Q. I had an accident, but I may have committed some negligence myself. Nonetheless, I suffered significant injuries. Can I still recover compensation for my pain and suffering, unreimbursed medical expenses, and lost income?
A. In most states, including New Jersey and New York, absolutely, positively YES!
Just because you may have been partially at fault for an accident does not automatically disqualify you from receiving compensation. However, there is a good chance that your partial fault may result in a reduction of the amount of compensation.
Please also remember that, just because you think that you were partly to blame for an accident, does not necessarily mean that you had any “legal” fault. What an average person thinks as being “at-fault” is not always the same thing as what the law says.
Moreover, even if you do bear some “legal” fault for your accident, the law in most states still allows you to receive compensation. It all depends on HOW MUCH you were at fault. (In a few states, ANY “contributory negligence” on your part disqualifies you from receiving compensation. Fortunately, New York and New Jersey are not among those states. The examples I give below all assume that your accident took place in New Jersey or New York.)
For instance, say you retain an experienced personal injury lawyer, as you should. Your case proceeds to court. At trial, the jury will decide how much each party to the accident was at fault. Imagine that the jury finds that you were 20% at fault. It grants you an award of money as compensation.
YOUR NEGLIGENCE MAY NOT RUIN YOUR CASE
What will then happen is that your award will be reduced by your percentage of negligence. Thus, in the preceding example, you will lose $200 out of every $1000 of your award.
Now let’s change the facts. Say the jury finds that you were 50% responsible. Then you would lose $500 out of every $1000 of your award.
Q. But what if I was MOSTLY at fault for the accident?
A. OK, imagine that the jury finds you mostly at fault. In other words, you were more responsible for the accident than the other party. Here is where New York and New Jersey differ. In New York, the same procedure as above would be used. If your share of the negligence was, say, sixty percent, you would lose $600 out of every $1000 of your award.
However, in New Jersey, if the jury finds that you were mostly at fault (i.e., more than fifty percent), you will receive no award at all.
(To get technical, the New York system is called “pure comparative negligence.” The New Jersey procedure is known as “modified comparative negligence.”
WHAT ABOUT SETTLEMENTS?
Q. How does all of this relate to out of court settlements?
A. Most cases actually settle out of court, with no need for a trial. In these cases, the attorneys involved will take into account any negligence on your part in negotiating the settlement award. In other words, the more negligent you were, the lower your settlement will likely be. Accordingly, if you were mainly to blame, it may not be possible to obtain an out of court settlement, particularly in New Jersey.
Q. How do I know EXACTLY how much at fault I was?
A. Again, I must emphasize that you should NEVER ASSUME THAT YOU WERE AT FAULT in any way for an accident, without speaking first to an experienced personal injury attorney. Remember, even if you did commit some negligence, you very well still may be able to recover monetary compensation for your injuries and expenses.