New York Personal Injury Laws: Understanding Negligence
Content
NEW YORK PERSONAL INJURY LAWS:
UNDERSTANDING NEGLIGENCE
An Overview of New York’s Negligence Law
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
1
When someone is involved in a motor vehicle collision or injured in a fall at the supermarket we refer to the occurrence as an “accident”. While true accidents do occur, most “accidents” are not really accidents but are the result of someone’s negligence. When we say that a victim of an “accident” is entitled to compensation we base that on the fact that another party was at fault, or was negligent, in the accident. If you have been injured, or have lost a loved one, as a result of an “accident” in New York you will need to prove negligence on the part of at least one other party before you can demand compensation for your injuries. Only an experienced New York personal injury attorney, like the attorneys of Simon & Gilman, LLP can evaluate the unique facts and circumstances of your case to determine if another party was, indeed, negligent; however, a basic understanding of what the law means by “negligent” may be beneficial for victim and survivors.
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
2
WHAT IS A TORT?
Torts is the area of the law that addresses injuries to people or property. Within the broad category of torts are various types of cases such as personal injury accidents, product liability, medical malpractice, and premises liability. For a party to be found liable for damages in a tort case there are three possible standards, or mental states, that are used – intentional, strict liability, and negligence. An example of an intentional tort is assault. While assault can be charged as a criminal offense it can also be the basis for a civil lawsuit. If someone punches you on purpose, that is clearly an intentional act, making it an intentional tort. Strict liability means that the intentions, or state of mind, of the wrongdoer are irrelevant. In a strict liability tort case the law only looks at the outcome, not at the actions leading up to the outcome. A common example of a strict liability tort is a dog bite case. In many states, an owner is liable for injuries caused when a dog bites a victim regardless o f any action on the owner’s part to prevent injuries. New York’s dog bite law mixes strict liability with negligence. An owner is strictly liable for medical and veterinary costs but a victim must prove negligence to collect additional compensation. The third standard, and by far the most widely used, is negligence. Most tort cases used negligence as the required state of mind of the wrongdoer. Common “accident” cases such as car accidents or slip-and-fall cases require the victims to prove that someone was negligent in order to collect compensation for their injuries.
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
3
WHAT IS NEGLIGENCE?
Negligence is a legal concept that has been analyzed, debated, and argued over by lawyers, judges and scholars for centuries. Put in terms that the average person can understand, however, negligence requires four elements to be met: Duty of care – as a victim, you must prove that the defendant owed you a duty of care. Essentially, this means that you must show that the law believes the defendantwas required to do everything reasonably possible to protect you from harm. In some situations, this is an easy element to prove while in others it is not. An example where a duty of care is present is when you operate a vehicle on a public roadway. Courts have long held that the other motorists on the roadway owe you a duty of care. Likewise, a shop owner whose shop is open to the public owes anyone who enters a duty of care. Breach of the duty of care – next you need to prove that the defendant breached that duty of care. The duty of care does not require the defendant to prevent all harm from befalling you, meaning that simply because you get hurt does not mean the defendant breached the duty of care. For example, a motorist who is operating a vehicle while under the influence of alcohol and swerves into your lane of traffic has clearly breached the duty of care owed to you. On the other hand, if a meteorite suddenly falls from the sky into the defendant’s lane of traffic and that causes him to swerve into your lane it is far from clear that the duty of care has been breached. Causation – third, you must prove that the breach of the duty of care actually caused your injuries. In most personal injury accident cases this is fairly easy to establish; however, there are many situations where it is not so clear. For example, imagine that your father underwent a surgical operation and the surgeon breached her duty of care by leaving a foreign object inside the incision (a remarkably common occurrence). Your father dies one week later due to complications from the surgery; however, there is no proof that the foreign object caused, or contributed to, the complications that resulted in the death. In this case, it may be difficult to prove the causation element required for negligence.
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
4
Damages –finally, you must prove “damages” which is a legal t erm that essentially refers to injuries. In a typical car accident case, for example, you would need to show that you suffered physical injuries as a result of the defendant’s actions or failure to act.
