In the state of New York, when you are the injured party, if you sue for compensation, your own culpability will always come into question. No matter how unfair that might seem to be, the law requires that we all bear responsibility for our actions. If you are walking on an uneven sidewalk, for example, and you trip and fall, opposing counsel on behalf of the insurance carrier can look through your medical history and find that you must wear glasses in order to see properly.
If you were not wearing your eyeglasses during the accident, they might point to your poor eyesight and your own “negligence” for leaving the house without your glasses as a contributing factor in the accident. Or, if you are cut off and hit by another car, and an investigation finds that you were driving above the speed limit, a carrier can attempt to say that you had a part in the accident.
How does that affect the amount of compensation you get? It allows an insurance adjuster to review the incident and assess fault percentages to you and the person or entity responsible and could lower the amount of money you receive. Let’s say that he/she assesses that your “negligence” in failing to wear your eyeglasses contributed at least 10% to your trip and fall accident. That could mean that instead of receiving a total of $20,000, you would receive $18,000 – $2,000 less than full compensation. Or, if you were cut off and hit as a result, that 10 miles an hour you were going over the speed limit could mean you get 20% less compensation.
This shared fault is called “pure comparative negligence rule,” and whenever possible, opposing counsel will try to use it. Your first line of defense, of course, is to make sure to drive the speed limit. But after the fact, make certain you disclose all of these details to your personal injury attorney. If you know you were speeding, tell that to your attorney. If you know you left the house without your eyeglass, tell your attorney.
While you may receive a small percentage less than you feel you are entitled to, in the end, nothing more adversely affects the outcome of your case than failing to be completely honest with the person representing you.