This is the second in a series that is looking at the different types of defense tactics a property owner and their insurance defense team may use while battling a premises liability case. In the first post, we discussed the assumed risk defense. Now, we will examine contributory negligence.

What is comparative negligence?

There are two types of comparative fault: pure and modified. New York is a pure comparative fault state, which means that even if a plaintiff was partly liable for the injury, they can still receive some compensation. Whatever percent the plaintiff is found liable for the injury is the amount that will be deducted from any damages award.

For example, if an individual slip and fell on your property and claim that you were liable, but in court the plaintiff is found 80 percent liable, you will only need to pay the remaining 20 percent. In this case, a court will find both parties negligent, assigning a degree of fault to each.

Using comparative negligence as a defense

If you are facing a plaintiff in a premises liability case, using comparative negligence as a defense and verifying that the other party was more negligent may prove beneficial. This defense works best when you cannot prove that the injury was completely the plaintiffs fault or that they did not assume the risk of the injury.