The Four Elements of Negligence

At its core, a premises liability claim is grounded in negligence. To establish negligence, a plaintiff must prove four essential elements:

1. Duty of Care – The defendant owed a legal duty to exercise reasonable care toward the plaintiff.
2. Breach of Duty – The defendant failed to meet that duty of care.
3. Causation – The defendant’s breach directly and proximately caused the plaintiff’s injury.
4. Damages – The plaintiff suffered actual harm or injury as a result.

If any one of these elements is not proven, the claim will fail.

Breach of Duty in a Premises Liability Case

In a premises liability case, proving a breach of the duty of care requires more than simply showing that a dangerous condition existed. The plaintiff must demonstrate that the property owner (or occupier) was legally responsible for the condition. This typically requires proof that the defendant:

1. Created the Dangerous Condition – The defendant personally caused the hazard. For example, spilling a liquid on a store floor and failing to clean it up.
2. Had Actual Notice – The defendant knew about the dangerous condition but failed to correct it. Actual notice may be shown through reports, complaints, or admissions.
3. Had Constructive Notice – The defendant did not actually know about the condition, but should have known about it through the exercise of reasonable care. Constructive notice is often established by showing that the condition existed for a sufficient period of time that a reasonable inspection would have discovered it.

Without proof of creation, actual notice, or constructive notice, a plaintiff generally cannot establish that the defendant breached the duty of care.

Status of the Injured Person: Invitee, Licensee, and Trespasser

Premises liability law also considers the legal status of the injured person at the time of the incident. Traditionally, entrants are classified into three categories:

• Invitee – A person invited onto the property for the owner’s benefit, such as a customer in a store. Property owners owe invitees the highest duty of care, including a duty to inspect for and remedy dangerous conditions.
• Licensee – A person permitted to enter the property for their own purposes, such as a social guest. The owner generally must warn licensees of known dangerous conditions that are not obvious.
• Trespasser – A person who enters without permission. The duty owed is typically limited to refraining from willful or wanton misconduct, though exceptions may apply in certain situations.

Foreseeability and Duty of Care

Although different classifications carry different traditional duties, the status of the injured person is often intertwined with the concept of foreseeability. Foreseeability asks whether it was reasonably predictable that someone in the plaintiff’s position could be harmed by the condition.

If the injury was foreseeable, a duty of care is generally recognized. If the injury was not foreseeable, then no duty may be imposed. Thus, while invitees, licensees, and trespassers may each be owed some form of duty, their classification can influence whether the harm was reasonably foreseeable and whether a duty existed under the circumstances.

Conclusion

To prevail in a premises liability case, a plaintiff must establish the four elements of negligence—duty, breach, causation, and damages. In addition, the plaintiff must prove that the defendant created the dangerous condition or had actual or constructive notice of it. Finally, the injured party’s legal status as an invitee, licensee, or trespasser may affect both the scope of the duty owed and whether the harm was foreseeable. Together, these principles form the foundation of premises liability law.

The post What Must Be Proven in a Premises Liability Case appeared first on Queens Attorney Emiliano Perez.

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Joint and several liabilities are inequitable because a defendant can potentially be held responsible for more than their portion of the fault. For this very reason, it leads to additional lawsuits for contributions from other defendants who were also at fault or for third-party defendants to be brought in pending lawsuits, which can cause many delays.

While in Florida, each defendant is only liable for their percentage of fault without the need for defendants to sue each other for contribution or to bring third-party defendants in a pending lawsuit. Under what is known as the Fabre doctrine, the percentage of fault of a non-party will be included in the appointment of liability between all parties involved and included in the verdict sheet. The Fabre defendant will not be included in the final judgment because of due process considerations, so they will not actually have to pay anything, but the amount of the verdict will be reduced by the percentage of the fault that the jury apportioned to them.

This scenario is particularly accommodating when a passenger of a vehicle involved in a car accident wants to sue the driver of another vehicle for negligence without bringing in the driver of the vehicle that they were a passenger in at the time of the car accident. This is usually because the driver of the vehicle that they were a passenger in at the time of the car accident is a family member or friend. In NY, if the driver of the vehicle that the plaintiff was a passenger in at the time of the car accident was even slightly at fault for causing the crash, the defendant will usually bring them in the lawsuit as a third-party defendant. With the Fabre doctrine, there is no need to bring them in. Their portion of liability will be taken into consideration without their presence.  I remember countless times when clients of mine would tell me that they did not want to sue their family members or friends even if they were covered by insurance and were reluctant to file a lawsuit to keep them out of it. The Fabre doctrine eliminates those concerns completely. 

