Negligence in Personal Injury Cases


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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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 free of hazards, 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.

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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.


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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.

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.