Comparative negligence in pedestrian, cycling accident cases

In our last couple posts, we looked at a recent spate of pedestrian and cyclist deaths in New York City, noting that three of the four accidents were hit-and-run incidents. As we pointed out, pedestrians and cyclists have rights and should not assume that they have no possibility of recovering damages after an accident, despite the occasional bias they may encounter with law enforcement.

That being said, pedestrians and cyclists should be aware that, in seeking compensation for damages caused by a negligent motorist, they may themselves be subjected to allegations of negligence. This can occur when the pedestrian or cyclist may have taken some sort of unsafe action that ended up contributing to the accident. This is known as the doctrine of comparative negligence.

A fair number of states recognize some form of comparative negligence. The basic idea is that a plaintiff may have his or her damages reduced in proportion to his or her degree of fault for the injuries. Under New York’s comparative negligence law, an injured party may recover damages in cases where he or she is deemed to have been negligent, even if the individual is 99 percent at fault. This is known as pure comparative fault. In other states, a plaintiff may only have the ability to recover damages if he or he is less than 50 percent of 51 percent at fault.

Comparative negligence involves a jury’s consideration of apportionment of fault. This isn’t always an easy matter to navigate. There are no hard and fast rules to determine exactly how to assign liability, so the key for a plaintiff is to build the strongest possible case to convince the jury that the defendant’s negligence was greater than that of the plaintiff. Here in New York, this isn’t such a pressing concern, but a plaintiff should always seek to maximize his or her damages.

In our next post, we’ll look at the issue of punitive damages in hit-and-run cases.