How Pure Comparative Fault Affects Your Compensation

Here’s how you can seek financial compensation for your damages, even when the insurance company blames you for the accident.

Hospital emergency departments treat more than 39 million injuries every year.¹

About 13 million of the injuries reported each year in the United States are from slip and fall accidents, with nearly five million more caused by motor vehicle accidents.²

Accidents happen every day. But what if someone else is to blame for your injury? Whether you are injured from a slip and fall, car accident, dog bite, or another cause, you have a right to expect compensation for your medical bills and related costs.

If you live in a pure comparative fault state, you have the right to pursue compensation from the at-fault person or business, even if you are partially, or even mostly to blame.

Definition of Pure Comparative Fault

Pure comparative fault, also called pure comparative negligence, is a legal rule used in 13 states. The rule is used by insurance companies and in lawsuits to determine the percentage of fault, or negligence, each party has in an injury accident.

In pure comparative negligence states, unless you are proved to be the only one to blame for your injuries, you can seek compensation from the other party. Your total compensation is reduced in proportion to your share of negligence.

The difference between comparative negligence and contributory negligence:

Under pure comparative negligence rules, you are eligible to recover compensation from the other party, even if you are 99 percent to blame for your injuries. Insurance companies don’t like pure comparative fault rules.

Under pure contributory negligence rules, if you share any amount of blame for your injuries, even as little as one percent, you are prohibited from recovering any compensation from the other party. Insurance companies love pure contributory fault rules.

The rule of pure comparative negligence applies to car accidents, slips and falls, defective products, dog attacks, and other injury accidents.

The following states use pure comparative fault:



New Mexico
New York
Rhode Island

And then there’s South Dakota, where you can pursue compensation from the other party if you are slightly to blame for the accident. If you are grossly to blame, you’re prohibited from collecting any compensation.

South Dakota’s slight/gross comparative fault rule is controversial because there are no clear guidelines to determine how much blame can still be considered “slight.”

No matter where you live, you don’t have to accept the insurance company’s decision about your share of blame for an accident. A personal injury attorney will fight for your interests.

How Comparative Fault Affects Your Payout

How much money you can recover to pay for your injuries and related damages largely depends on:

  • The value of your injury claim
  • Your share of liability or fault for your injuries

If your injuries are from a car accident and you live in a no-fault auto insurance state, your medical expenses and related costs will be covered by your Personal Injury Protection (PIP) coverage no matter who was at fault. PIP does not pay for pain and suffering.

Pure Comparative Fault rules kick in when your bodily injury damages exceed the PIP limits, or are severe enough to allow you to bypass the no-fault rules in your state.

Under pure comparative fault rules, you can demand compensation for your injuries even when you share responsibility for your injuries. However, the amount of your compensation will be reduced according to your percentage of responsibility for what happened.

Example: Slip and Fall Accident

Vic was a cool guy. He wore his sunglasses all the time, even at night. Vic took his new girlfriend to a local nightclub. In the club, the lights were low. Vic kept his sunglasses on when he entered the club.

A waiter serving drinks to a nearby table spilled the drinks on the floor. The waiter immediately went to get a mop. People close to the spill saw it and walked around it.

Vic and his girlfriend decided to dance. As Vic walked to the dance floor, he slipped and fell on the wet floor, breaking his arm. He ended up in a cast and couldn’t work his construction job for two months while he recovered.

Vic filed a claim for $10,000 with the nightclub’s insurance company. Vic said someone should have cordoned off the wet floor.

The adjuster agreed the club had some liability for the wet floor but argued that Vic wearing sunglasses in a darkened room constituted negligence on his part. If he hadn’t worn his sunglasses, he would have seen the spill and avoided it.

The insurance company accepted 60 percent of negligence for the club and assigned 40 percent of negligence to Vic.

Vic settled his claim for $6,000, representing a 40 percent reduction in compensation for his share of negligence that caused his injury.

Example: Product Liability Injury

Barbara planned a cookout for her friends. Along with hot dogs and hamburgers, she bought several liter bottles of carbonated soda.

During the cookout, Barbara unscrewed the cap from one of the bottles. The pressure in the bottle burst the cap off straight into Barbara’s eye. Her injury damages totaled $10,000.

Barbara filed a lawsuit against the bottle manufacturer. She claimed their product was defective and that the manufacturer was 100 percent responsible for her injuries.

The defense called an eyewitness who said Barbara purposely shook the bottle to make the cap fly off “like a champagne cork.”

The jury found Barbara was 80 percent to blame for her injuries and the manufacturer was 20 percent liable. Barbara received $2,000, representing an 80 percent reduction to her compensation for her share of liability for her injuries.

Maximizing Your Compensation

In pure comparative fault states, you’re entitled to compensation even when you are mostly to blame for your injuries, so long as you aren’t the only one to blame.

When you share the blame for the circumstances that led to your injuries, the insurance company is more likely to settle your claim for a nuisance value than to flatly deny your claim.

That’s because before they send you a check, you’ll have to sign a settlement agreement and release. It’s worth it to the insurance company to throw a little money at you so long as you sign away your rights.

With the right evidence and expert help, you can demand appropriate compensation for your injuries.

Good Evidence Makes a Stronger Claim

Call 911:  Call for emergency services anytime you are suddenly injured. When paramedics arrive, let them treat you.  Refusing or delaying treatment can hurt your claim. The insurance company will argue the delay made your injuries worse than they needed to be.

Think before you speak: Don’t make excuses, apologize, or make any other admissions of fault after an injury. Everything you say can be used against you, even when you think you are being polite.

Never give a recorded statement when you are tired, medicated, or upset. Your best protection is to contact an attorney before answering questions from the insurance company.

Photographs: Take as many photographs and videos as you can at the accident scene. Include pictures that tell the tale of your suffering, like blood on the ground, you in a hospital bed, and your torn clothing. Take pictures of your injuries as you heal.

Contact witnesses: Witness statements can be powerful evidence against the other at-fault person or business. Talk to anyone who saw what happened and ask them to provide a written statement. Ask them for their names and contact information.

Get the Help You Need to Win

The insurance adjuster will say just about anything to shut down your claim for as little money as possible.

Insurance companies are notorious for offering less money to claimants who don’t have an attorney. They know that when they make their “final offer” you probably won’t have the energy or legal savvy to fight for fair compensation.

There’s too much at stake to let the insurance company decide if you were at fault or how much blame falls on you.

Don’t settle for less. There’s no obligation, and it costs nothing to discuss your case with a skilled personal injury attorney. Get the compensation you deserve.

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>