Practice Areas

Negligence FAQ

What has to be shown in order to prove negligence?
What is the duty to use care?
What is reasonable care?
Are different people held to different standards of care?
What is causation?
What if I am partially at fault for my own injuries?
Is it considered negligence if someone violates a law?
What are some common defenses to negligence?
What is the Statute of Limitations for negligence claims?
What is the Burden of Proof?

What has to be shown in order to prove negligence?

  • The defendant had a duty to use reasonable care towards you;
  • The defendant breached that duty by acting unreasonably;
  • It was foreseeable that by acting unreasonably, defendant would cause injury to you; and the defendant's actions or inactions caused your injury; and
  • The defendant's actions or inactions caused your injury.

Once we prove that the defendant was negligent, you have the right to be compensated for your damages.

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What is the duty to use care?

Generally, a person owes everyone else with whom he or she comes in contact a general "duty of care." Normally, you don't have to worry about this duty – it is the same in all instances: the duty to behave with the care that would be shown by a reasonable person. But there are several situations in which courts hold that people owe one another less than this regular duty. The most important of these situations are: 1) one generally has no duty to take affirmative action to help another; and 2) one generally has no duty to avoid causing unintended mental suffering to another.

A person generally cannot be liable in tort solely on the grounds that he or she has failed to act. This means that if you see that another person is in danger, and you fail to render assistance (even though you could do so easily and safely), you are not liable for refusing to assist.

Example: Sam, passing by, sees Mike drowning in a pond. Sam could easily pull Mike to safety without risk to Sam, but instead, Sam walks on by. Sam is not liable to Mike for any harm sustained by Mike.

There are a number of commonly-recognized exceptions to the "no duty to act" rule. In the above example, if the danger or injury to Mike is due to Sam's own conduct, or to an instrument under Sam's control, Sam has the duty of assistance. Similarly, in the event Sam started to give Mike assistance, once Sam voluntarily begins to render assistance to Mike (even if he was under no legal obligation to do so), Sam must now proceed with reasonable care.

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What is reasonable care?

The key to determining whether someone is negligent is to define what constitutes "reasonable" care in any given set of circumstances. Since there is no clear definition of what is reasonable in any particular situation – what is reasonable to one person may not be reasonable to another.

Courts often decide whether someone has exercised reasonable care by asking what a person of average intelligence and judgment would have done under the same or similar circumstances. For example, a "reasonable" driver preparing to make a left hand turn across oncoming traffic would not do so without first checking to make sure that there was ample time to safely make the turn. It would be negligence if a driver failed to check to make sure there was time to make the turn, made the turn anyway, and caused an accident.

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Are different people held to different standards of care?

The level of reasonable care required varies, depending on whether you are an adult, child, or professional.

Reasonable person standard: An adult is guilty of negligence if he or she fails to act the way a person of ordinary intelligence and judgment would have acted in the same or similar circumstances.

Reasonable child standard: Only in a very narrow set of circumstances involving dangerous instrumentalities can a parent be held responsible for the negligence of a child. La Torre v. Genesee Management Inc., 90 N.Y.2d 576 (1997). In addition, children are not held to the same level of care as adults. A child's conduct is measured against what would be expected from a similar child of like age, intelligence, and experience under similar circumstances. Because a child does not have the same mental capacity or life experience as an adult, the courts recognize that in some instances a child should not be held responsible for otherwise "negligent" behavior. For this reason, children of very young ages generally cannot be held liable for negligence. The judge will decide a child's capacity for negligence. If the child is deemed capable of negligence, then the issue of whether or not the child actually was negligent will be decided by a jury.

One major exception to the rule is that a minor will generally be held to an adult standard of reasonableness if the child is engaging in "adult" activities. For the most part, a child will only be held to this standard in situations in which the child is operating a motorized vehicle.

Professional community standard: Professionals (lawyers, doctors, architects, engineers, psychiatrists, etc.) are held to a higher standard of care due to their specialized training and experience. Professionals and individuals who practice "skilled trades" (plumbers, carpenters, electricians, beauticians, etc.) may be found to be negligent if they do not exercise the same degree of skill and knowledge normally exercised by other qualified and competent members of their professions working in their communities.

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What is causation?

In order for a person who is negligent to be liable to you for damages suffered from an accident, it must be proven that the negligence actually caused your injury. The negligent person's action or inaction can be the sole cause or your injury or one of a number of causes.

Example: Suppose a truck is speeding too fast along the road when it suddenly approaches a car left abandoned in the middle of the road. To avoid a collision, the driver of the truck attempts to apply the brakes. A local mechanic recently repaired the brakes, but forgot to change the old, worn out brake pads. As a result, the brakes fail and the truck barrels into the parked car, which in turn collides with you as you try to cross the street in an area that is not a designated crosswalk. The resulting injury you received had many causes, including the trucker's negligent driving, the negligent repair of the truck's brakes, the car negligently left in the middle of the road, and your own failure to cross the street in a safe manner.

