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What is the effect of contributory negligence in New York?

In the 19th century courts had to deal with cases in which the defendant in a negligence action alleged that the plaintiff was also negligent in causing his or her own injury. In response, courts devised a rule known as "contributory negligence."

The original contributory negligence doctrine was harsh. It held that if the plaintiff was negligent in the slightest degree, that served as a complete bar to any recovery. Measured in terms of percentages, the defendant could be 99 percent at fault and the plaintiff one percent at fault, and the defendant would win the case and owe the plaintiff nothing.

Over time, courts began to look for ways to ameliorate this all-or-nothing characteristic of contributory negligence, and gradually a new doctrine of "comparative fault" came into existence. Most states today use some form of comparative fault, the majority holding that if the plaintiff is partially at fault in a negligence lawsuit then as long as the plaintiff's share of blame does not exceed 49 percent he or she is still allowed to recover damages, less the percentage of the plaintiff's negligence.

What this means is that in most states if the plaintiff wins a damages award of $100,000 but the jury finds that the plaintiff was 49 percent at fault for the accident, then the plaintiff's award will be reduced to $51,000. Note, however, that in these states if the plaintiff is 50 percent or more at fault than the old rule of contributory negligence applies and bars any recovery at all.

New York, however, is a "pure" comparative fault state. What this means is that even if the plaintiff is even found to be mostly at fault, he or she is still able to collect whatever damages are allocated to the defendant. Theoretically at least, this can lead to an inversion of the original contributory negligence doctrine: the plaintiff can be 99 percent at fault in New York but still be able to recover one percent of the damages award.

If you have been in a car accident and the other driver is claiming that you are at least partly to blame for it, you may wish to speak with a personal injury attorney to help you understand whether comparative fault will apply in your case and what effect it may have.

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