Common Law Negligence

At common law negligence is defined as the failure to use ordinary care. In the automobile negligence context, negligence is the failure to use that degree of care that an ordinary prudent driver would have used under the circumstances. Negligence may arise from the other driver’s omission or failure to act as an ordinary prudent driver would have done under the circumstances or from doing what an ordinary prudent driver would not have done under the circumstances.

Negligence arises from a breach of duty and is relative to time, place and circumstance. Ordinary care must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect. You do not have a meritorious cause of action for negligence unless you were damaged from another party’s breach of duty.

Duty: The Defendant Has a Duty to Follow the Rules of the Road

The offending driver owes a duty to you the plaintiff to follow the rules of the road. The defendant must follow all vehicle and traffic rules as a reasonable prudent driver under the circumstances. The court determines what laws are applicable to the particular case.

Breach of Duty: The Defendant Breached His Duty of Care by Violating the Rules of the Road

The jurors determine the extent to which the offending driver breached the duty to you. A sudden and unforeseen accident is not actionable. New York allows the offending driver to request a jury charge of emergency as a defense to the claim of breach of duty. If the driver is faced with a “sudden and unexpected” circumstance, the driver may not be negligent if his/her actions were reasonable and prudent in the emergency context. The court will allow an emergency instruction to the jury if there is some evidence that the offending driver was confronted with a sudden and unforeseen occurrence that s/he did not create.

Proximate Cause: The Breach of Duty by the Defendant Was a Proximate Cause of Your Injuries

You do not recover money damages just because you were in an accident. The mere fact that the defendant driver was negligent in and of itself does not make the defendant driver liable for your injuries. In order for a defendant driver to be liable to you, the driver’s negligence must be the proximate cause of your injuries. That means that the other driver’s negligence must be a substantial factor in causing your injury.

Damages

To recover for your personal injuries you must prove that the defendant had a duty to act as a reasonable prudent driver would have acted under the circumstances. That the defendant breached this duty and the breach of this duty was a proximate cause of the injuries. Most importantly, you must prove that you were damaged as a result of the accident.

The defendant can plead as an affirmative defense that you are partially to be blamed for your injuries. For example, the defendant may allege that you were not wearing your seatbelt. Your failure to wear a seat belt is relevant to the amount of damages you will recover for your injuries.

Comparative Negligence

We have in New York what is called comparative fault. That means that the jurors must first consider whether the defendant was negligent and that negligence was a proximate cause of the accident. Second, the jurors will then have to consider whether you, the plaintiff, was also negligent and whether your behavior or conduct contributed to causing the accident or your injury.

The burden is always on the defendant to prove that your negligence contributed to causing the accident or your injuries. If the jurors find that you were not negligent or your negligence was not a contributing cause of the accident or your injuries then they will find that you were not at fault and move on to consider damages.

However, if the jurors determine that you were negligent and your negligence contributed to causing the accident then they must apportion fault between you and the defendant. The jurors must weigh all the facts and circumstances and consider the total fault of both you and the defendant and apportion percentages between you and the defendant. The total percentages of fault must equal one hundred percent.