Personal injury law covers you in case of injury caused by another person or entity, whether physical, emotional, or other. Some of the actions or omissions which cause such injuries may or may not also be considered criminal acts subject to criminal prosecution. The damage caused may be done intentionally, as a result of negligence, or in cases where another is strictly legally liable for what occurred. You can better make this determination under the guidance of a New York City personal injury attorney at our office.
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Personal Injury Law
Grounds for Personal Injury Claims
Negligent acts would be those in which someone fails to give care or attention in such a way that could be reasonably expected or is specifically required by law. Examples would include failing to properly test products for dangers before sale, medical malpractice, failing to keep premises safe, or failure to keep dangerous animals under control. Examples of injurious acts not based on negligence would be things such as police brutality or malicious prosecution. These are criminal actions, but can still in some cases constitute civil action.
Types of Negligence
According to common law, the term “negligence” refers to any situation where an individual fails to exercise ordinary care. In other words, a person acts (or fails to act) negligently when he/she does not exercise the same amount of care that a typical, prudent person would exercise in the same situation. Most personal injury cases involve some form of negligence. For instance, a car accident claim might involve driver negligence, such as texting while driving or excessive speed.
A hospital could act negligently by failing to change a patient’s bandages, resulting in an infection. There are five forms of negligence: gross, comparative, contributory, mixed contributory & comparative, and vicarious. If you suffered an avoidable injury, a New York City negligence lawyer from Hecht Kleeger & Damashek, P.C., can help you file a successful lawsuit.
Gross Negligence
Gross negligence describes the actions of a person who showed little or no concern for the safety of others. Gross negligence is different than a simple, careless action. While a driver might act carelessly by taking his/her eyes of the road to adjust the radio, another driver might commit an act of gross negligence by driving recklessly. While the term “carelessness” could imply a subconscious action, gross negligence involves a blatant and conscious disregard for the life of another person.
Additionally, an act might be considered grossly negligent if it is resulted in the foreseeable danger or injury of another person. Compared to typical negligence, gross negligence is extreme and does not align with the actions of a normal, cautious person. In New York law, gross negligence is more than a heightened form of simple negligence; it is an entirely different act that implies some form of intentional misconduct.
Comparative Negligence
Comparative negligence occurs when the injured party (the plaintiff) is responsible for a portion of his/her injuries; however, comparative negligence only applies when the victim is marginally responsible for his her suffering. In this situation, the plaintiff may not be able to collect full compensation for medical bills, missed wages, and other damages.
For example: a driver could run a stop sign and crash into another vehicle, injuring the other driver. However, the other driver is could be comparatively negligent if he/she failed to wear a seat belt. In this situation, the injured driver is partially responsible for the damages because he/she did not take reasonable care to wear a safety restraint. Similarly, a pedestrian would be somewhat responsible for his/her injuries if he/she failed to use a crosswalk.
Vicarious Liability
The term “vicarious liability” applies to circumstances where the defendant is held responsible for the actions of another person or an animal. Dog bite lawsuits are founded on vicarious liability. If a dog owner neglects to warn guests that his/her pet is dangerous, the owner will be held vicariously liable for any injuries caused by the dog.
Vicarious liability can also apply to injuries caused by children or minors, where the parent or guardian of the child is considered responsible for the child’s actions. In some cases, young children are considered incapable of committing negligence.
Employer negligence claims can involve vicarious liability as well. For example, employers are responsible to train their employees; if an employer neglects to provide adequate training, a new employee could make a mistake and cause an accident or injury. Although the employer did not actually commit the act of negligence, he/she may be somewhat responsible for the employee’s actions. This is especially likely when the employer oversees a dangerous work environment, such as a construction site.
Many personal injury claims and lawsuits are founded on three concepts: negligence, duty of care, and breach of duty. Generally speaking, an individual commits negligence when he/she fails to act in with due regard for the health and safety of others. For instance, a driver might be considered negligent for talking on the phone or texting behind the wheel. In order to file a successful negligence lawsuit, you must be able to demonstrate that the defendant committed an act of negligence. Negligence can also refer to a person who fails to act, resulting in an injury or death.
