Friday, November 5, 2010

New York Civil Law's Collection Provision

In civil law the idea of reckless disregard is often the foundation for many civil cases. A party that acts in a way that endangers the general health and well being of others is a principle for many of our nation's lawsuits.

To win a civil case, a defendant must prove that by a preponderance of the evidence, the plaintiff is at fault. New York has a special law that can come into play for civil cases.

First of all we must look at the idea of contributory and comparative negligence. Lets say you own a small car and you go for a drive to your favorite recreation spot. Suddenly out of nowhere your car hits a pothole and destroys one of your tires. You pull over to the side of the road and while changing your tire you notice a large chunk of gold on the other side of the road.

Thinking its your lucky day you begin to walk towards it only to be hit by a speeding truck that shatters your pelvis and tears a couple of your knee ligaments.

In some states if you sued the truck driver you would lose because the state uses strict contributory negligence guidelines. Basically since you walked in front of the truck you lose your case because you personally contributed to the accident. Others say that if you were more than 50% responsible you will lose your case.

However some states use contributory negligence which means that while you walked in front of the truck, the fact that it was speeding contributed to your injuries and will award damages based on the facts of the case.

Suppose this happened in a school zone and the truck was estimated to be traveling at 50 mph. It is reasonable that while you walked in front, the truck's speed and subsequent inability to avoid the collision make the driver 75% at fault.

Percentages and how they are decided are for the most part much more difficult to explain so I chose an arbitrary number.

Now lets take that concept and apply it to a case with multiple defendants.

Lets say the driver tried to stop but his brakes failed. Let's say you decide to name the brake manufacturer in your case.

You also discover the car manufacturer knew of brake failures but failed to remedy the situation.

So this presents a case of 3 parties you're suing. A jury can then decide comparatively how much each company must pay. In this scenario, its likely the driver and brake companies would be the most liable and the auto manufacturer would be the least liable.

Now lets also suppose that the brake manufacturer went out of business but they are found to be 50% liable for your injury. In most states you have no legal recourse for their share of the amount simply because of the fact that they don't exist.

Now remember I included that the car manufacturer knew of the brake manufacturer's problems and failed to remedy them.

Under New York law they can be held responsible for the brake company's share because they acted with "reckless disregard" towards the situation.

They would be forced to pay the brake company's share because the company is labeled as a non-settling defendant because there is no way to recoup from them.

Isn't law fun?

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