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What if I am partially at fault for my own injuries?

Comparative Negligence

In the above example, the judge or jury determines the degree of the each party's negligence and apportions to each party a portion of the total damages you suffered based on each party's percentage of fault for causing your injury. This process is called "comparative negligence," and is the method by which the damage amount is awarded in New York. In "pure" comparative negligence, the amount of damages awarded to the plaintiff will be reduced in direct proportion to the plaintiff's percentage of fault, no matter what the ratio. Under the pure comparative fault doctrine, the trier of fact first determines whether the plaintiff was partially responsible for the injury. It must then ascertain what percentage of the total negligence is attributable to the plaintiff as compared with the fault of all other persons whose conduct contributed to the injury. For instance, if you are 30 percent at fault for an accident, you could recover 70 percent of your damages. If you are 70 percent at fault for an accident, you could recover only 30 percent of your damages. All of the other parties alleged to be at fault would then be responsible for paying you 30% of your total damages, apportioned between them in proportion to the amount of fault assigned to each of them.

Joint and Several Liability

As a general rule, New York holds two or more defendants who are responsible for causing an injury jointly and severally liable. Klinger v. Dudley, 41 N.Y.2d 362 (1977). This means that in cases where multiple defendants are responsible for the plaintiff's injury, each defendant is held individually liable for the full amount of the percentage of the damages that are not caused by the plaintiff him or herself. For example, if defendants A and B are each responsible for 40% of plaintiff's damages, and plaintiff is 10% responsible, A and B are each still liable for the full 80% total apportioned to the defendants. This does not mean that the plaintiff can recover 80% from each of them, it merely means that the plaintiff can recover up to 80% total between the two defendants, whether it all comes from A, B, or a combination of the two. However, A and B have what is known as a right to contribution. N.Y. C.V.P. § 1401. This means that if the plaintiff recovers the full 80% from A, A can then sue B for B's share of the 80%, or in this case 40%. Ravo v. Rogatnick, 70 N.Y.2d 305 (1987).

The rules above are applied differently in New York depending on the type of damages involved. When the jury apportions fault in cases involving joint defendants they first divide the plaintiff's losses into economic (lost earnings and medical expenses) and non-economic (pain and suffering) losses. Then the jury gives a percentage of fault for the plaintiff's injuries to each of the defendants in these two categories. Joint and several liability as described above applies for economic losses. N.Y. C.V.P. § 1601. For pain and suffering damages, however, the jury must apportion liability among all responsible parties, even those that were not sued.  However, for a defendant to be jointly and severally liable for the full amount of pain and suffering losses in a case with more than one defendant, the defendant must be at least 51% responsible. If the defendant is less than 50% responsible then that defendant is only liable for the amount of pain and suffering damages apportioned to him. N.Y. C.V.P. § 1601.

Example: 1.The jury apportions the damages to three defendants, A, B, and C. The total damages are $90,000; $60,000 for economic losses and $30,000 for pain and suffering. Each defendant is apportioned 33.3% (one-third) of the fault for the economic losses. A is apportioned 10% and B is apportioned 90% of the fault for pain and suffering, with C apportioned 0%. The result is that A, B and C are all liable for the full amount of economic losses. If the plaintiff recovers the full $60,000 from A, A can then sue B and C to get the $40,000 (or two-thirds) the jury apportioned to B and C. For the pain and suffering losses, A is only responsible for $3,000 (10%), since he was not more than 50% responsible for the pain and suffering damages. But B is responsible for the full $30,000 of pain and suffering damages because B was apportioned more than 50% of the pain and suffering damages. The courts in New York have not established a clear rule on whether or not, when the plaintiff is apportioned part of the liability for the injury, that should be included in the total liability percentage for the purpose of determining if a given defendant is considered to be more than 50% liable for pain and suffering. Didner v Keene Corp., 188 App.Div.2d 15 (1st Dept. 1993).

Example: 2.The jury apportions the damages between the plaintiff and defendants A and B. The total damages are $90,000; $60,000 for economic losses and $30,000 for pain and suffering. The plaintiff and A and B are each apportioned 33.3% (one-third) of the fault for economic losses. The plaintiff and A and B are each apportioned 33.3% (one-third) of the fault for pain and suffering. The result for the economic losses will be different than the first example, since the plaintiff here is partially at fault. Thus, A and B will each be responsible for the remaining 66.7% (two-thirds), since each is jointly and severally liable for all damages not caused by plaintiff himself (subject to a right to contribution from each other). The result for the pain and suffering damages, however, is not as clear in New York. If the plaintiff's portion of the fault is included in the calculation, defendants A and B will not be liable for the full $20,000 in pain and suffering damages (the total minus the Plaintiff's portion) because they are each not more than 50% at fault for the pain and suffering damages of $30,000. If the plaintiff's portion of the fault is not included in the calculation, however, each defendant will be liable for the full $20,000 in pain and suffering damages because they are both 50% at fault for the total damages attributed to all defendants (not including those caused by plaintiff), which is $20,000. At this point, New York law indicates that it is up to the courts to make this decision on a case-by-case basis.