Negligence & “Duty of Care”
Duty of care does not exclusively refer to medical malpractice claims. According to common law, anyone can owe duty of care while executing an act that might place another person in danger. In other words, duty of care is a circumstantial, legal obligation held by a person whose actions could cause foreseeable harm to someone else. In a negligence case, the plaintiff must demonstrate a close connection between his/her injury or illness and the actions of the defendant. Further, the plaintiff must show that the defendant’s actions placed the plaintiff in foreseeable danger.
What Is Duty of Care in Negligence Cases?
Duty of care means you must behave and make decisions that involve taking reasonable care to ensure someone else does not suffer injury or illness due to your conduct. For instance, all drivers owe other motorists and passengers on the roadways a duty of care and must uphold this duty by adhering to state and federal traffic laws and driving their vehicles safely.
In a personal injury claim, your attorney will be responsible for proving that the person accused of causing your injuries owed you a duty of care. Once we have established the defendant owed you a duty of care, the next step will be to prove that there was a breach of this obligation.
What Does Breach of Duty Mean?
A breach in the duty of care refers to a defendant’s failure to act as another reasonable person would have if they were in the same situation. As you can imagine, what one person may consider reasonable, another may not. Since this is subjective, proving a breach of the duty of care can be challenging without solid evidence to support your case.
Examples of Breach of Duty in Personal Injury Cases
Here are a few examples of a breach in the duty of care in various types of personal injury accidents and claims:
- A contractor fails to provide construction workers with the materials and equipment needed to perform their jobs safely
- A driver gets behind the wheel under the influence of drugs or alcohol and causes a collision
- A driver is texting while driving and strikes a pedestrian crossing a crosswalk
- A driver is rushing to get home from work one day and cuts off a bicyclist who crashed into the vehicle and suffers critical injuries
In many personal injury claims, one of the only ways an injury victim can recover the compensation they are entitled to is by proving that the defendant breached their duty of care. Only if the defendant failed to uphold this obligation can they be compelled to cover your damages.
How Does Breach of Duty Factor into Negligence?
To determine if a breach of duty exists, the courts will decide whether the reasonable person standard has been met. If a reasonable person would not have made the same actions as the defendant did in your case, this may be considered a breach of the duty of care.
Only when a defendant breaches their duty of care are their actions considered negligence. Multiple factors may be considered when determining whether an individual’s conduct may be considered negligent. Such factors could include the following:
- Whether the defendant could have foreseen potential harm
- How severe the victim’s injuries or damages could have been
- The relationship of cause and effect in your case
- The potential costs of the defendant making a different decision
Personal Injury Lawsuits & “Breach of Duty”
The term “breach of duty” is a common phrase in personal injury law and refers to an individual who fails to provide duty of care. If the court determines that the defendant owed duty of care, the plaintiff must be able to show that the defendant breached his/her duty. Like any other negligence case, the defendant breaches duty of care when he/she acts unreasonably. If the defendant exercised the same amount of caution that a rational person would, the court may not find him/her liable for the defendant’s injury.
Causation & Breach of Duty in a Negligence Lawsuit
In order to prove negligence, you must be able to demonstrate that the defendant caused or contributed to your accident and injury. If you are unable to establish causation, you may not be able to collect financial compensation for your damages. Once the plaintiff demonstrates that the defendant acted negligently, he/she must draw a connection between the defendant’s negligence and the injury.
Negligence alone is not enough to establish a successful personal injury case. If you would have suffered an injury regardless of the plaintiff’s actions, you may not have a realistic case for negligence or breach of duty. This element is often called “but-for” causation. In other words: But-for the actions of the defendant, plaintiff would not have suffered the injury. Without “but-for” causation, it may be difficult to establish breach of duty.
New York City Negligence Lawyer
If you suffered an avoidable personal injury, you may be entitled to financial compensation through a negligence lawsuit. Our firm has years of experience in the legal field. Let us use our understanding of personal injury law to help you recover the financial compensation that you deserve.
