Do I Have A Valid Case?

To obtain compensation for victims in a negligence case, New York personal injury lawyers must essentially prove that the tortfeasor’s (negligent actor’s) conduct fell below the standard of care, and there are several ways to establish this point.

The plaintiff nearly always has the burden of proof in civil court, and to meet this burden, victim/plaintiffs must establish the elements of a negligence case by a preponderance of the evidence, which means “more likely than not.” This burden is much different from the one that Bronx personal injury lawyers deal with in criminal court, which is largely why, in the 1990s, O.J. Simpson was acquitted of murder in criminal court but held legally responsible for the same two deaths in a later civil proceeding.

A preponderance of the evidence is much like the scales of justice. If the plaintiff’s side is even slightly heavier than the defendant’s side, the plaintiff has established the point by a preponderance of the evidence, even if the defendant has some very compelling arguments.

How New York Personal Injury Lawyers Evaluate Cases

A successful negligence case contains five elements:

  • Duty: All people have a legal responsibility to control the way they act in a way that prevents harm to others. Most people have a duty of reasonable care, which essentially comes from the Golden Rule (“do unto others as you would have them do unto you”) which many schoolchildren once learned. In other situations, such as those involving a professional driver or a doctor, a higher duty of care applies.
  • Breach: Tortfeasors violate their duties when their conduct falls too far below the standard of care for that particular instance. Since the jury or other fact-finder usually determines how far is too far, breach is a fact-based element that’s largely dependent on the strength of the victim/plaintiff’s evidence. Common breaches include drunk driving, nursing home neglect, and medical misdiagnosis.
  • Cause: Next, New York personal injury lawyers must establish a connection between the breach and the damages. For example, the car accident must have occurred because the tortfeasor was drunk. Many people refer to this element as “but-for causation,” i.e., the damages would not have happened but for the tortfeasor’s conduct or misconduct.
  • Foreseeability: In most cases, the damages must be a direct consequence of the breach; in other cases, this concept is expanded. Foreseeability is a legal element.
  • Damages: Victim/plaintiffs must suffer actual physical harm, such as a trauma injury in a car crash or illness due to hazardous waste exposure.

Although the damages must be tangible, victim/plaintiffs are also entitled to non-economic damages for items like pain and suffering, at least in most cases.

Shortcut to Victory

In many cases, New York personal injury lawyers can rely on the negligence per se (negligence “as such”) doctrine. This rule applies if:

  • Statutory Violation: The individual or corporate tortfeasor must break a safety law, such as speeding in a motor vehicle or illegally dumping trash.
  • Criminal Penalty: If the tortfeasor violated a municipal ordinance or another such law that only has a civil penalty, the legal effect may be a presumption of negligence as opposed to absolute proof.
  • Substantial Cause: Just like in regular negligence cases, in negligence per se cases, New York personal injury lawyers must show a factual and legal connection between the tortfeasor’s act and the victim’s damages.

The negligence per se rule has a long history, dating back to 1920.

To illustrate the difference between these two legal theories, consider New York’s distracted driving law. It forbids a number of behaviors commonly associated with distracted driving, such as talking on a cellphone, texting, “taking or transmitting images,” accessing or viewing a web page, and “playing games.” However, it does not apply to non-device related distraction, such as eating or applying makeup while driving.

So, if Terry Tortfeasor was talking on his cellphone when he crashed into Veronica Victim, a New York personal injury lawyer could use the negligence per se rule to obtain compensation for Veronica, but if Terry was eating a cheeseburger while he was driving, the distracted driving law does not apply.

Accident victims have several legal options in the Empire State. For a free consultation with an experienced New York personal injury lawyer, contact Napoli Shkolnik PLLC. We do not charge upfront legal fees in negligence cases.