If you have a personal injury claim in New York, your case is probably based on either negligence or negligence per se. You’re probably more familiar with the term “negligence,” but both legal theories are important because they are the foundation for holding a party financially responsible for damages that their acts caused to another party. The key difference is whether the party is presumed negligent, or the injured victim needs to prove negligence. Read on to learn the detailed differences between negligence and negligence per se and why it’s important for your personal injury case.
What is Negligence?
Negligence occurs when an individual or entity fails to act with reasonable care. The reasonable care refers to the type of care that a “reasonable person” would have used if they were in that position.
What is considered reasonable changes depending on the specific situation. If the defendant’s conduct doesn’t meet this reasonable person standard, then a jury may find that the defendant was indeed negligent.
Elements of Negligence
There are generally four elements of negligence:
- Duty of care
- Breach of that duty
- Causation
- Damages
The reasonableness standard applies to the requirement of breach of duty. If the defendant didn’t use reasonable care, then they have breached the duty of care that they owed to the other party. In general, everyone owes everyone else a general duty of care to avoid behavior that brings a risk of harm or death. However, in a personal injury lawsuit, the duty may be more specific, such as a duty to all drivers and pedestrians when you’re a driver on the road.
In order to show negligence, you might need an expert witness to testify as to what a reasonable person in similar circumstances would have done. And even if the person would’ve acted in an unreasonable way, it doesn’t necessarily mean that the party is liable for damages. The plaintiff still has to prove that the defendant’s negligent behavior was both the direct cause and the proximate cause of their injuries. And that their injuries resulted in damages.
What is Negligence Per Se?
In contrast to regular negligence, negligence per se is when the defendant’s acts are presumed to be negligent because they broke a law or violated a specific statute. The law or regulation must protect the public interest, and the plaintiff must have suffered the type of injury that the law is intended to prevent or stop; also, the plaintiff must be a member of the group that the law is intended to protect. The rationale for this is that violating these laws increase the risk of injury or death to the public.
Examples of Negligence Per Se
Some examples include:
- Building codes
- Criminal statutes prohibiting assault, murder, or other intentional acts
- Driving under the influence of drugs or alcohol
- Speed limits
Burden Shift
There’s a shift of the burden of proof here. Typically, the plaintiff has the burden to prove their case. However, in negligence per se, the pendulum swings towards the defendant. The plaintiff doesn’t need to show that the defendant breached the duty of reasonable care, rather this is presumed because the defendant violated one of the laws that was intended to protect public safety.
But the injured party must still show causation; in other words, that the defendant’s conduct was the direct and proximate cause of the injury, which resulted in related damages. If the plaintiff can’t show the causal relationship to their injury or prove damages, they can’t recover financial compensation.
Talk to a New York Attorney about Your PI Claim
Regardless of whether your claim is based on a theory of negligence or negligence per se, you will benefit from having an experienced personal injury lawyer on your side. Fortunately, you can connect with a skilled MOWK Law personal injury attorney who will assist you with exploring your options. Contact us today.