Types of Negligence and How They Apply in Different Scenarios

A car comes careening around a corner, disregards a stop sign, and speeds into an intersection – barely missing pedestrians and other vehicles in its path. Thankfully no innocent people are hurt, but in too many cases accidents like this cause serious injury and even death. Often, people will use the term “negligent” to describe the actions of the driver described above, but what does negligence mean in legal terms?

The Four Elements Needed to Prove Negligence

Put simply, negligence has four elements: duty of care, breach of duty of care, causation, and damages. Each of these elements must be established to prove that negligence legally exists in a personal injury claim. More on the four elements of negligence is below:

1. Duty of Care. Every person must act toward others with the caution and prudence that a reasonable person in the same circumstances would use. For example, drivers must obey the rules of the road and building owners must make sure that their property is reasonably safe and free from hazardous defects, and that they comply with the requisite codes and local ordinances. This is expected because these are things that a reasonable person would do.
2. Breach of duty of care. This means that the requisite duty of care was not adhered to. For example, a driver failed to yield the right of way when making a left turn, or a building neglected to repair a mis-leveled portion of sidewalk on its property.
3. Causation. Did the failure to conform to the requisite duty of care cause an accident or harm others? There must be a causal relationship between the breach and the harm. For example, the driver who turned without making sure his path was clear struck another vehicle and caused the driver of that vehicle to be injured. Causation can be direct—this is also referred to as cause in fact—or it can be through proximate cause, which is when a defendant’s actions were the primary cause of the plaintiff’s injury, even if the defendant’s actions did not directly cause the accident. For example, in a car accident the plaintiff may be injured directly when they were struck by the defendant’s vehicle – this would be an example of direct causation. Or the defendant may strike a tree, causing it to fall onto the plaintiff’s home. If the plaintiff is injured when a portion of their ceiling collapses the defendant is the proximate cause.
4. Was there a victim who suffered injury or other form of loss because of all of the above? If so, negligence can likely be proven and the victim has the opportunity to obtain compensation for the damages they suffered.

Different Types of Negligence

While seemingly straightforward, the concept of negligence itself can also be broken down into four types of negligence: gross negligence, comparative negligence, contributory negligence, and vicarious negligence or vicarious liability.

• Gross negligence refers to a more serious form of negligent conduct. Let’s suppose that in the example from above, the car careening around the corner is a blue and white police car with its lights flashing and sirens blaring. The police are responding to an ongoing emergency and are racing to the scene. While the police may be committing ordinary negligence by failing to abide by the rules of the road, ordinary negligence is not enough to sustain a case against them if you are injured. In order for an injured party to recover compensation, they would need to prove that a more serious violation took place, that the police acted recklessly and disregarded the likelihood of harming others. If the police were driving dangerously fast and blasted through red lights and stop signs, this would constitute an example of gross negligence.
• Comparative negligence arises when multiple parties involved in an accident share some of the blame. In New York a plaintiff can be partially liable but still recover for damages they sustained. The apportionment of liability is determined by a jury – and the amount awarded is reduced by the percentage of fault that is attributed to the plaintiff. This means that if the plaintiff were to be found 30% responsible and they were awarded $100,000 in damages, the damages would be reduced to $70,000. Imagine that a property owner fails to repair a known defect on the sidewalk that creates a tripping hazard, but at the same time the plaintiff was drinking alcohol before they tripped and was not looking where they were going. While the defect certainly caused the plaintiff to fall in this example, the plaintiff will also likely be found to bear some percentage of fault.
• Contributory negligence differs from comparative negligence. While under a comparative negligence system a plaintiff may still recover for damages if they were partially at fault, but in a contributory negligence system, any fault on behalf of the plaintiff will bar them from recovery. There are also hybrid systems, where a plaintiff can recover for damages so long as they are not found to be more than 50% at fault. Currently, not many states adhere to contributory negligence systems, since it can be so harsh on the plaintiff.
• Vicarious negligence, or vicarious liability, is another form of negligence that needs to be accounted for and analyzed when considering a lawsuit to recover damages. This unique form of negligence permits another person or a company to be held responsible for the conduct of another. For example, a parent for their minor child, or a company for their employee. In the car accident example, imagine that a parent let their unlicensed child take their car out for a joyride; they can be found to be vicariously negligent or liable for any harm that results. Similarly, a company is responsible for its employee when they are acting within the scope of their employment and injure a third party. Imagine that in the car accident example above the driver was a delivery person or otherwise acting within the scope of their employment. In those cases, the company who employed the driver can be found to be vicariously liable for the harm the driver caused through his negligence.

It is important to note that not all these types of negligence exist everywhere; states have different laws regarding them. For example, New York is a comparative negligence state, meaning that no cases in that state would be resolved using contributory negligence.

Attorneys Skilled in Negligence Cases Getting You Results

Experiencing an accident and navigating the process of initiating a claim and seeking justice can be an overwhelming and difficult process. In particular, it is important that an attorney assess the facts and circumstances to determine whether the harm was caused by someone else’s negligence. The expert attorneys at Block O’Toole & Murphy have years of experience obtaining compensation for clients who were injured in accidents caused by negligence. Noteworthy results include:

• $110,174,972 jury verdict for a 23-year-old bicyclist who was biking under a construction site on overhead subway tracks when he was struck by a falling object dropped from above, resulting in his paralysis from the waist down
• $32,756,156 jury verdict for a 60-year-old veteran who was severely injured when he was struck by an intoxicated driver while trying to help others in an unrelated car accident
• $20,181,484 verdict for a man who was left with almost no function in his arm after it was injured in a car accident caused by icy roads
• $15,000,000 settlement in a wrongful death case for the wife and five children of a worker who was tragically crushed by a falling air chiller that was hoisted by improper chains
• $14,000,000 settlement for a motorcyclist who was struck by a truck making a left turn, causing him to undergo a below-the-knee amputation and to need over 10 surgeries
• $13,500,000 settlement for a 24-year-old pedestrian who suffered a brain injury after she was struck by a company-owned vehicle
• $12,000,000 settlement for a tunnel worker who suffered severe injuries after he fell 40 feet down a ventilation shaft on his work site

If you have been injured as a result of someone else’s negligence and you want to discuss your legal options, call 212-736-5300 or fill out our contact form to speak to an attorney today. We serve all of New York and New Jersey.