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Can you recover for your injuries if you are partially at fault for either your car or slip and fall accident?

Posted by Frederic Abramson | Aug 22, 2020 | 0 Comments

If you were injured in an accident you may ask yourself, do I have a case?  Should I hire a lawyer? 

You may blame yourself because you think that the accident might be partly your fault.  You may ask yourself why am I'm in an awful mess and how did I get here? 

What happens if you may be partially at fault for your accident?

In New York State, if you or a loved one has been injured to the extent you share in any of the blame you STILL can bring a lawsuit and potentially recover monetary damages for your injuries.  Here's an explanation which should reassure you if you have any doubt.  

Lawyers in this state are governed by the CPLR (Civil Practice Law and Rules).  What you as a potential plaintiff need to know is that cases are not dictated in black and white, there is no all or nothing.  There is all the grey area in between.  That is where provisions such as CPLR 1411 come into play.  This statutory provision states "In any action to recover damages for personal injury, injury to property or wrongful death, the culpable conduct attributable to the claimant or to the decedent including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages". 

Still not sure?  

CPLR 1412 is relevant too.  That section provides "Culpable conduct claimed in diminution of damages, in accordance with section fourteen hundred eleven, shall be an affirmative defense to be pleaded and proved by the party proving the defense".  

How can this work for my case?  Do the courts agree?  

Recently, the highest court of our state, the Court of Appeals had the opportunity to examine the respective responsibilities of plaintiffs and defendants in determining culpable conduct.  The Court of Appeals' notable decision on April 3, 2018 in Rodriguez v City of NY addresses when and how a plaintiff's comparative negligence should be assessed in the application for partial summary judgment on the defendant's liability.  Summary judgment is a useful and powerful procedural tool for plaintiffs and defendants alike as an alternative to jury trial when appropriate.  Indeed, in today's COVID 19 times jury trials are not yet an available platform to resolve the dispute.  Summary judgment is a powerful platform however.  With summary judgment, the party seeking judgment asks the court to determine that there are no issues of fact which a jury, the finders of fact in our system, need to resolve.  The material facts are largely uncontested and thus judgment can be had as a a matter of law.  

Mr. Rodriguez was employed by the Department of Sanitation when he was severely injured during the course of his duties "outfitting" sanitation trucks with tire chains and plows.  As part of the job, he stood between a parked vehicle and a rack of tires outside the garage.  His co-worker, who was driving the sanitation truck, began to back it into the garage while another co-worker stood on the driver's side of the vehicle directing it.  This was a violation of departmental safety practices.  The truck skidded and crashed into the front of the parked vehicle, propelling it into the plaintiff and pinning him up against the rack of tires.  Accidents do happen.  

Mr. Rodriguez' attorney asked the court for partial summary judgment on the issue of the defendant's liability.  Since Mr. Rodriguez might have been partially responsible for his accident and injuries the defendant fought back. The issue of whether Mr. Rodriguez' negligence should bar partial summary judgment as against the defendant for it's liability went up to the highest court, the Court of Appeals.  The Court of Appeals held that Mr. Rodriguez' possible comparative negligence did not stop his attorneys from obtaining partial summary judgment on his behalf as to the defendant's share of responsibility.  

The Court of Appeals reasoned that summary judgment is a tool used by litigators, and the courts, to narrow the issues to be resolved by a jury.  A plaintiff can still be awarded partial summary judgment on the defendant's liability while leaving for a jury to fact find issues of plaintiff's comparative negligence in order to carry out the CPLR's objectives.  

Hence, rest assured, there are legal tools available to advocate for you when you are not in a black and white situation.  There is so little in our world, our economy, our lives which is so concrete and black and white.  No matter, we are here to advocate on your behalf and obtain the recovery you deserve.  Accidents happen and when they do leave the lawyering to us while you take care of yourself and recover from your injuries.  Even, even if you are somehow partially to blame.  

About the Author

Frederic Abramson

I am the principal of The Law Office of Frederic R. Abramson. Im an experienced litigator with experience in a wide range of legal areas. My practice encompasses civil litigation, business law, personal injury and real estate. I have handled litigation matters from inception to trial. I have co...


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