On May 28th, Governor Kathy Hochul signed into law this year’s New York State Budget. The budget was eight weeks late, and will negatively impact those injured in automobile accidents.
Comparative Fault
The budget changed the law on “comparative negligence” in motor vehicle accidents. New York has always been a “comparative fault” State. Comparative fault means that the at fault party only pays the percentage of damages they are liable for, and thus the party suing, (plaintiff/claimant), will have their recovery reduced from their full damages, by the percentage the plaintiff is at fault. So, if a plaintiff suing was found to be found 50% at fault for a car accident, they would recover 50% of their damages. Similarly, if the plaintiff was found to be 49% at fault for a car accident, they could recover 49% of their damages. In cases where the plaintiff was found to have no fault, the plaintiff would receive 100% of the damages awarded.
However, under the new law, a plaintiff/claimant will be barred from recovery if the fault attributable to the plaintiff is found to be greater than the combined fault of those being sued. So, in all new cases, a plaintiff who is found greater than 50% at fault for a car accident will be barred from recovering any compensation.
This change in the comparative fault law will have a chilling effect in cases where the fault is in issue, as is often the case.
Proving a “Serious Injury”
Under New York’s No Fault Insurance Law, in order to recover for pain and suffering in an automobile accident, the victim of a motor vehicle accident must prove that their injury meets a “serious injury” threshold, regardless of who is at fault for the accident. One of the “serious injury: categories has now been eliminated, making it harder for an injured party to recover compensation, even when the other party was 100% at fault. The category eliminated was the 90/180 day category, i.e., a person was unable to perform substantially all of their usual and customary daily activities for at least 90 out of the 180 days following the accident. The 90/180 day category would often come into play when someone had an injury such as torn ligament in the knee, or shoulder, or a herniation of the spine, which required prolonged physical therapy and/or surgery in the months following the accident. Now, if someone has such an injury, and after several months or even years, makes a full recovery, such injury may no longer qualify as a “serious injury”, barring the injured party from recovery.
Caps on Recovery
There has never been a cap on how much one could recover in a motor vehicle accident case. Up to now, one could recover the full amount of their damages, which would only be reduced by their percentage of fault, if any. Now however, there is a cap of $100,000 one can recover for pain and suffering in certain incidents. While the cap will only be applied in a narrow set of circumstances (e.g. the claimant was driving without insurance, driving while impaired at the time and convicted of such, or operating the vehicle in commission of a felony or immediate flight thereof), it sets a dangerous precedent for future caps on recovery.
Who Benefits?
Everyday New Yorkers who are injured in a car accident, will find it harder to receive compensation for their injuries. Why then were these and other changes made to the laws? One answer may be found in the fact that Uber alone reportedly spent more than $10 million dollars lobbying for these changes during the past legislative session. In fact, many of Governor Hochul’s proposed changes were written by Uber’s lobbying arm. Unfortunately, the Governor and State Legislature have chosen to protect corporate profits, rather than the people of the State of New York they were elected to represent.