The post New York should abolish joint and several liability and start applying a system of pro rata share of fault for negligence cases like in Florida. appeared first on Queens Attorney Emiliano Perez.

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If you are involved in a car accident, you are most likely shaken up. You may have even been taken to the hospital in an ambulance or by someone else. Although you know that your life has been significantly interrupted, you do not know how to start picking up the pieces.

Three Things You Must Do After Your Car Accident

1. The first thing to do after you are involved in a car accident and are injured is to seek medical treatment. This is not because you plan to sue for your injuries, it’s because your health is the most important thing above all else. If you were taken to the hospital from the accident scene or make a visit later on, make sure to follow the hospital’s discharge instructions, including any follow up visits or referrals that are recommended to you.
2. The second thing to take care of is obtaining a copy of the police report. The police station that patrols the area where the accident scene is located can help you obtain a copy. The police report has important information that you will need for your claims such as the names and addresses of the parties involved, the registration and insurance information of the vehicles involved, information of any witnesses, and any statements made to the police by the parties involved or by any witnesses.
3. The third thing you should do is make a claim with the No-Fault insurance carrier, which may or may not be your own car insurance carrier. It depends on whose car you were occupying at the time of the accident or if you were a pedestrian or bicyclist, as explained below. Now that you have your police report, you should have the No-Fault insurance carrier’s information. An attorney may assist you in locating this information on the police report. The No-Fault application, known as the NF-2, should be filled out and sent to the No-Fault insurance carrier no later than 30 days after the accident occurred, or they may try to deny your claim. Since New York is a No-Fault State, every registered vehicle must carry No-Fault insurance. No-Fault benefits cover the medical expenses, lost wages, and out of pocket expenses of covered persons up to the No-Fault policy limits. This coverage is available to the covered persons regardless if they were at fault or not. The covered persons include the driver of the vehicle, the passengers, and any pedestrians or bicyclists that the vehicle may have struck. In some instances, you may make a No-Fault insurance claim with the insurance carrier of a policyholder that you live with if there is no other option. Tip: Make sure that every medical provider that treated you knows the No-Fault information, including but not limited to who the carrier is and the claim number. Do not assume that the medical provider will bill the No-Fault insurance carrier and not you directly. Stay on top of all medical bills that you receive in the mail.

Starting a Claim Against the Responsible Parties

Now that you have taken care of the preliminary issues to protect your health and make sure that you are covered by No-Fault, the next step is to make a claim for your personal injuries against the party or parties responsible for the accident. Your attorney can assist you with starting the claim with the bodily injury insurance carrier that insures the parties responsible for your injuries. Once a claim is commenced, the attorney can attempt to settle your claim but if the insurance carrier is not willing to adequately compensate you for your injuries, prepare to go forward with litigation! It will be a long road but with an experienced attorney by your side you will make to the finish line. One thing to keep in mind is that since New York is a No-Fault state and your economic damages will presumably be at least partially covered by the No-Fault benefits, you must prove that you have suffered what the insurance law calls a “serious injury” in order to collect for pain and suffering. The rationale behind this rule is to avoid suits for minor injuries. That is why it is imperative that you hire an attorney that understands the meaning of a serious injury and is experienced with car accident suits. Please read our article on the serious injury threshold for more information.

The post If You Are Involved in a Car Accident appeared first on Queens Attorney Emiliano Perez.

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Were you partially at fault for causing an accident that you were injured in and are afraid to make a claim? If so, keep reading.

New York is a pure comparative negligence state. What that means is that in New York you can still sue if you were involved in an accident that you also caused with your own negligence. You can even be 99% at fault for causing an accident that you were injured in and still have a claim against the other party for their 1% of fault.

Of course, this doesn’t mean that you always have a great case when you were mostly at fault for causing an accident. It all depends on the facts. If your damages are large enough, then you may still have a good case although you were partially at fault for causing your own injuries with your comparative negligence.