To see what Hecht Kleeger & Damashek, P.C., can do for your case, contact us today. With the right New York City negligence attorney on your side, you can have peace of mind that a skilled legal professional will help you through every step of the legal process.
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09/09/2021
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08/11/2021
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06/22/2021
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04/01/2021
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03/01/2021
Hetch,Kleeger & Damashek, P.C., is the law office I highly recommend. My attorney Judd Kleeger, accomplished to represent me, support my needs & secure my future after suffering a traumatic accident. Other lawyers couldn’t guarantee this to me but Judd…
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02/25/2021
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02/23/2021
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02/23/2021
I have referred numerous cases to Judd Kleeger and the team at HKD. I feel very confident when i refer a client that they will be treated with the highest regard. Each of my referrals has had very positive experiences…
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01/29/2021
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01/19/2021
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01/18/2021
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01/15/2021
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01/15/2021
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01/14/2021
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01/14/2021
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01/06/2021
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12/29/2020
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12/28/2020
Mr. Ross Raggio and his team at Hecht, Kleeger & Damashek, P.C., provided excellent legal services. His team and him were absolutely great, always returning calls or emails when we had questions about the case. Always very cordial, caring and…
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12/11/2020
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12/10/2020
Very professional and very responsive. I would highly recommend this firm to anyone in need of an attorney. The attorney Ross Raggio, who was personally assigned to my case consistently followed through and was able to bring the case to…
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12/08/2020
Mr. Ross Raggio went above and beyond to settle my case during the height of the pandemic, a time when my options appeared limited and the likelihood of a satisfactory resolution seemed slim. He was responsive and professional, and was…
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12/07/2020
I was a sole practitioner specializing in personal injury law in NYC for more than 36 years. When I decided to retire, I had to make several critical decisions before terminating my practice. To whom should I refer my clients…
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12/07/2020
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12/04/2020
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12/03/2020
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12/03/2020
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12/02/2020
I have had the pleasure to work alongside Ross Raggio on several matters. He is an extremely talented attorney with an exceptional understanding of the law. I would recommend him and HK&D to anyone looking for a personal injury attorney.
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12/02/2020
I came to know the firm through my relationship with one of the partners, Jordan Hecht. Jordan and I became close friends in law school. I have since referred several cases to Jordan and his firm ranging from a mesothelioma…
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12/02/2020
From the moment that I contacted this Law firm and got assigned Mr. Ross. They have been nothing but helpful, Especially Mr. Ross. In the time that Mr. Ross took my case, it took him 3 months to a get…
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01/21/2020
I cannot speak highly enough about this firm. The situation that necessitated my need for legal representation was very stressful on me and my family and the lawyers here were with me every step of the way. I could always…
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07/05/2015
I retained Hecht, Kleeger & Damashek for a serious personal injury case. They were very professional and managed to obtain a settlement for me that far exceeded my expectations. I would strongly recommend this firm for anyone’s legal needs.
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07/05/2015
After meeting a half dozen lawyers at different firms, I decided to go to Hecht, Kleeger and Damashek. As soon as I met Jon Damashek, I knew I had to look no further. Mr. Damashek made me feel at ease…
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07/05/2015
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07/05/2015
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07/05/2015
I have worked with countless attorneys over the years and Jon Damashek stands out among them. I have seen first hand him advocate for his clients vigorously. He fights for the rights of the seriously injured, does not back down…
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07/05/2015
I had the opportunity to work with Jon Damashek and had an amazing experience. I have known Jon for many years and always felt very comfortable relying on his expertise and knowledge of the law and more importantly his ability…
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07/05/2015
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06/05/2019
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05/01/2015
“I had the opportunity to work with Jon Damashek and had an amazing experience. I have known Jon for many years and always felt very comfortable relying on his expertise, knowledge of the law, and more importantly – his ability…
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05/01/2015
“I cannot recommend Jon Damashek highly enough. I attribute the favorable outcome of my case to his consummate and tireless dedication and tenacity. Just as important, he was truly there with me every step of the way. He was very…
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