What Does “Comparative Negligence” Refer To?
Comparative negligence refers to a concept that involves addressing a situation where more than one party may be at fault for the happening of an accident. Even if the owner of property was negligent and caused the accident, there may be partial responsibility/fault on the part of the victim or others as well that gave rise to the accident.
When there is an accident and the case goes to trial, the jury will use 100 percentage points to decide who is at fault for the accident. It will be up to the jury, under the law given by a judge and based on the evidence heard during a trial, to determine out of the 100 percentage points which party or parties, including the plaintiff, bear responsibility. All parties must take responsibility under the law when determining who is at fault for an accident that occurs, whether it is walking, going down steps or driving a car.
A jury might find that although the defendant is responsible for the accident, so is the plaintiff. Therefore, comparative negligence can diminish the amount of damages the defendant must pay under the law. This can occur as follows: say your injuries have a value of $100,000, and the jury finds that the defendant is 50% responsible and that you as the plaintiff were 50% responsible for the happening of the accident because you were not watching where you were walking. Well, then the $100,000 award will be reduced by 50% due to your own comparative negligence by $50,000. So even though the jury may have awarded you or assigned $100,000 as a value because of your injuries, the court will automatically cut the award in half because the same jury found you 50% at fault for the happening of the accident as well.
Must the accident report be filled out at the time of the fall inside an establishment or store?
Absolutely not. Many stores simply do not write up accident, incident or occurrence reports even when they are supposed to. Whether or not an accident report is filled out does not determine whether or not the case, lawsuit or claim has validity.
Oftentimes, an accident report will be filled out. However, these establishments will usually not permit the injured party to sign or fill out the accident report because the store does not want the statement of the injured party on the accident report. This is because the statement from the victim will often be detrimental to the store and does not help the establishment in defending against a claim where the store was negligent and failed to use proper care in maintaining the location in question.
When businesses and stores do fill out reports, it is usually done to protect them or to potentially benefit them so you don’t really get a full, complete or accurate history of what caused the accident. Many times, these reports do not even have an area that calls for any investigation after the accidents to determine or indicate what the cause of the accident was. This is purposely done so there is no explanation readily apparent as to why there was an accident. Yet the employee in charge of reporting the accident is fully aware of what went on and why the accident happened. As a lawyer who has handled countless numbers of slip-and-fall accidents in stores, it never ceases to amaze me how little information exists on these reports intentionally. But ultimately the truth will come out.
But most importantly, you should know that merely because no accident report exists does not mean that you cannot assert your rights in order to receive full compensation for the wrongs committed against you.
What does the term “statute of limitations” mean? How does it apply to slip-and-fall cases?
The “statute of limitations” refers to the period of time one has in order to legally or formally commence a lawsuit after the occurrence of an accident.
New York has a different statute of limitations depending on the circumstances and who is involved. If the city of New York is involved in a slip-and-fall case because the city did not maintain or take care of a particular location, there would be a shorter statute of limitations. This means that the amount of time a person has to sue is much shorter when compared to the time he or she would have if a private entity or individual were involved.
Usually, the statute of limitations for slip-and-fall accident cases involving private entities or individuals is three years. This means that the case must formally begin (be filed in court) within three years of the occurrence of the accident.
However, if a governmental agency or entity is involved, like the city of New York, then the statute is much shorter. When dealing with New York City, for example, the statute of limitations is usually one year and 90 days. With other agencies, the time period could be even shorter. This is why a person must see a lawyer to receive guidance right away and to gain knowledge of this very important legal issue.
In fact, with municipalities and other governmental agencies, it gets even more complicated because in addition to the “statute of limitations,” there are other legal requirements that have time limitations before an actual lawsuit can be formally commenced in court. This is referred to as a notice of claim requirement, which is a precondition to filing a lawsuit. If the city of New York or another government agency is involved, a notice of claim must usually be filed within 90 days of an accident. If the 90-day time period has passed, there are steps we can often take to seek permission to file the notice of claim late, but permission is needed from the court. Therefore, a person needs to see a lawyer who is qualified with experience as soon as possible in order to navigate these situations.
As you can see, many cases can become very complicated.