COMPARATIVE VS. CONTRIBUTORY NEGLIGENCE
Within the realm of negligence there are two basic approaches that states take – comparative and contributory negligence. Only a handful of states (five as of 2014) use contributory negligence because the results are often viewed as unfair or unjust. When contributory negligence is used as a defense, the victim cannot recover if the victim “contributed” to the accident in any way. In other words, if the victim was five percent at fault and the defendant was 95 percent at fault the victim recovers nothing for his or her injuries.
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
5
Comparative negligence, on the other hand, “compares” the fault of the victim to that of the defendant. When comparative negligence is used the victim can recover even if he or she contributed to some degree to the accident. Comparative negligence allows the victim to recover damages to the extent that the defendant was responsible. For example, if you were involved in a car accident and you suffered $10,000 worth of damages but you were also found to be 10 percent at fault in the accident you would only recover 90 percent of your damages, or $9,000, from the defendant. If pure comparative negligence is used a victim can recover even if he or she was more at fault than the other party involved in the accident. For instance, if you were found to be 55 percent at fault and the other party 45 percent at fault, you could be required to pay the other party 55 percent of the damages and the other party could be required to pay you 45 percent of the damages. Many states, however, use a modified comparative negligence standard that requires a victim to be 50 percent or less at fault to be entitled to compensation.
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
6
NEW YORK’S NEGLIGENCE LAW
New York is one of 13 states that uses a pure comparative negligence standard. In New York, either party must agree on the percentage of negligence assigned to each party or a court will decide. Each party is then entitled to compensation commensurate with the percentage of negligence assigned by agreement or by the court. New York also recognizes “gross negligence”. Gross negligence can be underst ood as a level of culpability that is higher than simple negligence but not as high as intentional wrongdoing. To prove gross negligence you must show that the defendant had a “conscious or reckless disregard for others’ safety”. If gross negligence is proven, the victim may be entitled to punitive damages as well as compensatory damages. Negligence is an essential, though often complicated and confusing, element of any New York personal injury lawsuit. If you believe that another party caused, or contributed to, your injuries or the loss of a loved one, contact Simon & Gilman, LLP, experienced New York personal injury attorneys for 35 years immediately to have your case evaluated.
REFERENCES
Laws.com, Comparative Negligence FindLaw, New York Negligence Laws
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
7
About Simon & Gilman, LLP
Simon & Gilman is the premier law firm in the Queens and New York Metro area. They have expertise in many areas of practice and can help you resolve legal issues that you are confronted with. ACCIDENTS We handle all types of injury cases, including automobile accidents, sidewalk and stairway, elevator, escalator, slip, trip and fall cases, bus, train and plane accidents, sporting activity accidents, snow & ice, defective products, medical malpractice, nursing home, hospital, school accidents, work and construction related accidents, and accidents involving New York City, New York State, and the U. S. Government. SOCIAL SECURITY DISABILITY Representing individuals who have applied for, been denied and refused disability benefits. We pursue all levels of appeal through the Hearing level, Appeals Council and, if necessary, to the Federal Courts CRIMINAL DEFENSE Representing individuals who have been arrested or about to be arrested, from violations to misdemeanors to felony charges, from arraignment through trial, if necessary including domestic violence, assault, shoplifting, driving while intoxicated (DWI), crimes against the person and/or property. WILLS/TRUSTS/ESTATES Representing you and your loved ones in the preparation of Wills, Living Wills, Trusts, Health Care Proxies, Powers of Attorney, and estate planning. Probate and Administration of estates; contested will proceedings and all phases of Surrogate’s Court actions. Arrangements can be made to come to your home or hospital if necessary to prepare any such documents. FAMILY LAW Though often emotional, your case is handled with sensitivity and compassion. Includes such matters as: annulment, divorce, separation, custody, visitation, support, adoption, pre-nuptial/post-nuptial agreements, paternity, Orders of Protection, name changes, Family Court & Supreme Court matters. REAL ESTATE Representing buyers and sellers in both residential and commercial matters, condominiums and cooperatives. Landlord/tenant matters involving non-payment, holdovers and unlawful occupancies.
