Personal Injury Definitions

Actual Notice is when the personal responsible for the dangerous condition that caused injuries to another was actually notified of the dangerous condition before the injury occurred.  By law, municipalities cannot be held liable for a dangerous condition unless actual notice was received in writing or it created the dangerous condition.

• Example : Ron was walking his dog and noticed giant potholes along the street.  Ron immediately sent the Town notice of the dangerous pothole condition.  Three months later, Judy was exiting her vehicle, stepped into a pothole and broke her ankle.  The Town can be held responsible for Judy’s injuries since Ron provided actual notice of the dangerous condition.

If you notice any dangerous conditions, please provide notice to the municipality (ex. Town), Utility Companies (ex. PSEG), or Private Owner (ex. Restaurants) in writing!  See Personal Injury Forms

An attempted battery (an unsuccessful try), or an intent to cause apprehension of an immediate battery by the a threatening gesture.

• Example : Hayley said to Anthony, “I will throw this brick through your car window unless you get out of the car.”  Hayley committed an assault on Anthony.

Defense asserting that plaintiff assumed a known risk of foreseeable harm.

• Example : Louis, 23 years old, is the goalie in a recreational men’s soccer league.  At one of the scheduled games, he was hit in the head by a soccer ball and suffered a fractured jaw.  Louis assumed the risk of such an injury by voluntarily engaging in the recreational soccer game

When a person intentionally causes harmful or offensive bodily contact with another.  An accidental touching or social touching is not a battery.  The intent required for a battery is the contact, not the intended or unintended harm that resulted.

• Example : Nicole threw a bottle at Ewan’s head, intending to hit him.  The bottle struck Ewan’s face, causing permanent blindness.  Nicole committed a battery against Ewan.
• Example : Joy knew that she had a sexually transmittable disease, but engaged in consensual sex with Ben.  Ben would have a battery claim against Joy because his consent was due to a mistake of a material aspect of the contact making it harmful and Joy was aware of Ben’s mistake.

An individual may recover no matter how great his or her apportioned share of fault.  His or her culpable conduct proportionately reduces his or her recoverable amount of damages.

• Example : Caren was traveling 75 miles per hour when she was abruptly cut off by Tony, causing an accident in which she sustained a neck injury.  Under the doctrine of pure comparative negligence, Susie’s award would be reduced by her proportionate share of negligence, because her own negligence contributed to the accident.

Separate negligent acts of more than one defendant combine to cause a single injury, resulting in liability for both defendants.

• Example : John was injured when he was a passenger in Mary’s car when she was speeding and collided with Carl’s truck, which went through a red light.

The owner of property has constructive notice of a dangerous condition on the property when that condition existed for a sufficient length of time prior to the accident such that he or she had time to discover and correct it.

• Example : The front mat in Lou’s Diner became folded up on itself, creating a tripping hazard, on Monday.  On Wednesday, Jack entered the diner to have lunch, tripped on the folded up mat, and broke his arm.  Lou’s Diner had constructive notice of the dangerous mat condition since it existed for a long enough period of time to allow someone to discover and fix it.

Third person personally or financially injured by an intoxicated person may sue the person who unlawfully provided liquor to the intoxicated person.

• Example : Good Times Pub served Joey, 19 years old, several beers.  Joey then got in his car and drove home, striking Susie.  Good Times Pub may also be held responsible for Susie’s injuries.

An injured person must prove that someone owed him or her a specific duty to to behave with the degree of care that a reasonably prudent person would have exercised in similar circumstances, not merely a general duty to act reasonably.

A duty is owed only to those who could (foreseeably) be injured as a result of his or her breach of duty,

Lack of experience / mental deficiency is not considered.

• Example :  A driver on a public roadway owes a duty to all other lawful users of the roadway to operate his or her vehicle in a reasonably prudent manner under the circumstances.
• Example :  A school owes a duty to the students to supervise them in a reasonable manner.

An Egg Shell Plaintiff refers to an individual who may have particular delicate physical condition, such as brittle bones, and may suffer a more serious injury even though the event causing the injuries would not normally result in such a serious ailment with a perfectly healthy individual.  The negligent party is still responsible for any injuries caused because he or she takes the individual as he or she finds him or her, delicate physical conditions and all.

• Example : An elderly man slipped on a spilled glass of water in a restaurant and broke his leg due to his pre-existing osteo

When a person is confronted with an unexpected or sudden occurrence not of his or her own making, leaving little room and no time to think, he or she will not be found negligent if his or her actions were reasonable under the emergency circumstances.

• Example :  Jackson was driving an ambulance with the lights and siren engaged when he sped through a red light, causing Amber to quickly brake her vehicle resulting in Brad striking the rear of Amber’s vehicle.  Jackson will not be help responsible for the injuries or Brad and Amber because he was engaged in an emergency.

