FAQs

What is negligence?

In its most simple definition, it means that someone was careless and as a result of being careless, someone else was injured.

Negligence serves as the basis for a personal injury lawsuit. Negligence is any conduct that falls below the recognized standards of behavior established by law for the protection of others against unreasonable risks of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under the same or similar circumstances. To establish negligence, a plaintiff (the person injured) must be able to prove or demonstrate in court that the defendant (the person being sued) had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant’s negligent conduct was the cause of the personal injury or harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged. For example, the driver of a tractor trailer truck hauling a large piece of machinery owes a duty to other drivers on the freeway to be careful. If the truck driver failed to strap down the machinery and it fell off the truck, landing on a passing car and injuring or killing the driver of the car, a personal injury or wrongful death claim could be made based upon the negligence of the truck driver. Hiring a lawyer / attorney is always advised if you feel you may have a personal injury or wrongful death case.

 

 

What does the term "liable" mean?

The term liable generally means that a court has determined individual, company or some other entity caused, and is responsible for, another person's injury or death.

When a defendant is found liable, he or she is generally obligated to compensate the injured party for their damages. The term "liable" is often confused with "guilty"; However the term "liable" is used in civil cases and the term "guilty" is only is used in criminal cases. A consultation with an attorney will help you determine if you may have a case against an individual or company.

 

What does the term "reasonable person" mean?

A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under the same or similar circumstances.

The hypothetical reasonable person provides an objective by which the conduct of others is judged. Using the truck driver example above, the driver who failed to strap down the heavy machinery on his truck would be considered negligent if other truck drivers hauling the same machinery would typically strap such machinery down.

What does 'duty' mean in a lawsuit for injuries?

When talking about negligence, duty is the legal obligation that the law imposes on us to protect and respect the safety of others around us.

That means doing something that a reasonably prudent person would do under the same circumstances. For example, when we drive a car, we owe a duty to drive safely to everyone else on the highway and to the pedestrians around us. Similarly, when a company manufactures a car, it has the duty to make sure it is manufactured safely. The extent of a duty to act safely, though, is often the complicated part of a lawsuit. A consultation with a lawyer will help you determine if you may have a case against an individual or company.

 

What is contributory negligence?

The term "contributory negligence" is used to describe the actions of an injured person that may have also caused or contributed to his injury.

For example, if you were hit by a bike while crossing the street, but you jumped into the street without looking first then your carelessness will be taken into consideration and any money that you receive may be discounted because of your own carelessness. If you are found to have contributed to your own injury, the rules in some states will prevent you from collecting any money. Many states have done away with the concept of contributory negligence altogether and instead use the concept of "comparative negligence." Comparative negligence looks to the degree of fault of each party in determining whether an award is justified in the case and what amount the award will be.

 

What is comparative negligence?

Comparative negligence works on a percentage basis to assign a degree of fault for the injuries suffered.

For example, in a broad-side car accident case where the injured person is awarded $100,000, the driver who broadsided the other car might be found to be eighty-percent responsible for the accident because of, say, turning on a yellow light. The injured plaintiff could also be found to be, say, twenty percent responsible for not exercising caution by failing to look both ways. In such a case, the award would be reduced to $80,000. An attorney specializing in negligence cases can help you determine if you are entitled to receive compensation for damages, injuries or death.

 

What is the "assumption of the risk" doctrine?

If you have knowingly and voluntarily assumed the risk inherent in a particular action that caused an accident, you cannot sue the other person for negligence if you get hurt.

For example, if you see a sign that says "do not touch – hot" but you touch the object anyway and burn your hand, you may be found to have "assumed the risk." This would prevent you from recovering any money. Another common example of assumption of risk is participation in a sport in which certain risks are inherent to the game. For instance, if you are playing football and you get tackled and break an arm, you may not sue the person who tackled you. On the other hand, if you are playing tennis and a fight breaks out and you are hit in the head with a racket, you may be able to sue the person who hit you, since the assumption of risk does not cover any injury that was intentionally inflicted and not an inherent part of the game.

What is strict liability?

Some persons or companies may be held "strictly liable" for certain activities that harm others, even if they have not acted negligently or with wrongful intent.

Under this theory, a person injured by a defective or unexpectedly dangerous product, for instance, may recover compensation from the maker or seller of the product without showing that the manufacturer or seller was actually negligent. Also, persons or companies engaged in using explosives, storing dangerous substances, or keeping dangerous animals can be strictly liable for harm caused to others as a result of such activities. The theory behind imposing strict liability on those conducting such activities is that these activities pose an undue risk of harm to members of the community. Thus, anyone who conducts such activity does so at his own risk and is liable when something goes wrong and someone is harmed. The people who create certain risks are thus made accountable. In strict product liability, it is unnecessary to prove that the manufacturer was negligent; all you have to do is show that the product was defective, that it was allowed to be sold, and that the injuries were caused by the defect in the product. Some instances in which the law might apply strict liability are with regard to product liability, abnormally dangerous or ultra-hazardous activities and animal owner’s liability. For example, a plaintiff may be entitled to compensation after a defective product injures him or her regardless of whether the manufacturer was actually negligent. In other words, the plaintiff only has to prove that a product is defective or unreasonably dangerous and that the defect caused the injury. It is not necessary to show that the manufacturer was careless or negligent, which is much more difficult to prove. With an attorney’s professional advice, you can determine whether or not you may have a case.

 

What happens in a deposition?

If you file a personal injury lawsuit, the attorney for the defendant will likely "depose" you or take your deposition. A deposition is the process in which the defendant's attorney asks you questions about the accident and your answers are recorded.

You swear to tell the truth before you answer. A deposition is usually done in a conference room. Later, if you testify in court, your answers will be compared to your deposition testimony and the defendant will question you as to any inconsistencies. It is advised to have a lawyer coach you prior to being deposed. This way, you will know what to expect, and will be more comfortable during the deposition.

 

What is premises liability?

The term "premises liability" generally refers to accidents that occur due to the negligent maintenance or unsafe or dangerous conditions upon property owned by someone other than the accident victim.

Many states have laws that generally require landowners to maintain their property in a manner that does not cause injury to those that, for various reasons, visit the property. Often, these laws pertain to both business owners and homeowners. In many states, property owners and business establishments have been found to have a duty to provide a safe environment for individuals on their premises. If you are injured because a property owner or a business establishment fails to provide a safe environment, you may have a right to bring a claim for various damages incurred due to your injury. In many states, these damages include pain and suffering, medical expenses and lost wages. Premises Liability cases involve injuries sustained on the property or premises of a negligent third party. These types of cases often involve slip and fall accidents, which usually occur when a defective condition, foreign substance or object causes a fall. Crucial to settlement recovery is being able to show how long the defect or substance was there, how visible it was, and how much notice the owner had of the dangerous condition before the accident happened. An attorney will be able to help you determine whether you have a case due to premises liability and/or negligence.

Scott Charnas is an attorney serving New York, Boston, and surrounding areas. He specializes in these areas, and can help you understand and navigate through the legal process.

 

 

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