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
8
UNDERSTANDING NEGLIGENCE
An Overview of New York’s Negligence Law
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
1
When someone is involved in a motor vehicle collision or injured in a fall at the supermarket we refer to the occurrence as an “accident”. While true accidents do occur, most “accidents” are not really accidents but are the result of someone’s negligence. When we say that a victim of an “accident” is entitled to compensation we base that on the fact that another party was at fault, or was negligent, in the accident. If you have been injured, or have lost a loved one, as a result of an “accident” in New York you will need to prove negligence on the part of at least one other party before you can demand compensation for your injuries. Only an experienced New York personal injury attorney, like the attorneys of Simon & Gilman, LLP can evaluate the unique facts and circumstances of your case to determine if another party was, indeed, negligent; however, a basic understanding of what the law means by “negligent” may be beneficial for victim and survivors.
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
2
WHAT IS A TORT?
Torts is the area of the law that addresses injuries to people or property. Within the broad category of torts are various types of cases such as personal injury accidents, product liability, medical malpractice, and premises liability. For a party to be found liable for damages in a tort case there are three possible standards, or mental states, that are used – intentional, strict liability, and negligence. An example of an intentional tort is assault. While assault can be charged as a criminal offense it can also be the basis for a civil lawsuit. If someone punches you on purpose, that is clearly an intentional act, making it an intentional tort. Strict liability means that the intentions, or state of mind, of the wrongdoer are irrelevant. In a strict liability tort case the law only looks at the outcome, not at the actions leading up to the outcome. A common example of a strict liability tort is a dog bite case. In many states, an owner is liable for injuries caused when a dog bites a victim regardless o f any action on the owner’s part to prevent injuries. New York’s dog bite law mixes strict liability with negligence. An owner is strictly liable for medical and veterinary costs but a victim must prove negligence to collect additional compensation. The third standard, and by far the most widely used, is negligence. Most tort cases used negligence as the required state of mind of the wrongdoer. Common “accident” cases such as car accidents or slip-and-fall cases require the victims to prove that someone was negligent in order to collect compensation for their injuries.
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
3
WHAT IS NEGLIGENCE?
Negligence is a legal concept that has been analyzed, debated, and argued over by lawyers, judges and scholars for centuries. Put in terms that the average person can understand, however, negligence requires four elements to be met: Duty of care – as a victim, you must prove that the defendant owed you a duty of care. Essentially, this means that you must show that the law believes the defendantwas required to do everything reasonably possible to protect you from harm. In some situations, this is an easy element to prove while in others it is not. An example where a duty of care is present is when you operate a vehicle on a public roadway. Courts have long held that the other motorists on the roadway owe you a duty of care. Likewise, a shop owner whose shop is open to the public owes anyone who enters a duty of care. Breach of the duty of care – next you need to prove that the defendant breached that duty of care. The duty of care does not require the defendant to prevent all harm from befalling you, meaning that simply because you get hurt does not mean the defendant breached the duty of care. For example, a motorist who is operating a vehicle while under the influence of alcohol and swerves into your lane of traffic has clearly breached the duty of care owed to you. On the other hand, if a meteorite suddenly falls from the sky into the defendant’s lane of traffic and that causes him to swerve into your lane it is far from clear that the duty of care has been breached. Causation – third, you must prove that the breach of the duty of care actually caused your injuries. In most personal injury accident cases this is fairly easy to establish; however, there are many situations where it is not so clear. For example, imagine that your father underwent a surgical operation and the surgeon breached her duty of care by leaving a foreign object inside the incision (a remarkably common occurrence). Your father dies one week later due to complications from the surgery; however, there is no proof that the foreign object caused, or contributed to, the complications that resulted in the death. In this case, it may be difficult to prove the causation element required for negligence.
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
4
Damages –finally, you must prove “damages” which is a legal t erm that essentially refers to injuries. In a typical car accident case, for example, you would need to show that you suffered physical injuries as a result of the defendant’s actions or failure to act.