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Is it considered negligence if someone violates a law?

Violation of a Statute

In some circumstances, proof that an individual violated a statute or law is enough to prove that the individual is negligent. Under the doctrine of "negligence per se," an individual is negligent if he or she violates a legislative statute, regulation, or ordinance and causes an injury or loss.

Example: Suppose an ordinance prohibits people from making U-turns at a particular intersection. If an individual makes an illegal U-turn and injures someone while making the turn, the person who made the illegal turn can automatically be held responsible for the injuries, regardless of whether he or she used reasonable care when making the U-turn. The fact that he or she violated the ordinace constitutes negligence per se.

The doctrine of negligence per se applies only if the accident is the type of accident the statute or ordinance was designed to prevent and the injured party is within the class of people that the statute or ordinance was meant to protect.

Example: A U-turn law is normally enacted to protect other drivers passing through the intersection. If a driver passing through the intersection is injured by someone making an illegal U-turn, the doctrine of negligence per se is applicable.

In certain situations an individual's violation of a statute or ordinance is excusable in certain circumstances. For the most part, these permissible excuses include physical circumstances beyond the individual's control, sudden emergency situations not created by the individual, and/or situations in which compliance with the law would create a greater danger to those involved than would a violation of the law.

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What are some common defenses to negligence?

Assumption of Risk

If you participate in activities that you know are risky or dangerous, and are injured as a result, it may be determined that you "assumed the risk" of injury associated with that activity. For example, a skier who knowingly skis down a steep mountain containing large moguls assumes the risk of harm inherent in such an activity. His claim for damages would most likely fail, unless his injury resulted from a condition unrelated to those for which he was fully able to appreciate and assess the risk. For example, the skier may have realized that skiing can be hazardous and have a full understanding of the dangers. However, he would not have anticipated that a ski-lift cable would break and fall in his path, causing him to fall and get injured. Assumption of risk does not protect the defendant in this type of situation.

Open and Obvious Danger

Another defense which is similar to assumption of risk arises when you engage in an activity that poses an open and obvious danger. Whereas assumption of risk focuses on an array of dangers that are inherently possible, open and obvious conditions deal with one's knowledge of a specific known threat. For example, suppose you enter your neighbor's yard knowing that it contains an angry pit bull, and despite the posted warning, "Danger, attack dog! Do not enter." Your neighbor could use the open and obvious danger defense to argue that you clearly understood the danger of being bitten by the dog but decided to enter the property nonetheless.

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What is the Statute of Limitations for negligence claims?

As with all lawsuits, a statute of limitations restricts the time in which you can file a lawsuit for negligence. Generally in New York, the statute of limitations for negligence is three years, but many exceptions may apply and the time period must be calculated by an attorney. If you miss the deadline, you have no legal recourse. Note that this time is only two years and six months for medical malpractice claims. N.Y. C.V.P. § 214a. Also note that the time is much shorter if you are alleging negligence against a public entity, municipality, or public employee, in which case a notice of claim must be filed within 90 days from the date of the accident. N.Y. Gen. Mun. Law § 50. If you are injured, it is essential that you contact an attorney immediately so as be sure to preserve all of your legal rights before they are barred by law.

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Burden of Proof

The burden of proof in all negligence claims, including automobile accident claims, is on the plaintiff. This means that the plaintiff must go forward first with the evidence at the trial and must present evidence from which a fact finder (judge or jury) could reasonably conclude that the defendant was negligent, that the defendant's negligence proximately caused the accident, and that the plaintiff's injuries are causally related to the accident. The standard which plaintiffs are held to in civil cases, including automobile accident cases, is called the "preponderance of the evidence" standard. It is much less strict than the standard in criminal cases of proof "beyond a reasonable doubt." The "preponderance of the evidence" standard has been defined to mean that the evidence presented by plaintiffs must be more likely to be true or accurate than not true.

This can be illustrated for juries by comparing it to the scale of justice. If one party's evidence is placed on one side of the scale and the other party's evidence is placed on the other side of the scale, the slightest tipping in favor of the party bearing the burden of proof on an issue means that that party has prevailed on the particular issue. If the scale remains evenly balanced, then the party who bears the burden of proof on an issue has failed to sustain the burden. Each party who has the burden of proof on a particular issue, in order to prevail on that issue, must sustain their burden of proof based upon a "preponderance of the evidence."


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