How is responsibility for an accident determined?
When someone involved in an accident relates how the accident happened, most times they attribute the “fault” for the accident to the other party. “He was speeding while I made the left turn”; “he had the red light “, “the bulb was out on the stairway”; in each instance the presumption being that another person was the cause of the accident, and therefore the other person was “at fault”.
For those of us dealing with accidents every day, we have come to expect “two sides to every story”. This does not necessarily mean someone is lying. It very often means that two people just see things differently. Police will tell you that witnesses to the very same occurrence will often see different, if not contradictory, aspects of the same event. That is human nature.
Except for the rare situation where identifying where fault lays–for example a “rear end” auto collision–where the car being hit squarely in the rear is virtually never held to have any fault whatsoever–most cases have some apportionment of fault.. If a case goes to trial and there is a jury, then the jury will be asked to decide to what extent each party is at fault for the accident. The jury, based on the evidence presented, can decide any combination of responsibility from 0% for one party and 100% for the other, or any percentage breakdown in between. The jury is determining the “LIABILITY” of each party.
In the event the matter is settled before there is a trial, then the lawyers for each of the parties will have to agree on the percentage of “LIABILITY” of each party before they can reach a settlement.
The lawyers, or the jury, are comparing the negligence, or fault, of each party. New York has a “COMPARATIVE NEGLIGENCE” system. The negligence, or fault, of each party is apportioned. Then, when the parties, through their lawyers, or the jury, decide how much the injury sustained by the injured party is worth, they can decide exactly how much the injured party actually will receive. If, for example, it is determined that the fractured ankle suffered by the driver of a vehicle is “worth” $100,000, and it is decided that the driver was himself 50% responsible, then the driver will only receive $50,000, and not the full $100,000.
Negotiating the settlement of a personal injury lawsuit is, more often than not, as important as being able to successfully take a case to trial. As personal injury attorneys will tell you, the vast majority of lawsuits are settled before the completion of a trial. Negotiations are crucial to obtaining a result with which the client will be satisfied and which will fairly and adequately compensate the client for his or her injury. There is no substitute for experience and, if possible, references by previously satisfied clients, when choosing an injury attorney to represent you.
Posted by New York Accident Injury Attorney Steve Orlow