COMPARATIVE VS. CONTRIBUTORY NEGLIGENCE
Within the realm of negligence there are two basic approaches that states take – comparative and contributory negligence. Only a handful of states (five as of 2014) use contributory negligence because the results are often viewed as unfair or unjust. When contributory negligence is used as a defense, the victim cannot recover if the victim “contributed” to the accident in any way. In other words, if the victim was five percent at fault and the defendant was 95 percent at fault the victim recovers nothing for his or her injuries.
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
5
Comparative negligence, on the other hand, “compares” the fault of the victim to that of the defendant. When comparative negligence is used the victim can recover even if he or she contributed to some degree to the accident. Comparative negligence allows the victim to recover damages to the extent that the defendant was responsible. For example, if you were involved in a car accident and you suffered $10,000 worth of damages but you were also found to be 10 percent at fault in the accident you would only recover 90 percent of your damages, or $9,000, from the defendant. If pure comparative negligence is used a victim can recover even if he or she was more at fault than the other party involved in the accident. For instance, if you were found to be 55 percent at fault and the other party 45 percent at fault, you could be required to pay the other party 55 percent of the damages and the other party could be required to pay you 45 percent of the damages. Many states, however, use a modified comparative negligence standard that requires a victim to be 50 percent or less at fault to be entitled to compensation.
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
6
NEW YORK’S NEGLIGENCE LAW
New York is one of 13 states that uses a pure comparative negligence standard. In New York, either party must agree on the percentage of negligence assigned to each party or a court will decide. Each party is then entitled to compensation commensurate with the percentage of negligence assigned by agreement or by the court. New York also recognizes “gross negligence”. Gross negligence can be underst ood as a level of culpability that is higher than simple negligence but not as high as intentional wrongdoing. To prove gross negligence you must show that the defendant had a “conscious or reckless disregard for others’ safety”. If gross negligence is proven, the victim may be entitled to punitive damages as well as compensatory damages. Negligence is an essential, though often complicated and confusing, element of any New York personal injury lawsuit. If you believe that another party caused, or contributed to, your injuries or the loss of a loved one, contact Simon & Gilman, LLP, experienced New York personal injury attorneys for 35 years immediately to have your case evaluated.
REFERENCES
Laws.com, Comparative Negligence FindLaw, New York Negligence Laws
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
7
About Simon & Gilman, LLP
Simon & Gilman is the premier law firm in the Queens and New York Metro area. They have expertise in many areas of practice and can help you resolve legal issues that you are confronted with. ACCIDENTS We handle all types of injury cases, including automobile accidents, sidewalk and stairway, elevator, escalator, slip, trip and fall cases, bus, train and plane accidents, sporting activity accidents, snow & ice, defective products, medical malpractice, nursing home, hospital, school accidents, work and construction related accidents, and accidents involving New York City, New York State, and the U. S. Government. SOCIAL SECURITY DISABILITY Representing individuals who have applied for, been denied and refused disability benefits. We pursue all levels of appeal through the Hearing level, Appeals Council and, if necessary, to the Federal Courts CRIMINAL DEFENSE Representing individuals who have been arrested or about to be arrested, from violations to misdemeanors to felony charges, from arraignment through trial, if necessary including domestic violence, assault, shoplifting, driving while intoxicated (DWI), crimes against the person and/or property. WILLS/TRUSTS/ESTATES Representing you and your loved ones in the preparation of Wills, Living Wills, Trusts, Health Care Proxies, Powers of Attorney, and estate planning. Probate and Administration of estates; contested will proceedings and all phases of Surrogate’s Court actions. Arrangements can be made to come to your home or hospital if necessary to prepare any such documents. FAMILY LAW Though often emotional, your case is handled with sensitivity and compassion. Includes such matters as: annulment, divorce, separation, custody, visitation, support, adoption, pre-nuptial/post-nuptial agreements, paternity, Orders of Protection, name changes, Family Court & Supreme Court matters. REAL ESTATE Representing buyers and sellers in both residential and commercial matters, condominiums and cooperatives. Landlord/tenant matters involving non-payment, holdovers and unlawful occupancies.
New York Personal Injury Laws: Understanding Negligence
www.simgil.com
8
