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What is the Difference Between Negligence and Negligence Per Se?

Posted in Personal Injury on February 11, 2022

Most cases involving personal injury in New York City are based on negligence or negligence per se. These are both legal theories that hold a party financially responsible for damages caused by the party’s conduct. The main difference is whether the party is presumed negligent or the injured victim needs to prove negligence.

What is Negligence?

Negligence occurs when a party fails to act with the level of care a “reasonable person” would have used under the same circumstances. The “reasonableness” of a situation changes depending on the circumstances involved. 

The case’s outcome is based on what a jury decides a “reasonable person” would have done. If the defendant’s actions fell short of that standard, the jurors may find that the defendant was negligent.

A negligence claim involves four legal elements:

  • Duty of care
  • Breach of duty 
  • Causation
  • Damages

Reasonableness falls under the requirement of breach of duty. If the defendant did not use reasonable care, he breached the duty of care owed to the other party. We all owe a duty of care to others to avoid conduct that places them at risk of harm or death. In personal injury lawsuits, the duty owed to another party may be defined more narrowly depending on the laws governing that type of tort.

Proving negligence may require expert witnesses to testify what a reasonable person would have done in a similar situation. Even though the person may have acted unreasonably, that does not automatically mean the person is liable for damages. The plaintiff must also prove that the defendant’s negligent conduct was the direct and proximate cause of their injuries and damages. 

What is Negligence Per Se?

In personal injury cases involving negligence per se, the defendant’s conduct is presumed negligent because he violated a specific law. The law must protect the public interest. Additionally, the plaintiff must have suffered an injury intended to be prevented by the law, and the plaintiff must belong to the group that the law intends to protect. The theory is that breaking these laws puts the public at risk of serious injury or death.  

Examples of laws and regulations that could lead to personal injury claims based on negligence per se include, but are not limited to:

The burden of proof regarding duty and breach of duty shifts from the plaintiff to the defendant. In other words, the injured party no longer needs to prove that the defendant acted without reasonable care. Instead, it is presumed that the defendant’s conduct was unreasonable because it broke one of the laws enacted to protect the public. 

However, negligence per se does not relieve the plaintiff from proving causation and damages. The plaintiff must still prove that the defendant’s conduct was the direct and proximate cause of injury. They must also prove they sustained damages because of the negligent conduct.

If the plaintiff cannot link the conduct to the cause of their injury or prove damages, they cannot recover money for their claim. 

Comparative Fault Applies in Both Types of Personal Injury Cases 

Regardless of whether you base your allegations on negligence or negligence per se, the defendant can use comparative fault as a defense to reduce your damages. Under New York’s comparative fault laws, being partially to blame for the cause of your injury does not bar you from recovering compensation for damages. 

However, comparative fault does reduce the amount of money you receive for your damages. For example, if the jury finds that you are 30% to blame for the cause of a car accident, the amount you receive for damages is 30% less than the jury awards. 

Let’s assume the jury awards $300,000 for damages. Because you were 30% to blame for the cause of the car wreck, the defendant is only liable for $210,000. The award you are entitled to is reduced in proportion to your percentage of fault (30%). 

Damages Available in a New York City Personal Injury Case

The damages a plaintiff can receive are the same whether the lawsuit is based on negligence or negligence per se. Once the plaintiff proves negligence, the defendant can be held liable for damages including:

  • Medical bills and expenses related to the treatment of injuries, including medications, medical equipment, and therapy
  • Past and future lost wages, including decreases in earning potential 
  • The physical pain and suffering caused by injuries
  • Mental and emotional distress
  • Loss of enjoyment of life and decreased quality of life
  • Permanent disfigurement, scarring, disability, or impairment 

The amount you might receive for a personal injury claim depends on the severity of your injury, comparative negligence claims, and other factors. A personal injury lawyer can discuss the details of your case to give you a better idea of what you might receive if you file a claim or lawsuit.

Contact Our Personal Injury Law Firm in New York, NY

If you need legal assistance, contact the NYC personal injury lawyers at Law Offices of Jay S. Knispel Personal Injury Lawyers at your nearest location to schedule a free consultation.

We have two convenient locations in New York:

Law Offices of Jay S. Knispel Personal Injury Lawyers – New York City Office
450 7th Ave #409
New York, NY 10123
(212) 564-2800

Law Offices of Jay S. Knispel Personal Injury Lawyers – Brooklyn Office
26 Court St Suite 2511
Brooklyn, NY 11242
(718) 802-1600

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