault reads,
in part as follows:
If you find that the defendant was negligent and that the defendant's
negligences contributed to causing the accident, you the jury must next
consider whether the plaintiff was also negligent and whether the plaintiff's
conduct contributed to causing the accident. The burden is on the defendant
to prove that the plaintiff was negligent and that his or her negligence
contributed to causing the accident. If you, the jury finds, that the
plaintiff was not negligent, or if negligent, that his or her negligence
did not contribute to causing the accident, you must find that the plaintiff
was not at fault and you must go on to consider damages if any submitted
by the plaintiff. If, however, you find that the plaintiff was negligent
and that his or her negligence contributed to causing the accident, you
must then apportion the fault between the plaintiff and the defendant.
Weighing all the facts and circumstances, you must consider the total
fault, that is, the fault of both the plaintiff and the defendant and
determine what percentage of fault is chargeable to each. In your verdict,.
you will state the percentages you find. The total of those percentages
must equal one hundred percent.
Soooo, what does all this mean. Well, comparative fault evolved from the
contributory negligence concept originally which did not permit a plaintiff
to recover if they contributed to the accident in any way or if the plaintiff
had the last, clear chance to avoid the accident. For the past 50 years
or so, most states in our country permit a jury to consider comparative fault.
What is the classic example of comparative fault ? How about a person is
involved in a rear-end car collision and the driver of the vehicle that
was hit from behind was not wearing his or her seat belt. While the drive
of the vehicle that was hit may not have contributed to the happening
of the accident, the lack of wearing a seat belt may contribute to increases
injuries depending on the type of injuries that the person suffered.
Another example could be a slip and fall accident. The person that slipped
and fell almost always bears some responsibility for not paying attention
to where they are going, where they are placing their foot, and what type
of footwear they have on at the time of the accident. The defendant may
have a melt and refreeze situation that creates a pool of ice on a sidewalk,
but if its in your apartment complex and you have walked past it before,
you are going to have some knowledge of the situation and, if you are
reading a newspaper or looking at your cell phone on the way to your car
and wipe out while fracturing your ankle, you are going to bear some responsibility
for the accident. These situations are just a couple of scenarios that
we attorneys see again and again in personal injury litigation.
So what do we look for when evaluating your case ? We look for what a defense
attorney will look for when assessing your case. If it is a motor vehicle
case, did you have a valid driver's license at the time of the incident,
were you wearing your seat belt, how fast were you driving, what were
you doing when the incident happened, did your airbags deploy, if it was
sunny were you wearing sun glasses, were yo on your cell phone or texting
at the time, did the police issue a ticket to you at the scene of the
accident, if so what was the ticket for, was your car functioning properly,
were there other people in the car with you, what did they see or hear,
where were you traveling to, where were you traveling from, were you late,
were you sick, did an animal jump out in front of you causing you to operate
your car erratically - these are just some of the questions that we will
ask during the course of an initial consultation. Obviously, we consider
all this information in assessing the quality of your claim against the
other driver involved in your accident and we also consider the extent
of your injuries and the span of your medical treatment.
As you can see, comparative fault can come in many forms. Defense attorneys
are going to look for any form of responsibility that can be assigned
to you if you file suit and the more we as your attorneys know about your
case before we get further along in your case, the better off we and you
will be. So do not be afraid to tell your attorney everything that went
on and the information that you think may hurt your case if often the
most important stuff to tell your attorney so they can deal with it effectively.
So in closing, I hope none of you out there need to use our services, but
I know that you will at some point in time, unfortunately. If you or a
loved one in your family has been hurt in an accident, please feel free
to call me at schedule a free consultation and we will put you back on track.