For example, let’s say there is a car accident at an intersection. Driver One, who was heading north and was speeding, enters an intersection at a high velocity while the light was green. Driver Two, who was heading south on the same road as Driver One, also has the green light and decides to make a left turn to head west. He enters the intersection and begins to cross the northbound lanes to make his left turn at the same time that Driver One enters the intersection to keep heading straight. Driver Two was not speeding and looked to see if there was any oncoming traffic before he entered the intersection. He saw Driver One’s vehicle but since it was far away, he estimated that he would make it across the northbound lanes in time to avoid Driver One. Driver One saw Driver Two’s vehicle start turning left to get ready to make a left turn but she thought that Driver Two was not going to enter the intersection until it was clear.

Driver One is seriously injured in the accident. She suffered several herniated discs throughout her spine due to the trauma and her injuries require surgery. Driver Two is also injured and suffers whiplash, but quicky recovers from his injuries. Driver One wants to sue Driver Two for his negligence in failing to yield the right of way to oncoming traffic. However, she is worried that she does not have a case because she was speeding. If she had not been speeding, Driver Two would have had enough time to make his left turn. However, if Driver Two would have waited for Driver One to pass the intersection before making the left turn, the accident also would have also been avoided. The drivers are both 50% at fault for causing the car accident.

Driver One can still sue Driver Two because her damages will likely be very high due to her serious spinal injuries. She has a good case even though she was also negligent. However, her damages will be reduced by her percentage of fault. So, let’s say the jury awards her $1,000,000 in total damages but finds her to be 50% at fault for causing the accident, then her award would be reduced to $500,000.

The post Pure Comparative Negligence appeared first on Queens Attorney Emiliano Perez.

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An event data record (EDR), also known as a vehicle’s black box, is a device installed in most vehicles that record technical information about the vehicle and the occupants for a brief period of time before, during, and after a crash. For example, the EDR will record a vehicle’s speed, engine RPM, and certain driver input such as brake application, steering wheel angle, and throttle position right before a crash. It will also record information during the crash such as the delta-v, also known as the change in velocity, airbag deployment, and seatbelt usage. Lastly, it will also record certain post-crash events such as secondary impacts, fires, and whether the Advanced Automatic Collision Notification was activated. The Advanced Automatic Collision Notification automatically notifies emergency services of the crash along with crucial information such as the severity of the impact, the number of occupants in the vehicle, and if the airbags were deployed.

The data from a vehicle’s black box can be crucial in a car accident case. It will give us details about what the driver did right before the impact which can help prove if the driver was negligent or not. It will also tell us how severe the impact was.

One of the most important data that the EDR will record is the delta-v, or change in velocity. This is not the change in speed of the vehicle. Speed and velocity are two different measurements of motion. Speed is simply the rate an object covers distance. Velocity, on the other hand, measures the rate an object changes its position, either in the same direction or in a different direction. So, speed equals the distance traveled divided by the time taken to travel the distance. Velocity equals the change of the position divided by the time taken to change position. In simple terms, speed is how fast an object is going and velocity is how fast an object is going in a certain direction. If an objection changes speed, direction, or both, there is a change in the velocity. The delta-v of a car involved in a crash will tell us how severe the impact was because it tells us how its motion changed in terms of both speed and direction.

All this information will assist an accident reconstruct expert tell the story of happened before, during, and after a crash. An accident reconstruction expert will be able to determine the speeds and directions of the vehicles before, during, and after the crash. With this information, the expert will be able to recreate the series of events for the jury. Basically, the expert will create a reenactment of the accident. Furthermore, an accident reconstruction expert will assist a biomechanical engineer by providing them with reliable data regarding the speeds and directions of the vehicles involved in the accident so the biomechanical engineer can than evaluate how the impact may have affected an injured person’s body.

In conclusion, the EDR data of a vehicle can make or break a case. It is a useful and decisive tool to measure the severity of the impact, reconstruct the accident, and evaluate how the impact caused or didn’t cause an injury.

The post EDR- What is an Event Data Recorder and What Do They Tell Us 91Ó°ÊÓ a Car Accident? appeared first on Queens Attorney Emiliano Perez.