Negligence in Personal Injury Cases

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.

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