Fault First: New York's Shift to Modified Comparative Negligence and What It Changes at Trial

Kenney Shelton Liptak Nowak LLP | Civil Litigation Update

Karl E. Daniel | Partner and Patrick S. Kenney, Esq. | Managing Partner

New York has applied a rule of pure comparative negligence since 1975, when the Court of Appeals decided Arbegast v. Board of Education and the legislature codified apportionment in CPLR § 1411. Under that law, a plaintiff's recovery is reduced by his or her percentage of fault, but a plaintiff is not barred from recovery, no matter how responsible he or she was for the accident. A driver who caused 90% of a collision could still recover 10% of proven damages from the other driver.

That framework survives the 2026 tort reforms, but with a significant exception carved out for motor vehicle personal injury cases. New CPLR § 1411(b), enacted as part of Part EE of the FY2027 budget, bars a plaintiff in an Article 51 automobile action from recovering non-economic damages if the plaintiff's culpable conduct is found to be greater than the culpable conduct of the defendant, or greater than the combined culpable conduct of all defendants. The statutory language is precise: the bar operates when the claimant's fault exceeds that of the opposing party or parties in the aggregate.

The shift aligns New York, at least in the motor vehicle context, with the majority of states that apply some form of modified comparative negligence. It does not affect general negligence, premises liability, labor law, or any other area of tort law outside of automobile no-fault matters.

How the Bar Works

The mechanics of the new provision are important for both sides of a motor vehicle case. The threshold is a greater-than-50% fault finding, not a 50% finding. A plaintiff found exactly 50% at fault is not barred. A plaintiff found 51% at fault or any percentage greater than the combined fault of all defendants is barred.

The bar applies specifically to non-economic damages, meaning pain and suffering and loss of consortium. It does not bar recovery of economic losses. A plaintiff more than 50% at fault may still pursue lost wages, medical expenses beyond no-fault limits, and other pecuniary damages, even if the non-economic claim is entirely foreclosed.

The reform also does not eliminate joint and several liability in automobile cases across the board. What it does is repeal CPLR § 1602(6), the motor vehicle exception to Article 16 of the CPLR. Article 16 limits several liability for non-economic damages to a defendant's proportionate share of fault where that defendant is 50% or less at fault. Previously, motor vehicle defendants were excluded from that protection by § 1602(6). With its repeal, a low-fault motor vehicle defendant (one found 50% or less responsible) can now invoke Article 16's several-liability limitation on non-economic damages, subject to the statute's other exceptions.

The Sequencing Requirement

The modified comparative negligence provision operates along with a new trial sequencing requirement in amended Insurance Law § 5104(a). Under the new reforms, the trier of fact in an Article 51 action must determine fault first, serious injury second, and damages third. The sequencing change is not merely procedural. It has substantive consequences for how cases are tried and how the comparative negligence bar interacts with threshold determinations.

Under the prior laws, a plaintiff who survived a threshold motion could present liability and damages evidence together, with fault apportionment resolved after the jury had been exposed to the full damages picture. The new sequence requires the jury to resolve the liability question, including the plaintiff's percentage of fault, before serious injury and damages are addressed. In cases where the plaintiff's fault is a live and significant issue, that sequence alters the psychological and evidentiary dynamic of the trial.

A jury that determines, in a fault-first phase, that the plaintiff was 60% responsible for the accident will then be asked to assess whether the plaintiff sustained a serious injury and the value of the plaintiff's damages, knowing that its fault finding has already foreclosed non-economic recovery. That sequence changes the nature of deliberation in a way that, as a practical matter, favors defendants in cases involving substantial plaintiff fault.

Consequences for Case Evaluation and Settlement

The new comparative negligence bar changes the settlement calculus in cases where plaintiff fault is a substantial issue. Under the prior law, a plaintiff who was 60% at fault could still recover 40% of their non-economic damages. Defense counsel had limited leverage in arguing pure plaintiff fault because the recovery reduction, while meaningful, did not eliminate the plaintiff's non-economic claim.

Under the new law, the same plaintiff recovers nothing on non-economic damages if the fact-finder agrees on a greater-than-50% fault allocation. That is a categorical outcome, not a proportional one. Defense teams should be incorporating that exposure shift into case valuations now, both in evaluating reserve positions and in structuring settlement discussions.

The change is particularly significant in cases involving: 

• Rear-end collisions with a comparative fault component

• Intersection accidents where the signal timing is disputed

• Cases involving plaintiff conduct, such as failure to signal, distracted driving, or speeding

In a case where the evidence supports a serious argument that the plaintiff was more responsible for the accident than the defendants combined, the new law creates a genuine possibility of complete non-economic damage foreclosure, which should be reflected in strategy from the earliest stages of litigation.

A Note on Scope

Defense practitioners should be careful not to overread the reform. The modified comparative negligence bar applies only in Article 51 motor vehicle personal injury actions. Automobile cases involving only economic loss, wrongful death claims, and all non-automobile tort litigation continue to operate under the pure comparative negligence rule of CPLR § 1411(a). 

The bad-actor damages cap under Insurance Law § 5104(d) (the $100,000 limit for claimants engaged in certain criminal conduct) is a separate provision with its own criteria, and it should not be conflated with the general comparative fault bar.

The interaction between the new comparative negligence rule and Article 16's several-liability limits in multi-defendant automobile cases will require careful analysis as litigation develops under the new framework. Cases involving multiple at-fault parties, like rideshare vehicles, commercial vehicles, and multiple motorists, can create layered apportionment questions that will take time to work through in the courts.

Kenney Shelton Liptak Nowak LLP represents insurers, municipalities, and businesses in automobile liability and insurance defense matters throughout New York. For questions about how the 2026 comparative negligence changes affect pending or future matters, contact our civil litigation team.