Wrongful death lawsuits provide critical support to certain family members who have lost a loved one in either an accident or a violent attack. At Powers & Santola, LLP, our goal is to obtain as much compensation as possible for lost services, loss of financial support, and other damages. However, one impediment to receiving maximum compensation is comparative negligence.
In most cases, the person who killed your loved one did so accidentally. However, it might also be true that your loved one was also negligent in the seconds before the fatal incident. In that case, you might find that you can’t receive as much compensation as possible. Our Albany wrongful death lawyer will explain the law of comparative negligence in greater detail.
What is Contributory Negligence?
Once upon a time, New York recognized the defense of contributory negligence. Essentially, if someone was even 1% at fault for an accident, they were prohibited from receiving any compensation. In a wrongful death claim, the deceased person’s negligence was what mattered. If they made some mistake—even a very minor one—which contributed to their fatal accident, then their loved ones were prohibited from receiving anything.
Some states still follow this law, like Virginia and North Carolina. Fortunately, New York has abandoned this rule and instead has adopted a comparative negligence scheme which is much fairer to all involved.
What is New York’s Comparative Negligence Law?
You can find the law section 1411 of the New York Civil Practice Law & Rules. The law says that in a personal injury or wrongful death claim, the deceased’s culpable conduct will not prevent financial recovery. So this is a change from the contributory negligence rule.
The law also states that any compensation the victim receives is diminished proportionally based on their degree of culpable conduct, or the percentage attributed to the deceased in a wrongful death claim.
If your loved one was negligent and partially caused the accident, then any available compensation is reduced by their percentage of fault. Imagine your loved one was 50% to blame for their pedestrian accident. In that case, a family can receive only 50% of the compensation they otherwise would qualify for. If your loved one was 80% to blame, then you would receive only 20%.
This law can have an enormous effect on the amount of money the defendant ends up having to pay. You should always ask an Albany wrongful death lawyer whether they are concerned about comparative negligence and how it might impact your case.
Collecting Evidence of Comparative Negligence
One key part of any wrongful death case is trying to figure out what happened. Sadly, one of the most important witnesses—your loved one—is no longer with us. Perhaps they survived the accident long enough to tell you how the accident unfolded. But many are unconscious before passing, so we never hear their side of the story.
Even worse, the person you believe injured your loved one could be pointing the finger at them. They have a direct incentive to do so, since they can minimize the amount of compensation paid to surviving family members.
You need an experienced lawyer who can investigate the accident and come back with important pieces of evidence to reconstruct what happened. Our law firm usually relies heavily on:
- Third-party witnesses who observed the accident
- Medical records and medical testimony, which can illuminate how fatal accidents happened
- Surveillance video or dashcam footage
- Physical evidence from an accident scene, like skid marks on a road or the damage to your loved one’s vehicle
Our investigations are thorough. After compiling all possible evidence, we are in a better position to establish your loved one’s degree of fault, if any.
Who Assigns Fault?
With a negotiated settlement, each side agrees to assign fault. Each side will present the evidence they found and then hammer out a compromise. Of course, negotiations happen against a backdrop of what happens if you can’t reach an agreement—the issue goes to a jury in a trial. So we try to look at all evidence objectively.
The quality of your lawyer matters considerably on this issue. More experienced Albany wrongful death attorneys can make compelling arguments that minimize your loved one’s alleged negligence. Our ability to build up a case by paying attention to detail works to our advantage in these situations.
Examples of Negligence
Your loved one might have been negligent in the following ways, depending on the accident:
- Car accidents: speeding, failing to yield, tailgating, passing illegally, and driving aggressively.
- Pedestrian accidents: jaywalking, crossing when told not to, and walking while wearing earplugs.
- Motorcycle accident: lane splitting, weaving in and out of traffic, and passing vehicles too closely.
- Bicycle accidents: failing to use turn signals or properly inspect and repair a bicycle.
- Medical malpractice: failing to follow a doctor’s instructions in preparation for surgery, taking too many pills.
- Slip and fall accidents: walking while checking a phone, failing to pay attention to where you step.
- Negligent security: carelessness in not locking windows or doors or letting a stranger into an apartment.
Interestingly, under New York law, it is not negligence to fail to buckle up in a car. So if your loved one failed to wear a belt, that doesn’t make them partially at fault for the crash.
However, there might be a connection between this failure to buckle up and the injuries they suffered. In that case, the defendant could raise the issue to consider whether your loved one reasonably mitigate their damages. Mitigation is separate from the issue of fault, though it can impact the ability of your family to receive a settlement and the amount available in compensation.
Contact Our Albany Wrongful Death Attorney
We are a team of dedicated wrongful death lawyers helping families in Albany who have lost a loved one in a tragic accident. If you have a question, please call us for a confidential meeting. We can help you understand whether you can bring a wrongful death claim and, if hired, will begin working on your case immediately.