Whenever a person intends to commit a battery, an assault, or false imprisonment, he or she is liable for any of these three torts to either the intended victim or others nearby, regardless of whether foreseeable, intended, or not.

• Example : Drew intended to frighten Sophia and threw a bottle at Sophia.  Sophia ducked and the bottle hit Nicholas.  Nicholas can sue Drew for battery because the assault resulted in harmful offensive contact.  Sophia may also sue Drew for assault.
• Example: Joseph attempted to punch Jamie because Jamie had insulted Joseph’s girlfriend. The punch missed, hitting Laura instead. Joseph is liable for Laura’s battery, even though the hit was accidental or negligent.

“But-For” defendant’s conduct, plaintiff’s injuries would not have occurred.

Generally, factual cause alone is insufficient and defendant’s negligent conduct must be a substantial factor in causing plaintiff’s injury, requiring a close causal connection between defendant’s conduct an plaintiff’s injury.

• Example : Mary would not have broken her ankle, but-for John running the red light and colliding with her vehicle.

False imprisonment, without probable cause, by someone asserting legal authority to do so.

• Example : Frank, a bird watcher, was stopped by a police officer for acting “suspicious.”  The police officer had a gun and a police dog.  The police officer demanded Frank’s drivers license, told him he was not free to leave, but refused give a reason for why Frank was being detained.

Intentional unprivileged confinement or restraint of another against his will for any period of time. The restraint may be a lock or a threat of immediate violence to the person or his or her property.

• Example : Natalie locked Mike in her basement for 6 hours.
• Example : Jeff locked Daisy, a sleeping infant, in the car for 4 hours, causing dehydration and heat exhaustion.

Foreseeability is defined as being reasonably anticipated. That is, the event / outcome followed someone’s conduct and should have been anticipated by him or her.

• Example : A driver that proceeds through an intersection disobeying a red traffic control light and striking another vehicle can reasonably foresee that another car traveling through that intersection with a green traffic control light in his or her favor would be struck and sustain injuries.
• Example : It is foreseeable that a visitor may slip and fall due to a pile of snow that was left to accumulate on someone’s porch.

Activity intentionally performed with a conscious indifference to known or obvious risks of harm to others; there is a greater risk taken than ordinary negligence.

• Example : Caleb was intoxicated and speeding down a crowded street when he struck and killed Katrina.  Caleb was grossly negligent under the circumstances.

When someone intends to inflict serious emotional distress on another or knew that it was substantially certain to happen and the victim suffered severe debilitating emotional harm.

Emotional harm includes all highly unpleasant mental reactions such as fright, horror, grief, shame, depression, loss of sleep, loss of sexual interest, and increased levels of anxiety.

• Example : Paula went to Dr. Al who advised her that she had herpes and a venereal disease.  When Paula returned home, Dr. Al called and said, “Haha it’s a joke.”

An event which occurs between the original improper action and the injury itself. If the intervening cause is foreseeable, then the causal chain is not broken and both improper actors may remain responsible for any injuries.

• Example : Mary exited her vehicle at night on a rural road to aid a calf that had escaped its enclosure from Carl’s farm, she was struck by John’s vehicle and died.  Both Carl and John were liable for Mary’s death, even though their negligent acts occurred separately from each other.

Negligence is the failure to exercise reasonable care that a reasonably prudent person would have exercised under similar circumstances, and that failure proximately caused a physical injury to another person who was foreseeably threatened by the unreasonable act or omission.

• Example : John failed to apply his brake when approaching the intersection, striking Mary’s vehicle and causing her to brake her arm.  John was negligent in the operation of his motor vehicle.
• Example : A school may be negligent when failing to adequately supervise a student with well-documented past violent behavior towards fellow students struck and injured another child.

Absent a valid excuse, the violation of a statutory standard of care is negligence per se, giving rise to a conclusive presumption of negligence that a jury must accept.

• Example : James came to a an intersection and made a left without stopping at the posted stop sign, striking Mary.  James was negligent per se because he violated Vehicle and Traffic Law §§  1141, 1142 and 1172 when he failed to stop at the stop sign and yield the right-of-way to Mary.

When an individual’s safety was threatened by the another’s negligent conduct, and a reasonable person would have been severely distressed by the negligent conduct, and the victim suffered a physical injury as well as an emotional harm.

Recovery is allowed solely for emotional injury negligently caused where there is no physical injury only when there are facts sufficient to guarantee the genuineness of the emotional trauma.

• Example : Paula went to Dr. Al who advised Paula that she had herpes and a venereal disease.  When Paula returned home, Dr. Al called and said “I’m sorry, I made a mistake.”
• Example : Glenn mistakenly told Deana that her son had died.

A Proximate Cause is a substantial factor of the events which produced the injury.

• Example : Abe runs a red light and hits Brad, which had a green light, causing injury to Brad.  Abe had a duty to not run the red light, and his actions in doing so directly (and therefore, proximately) caused injuries to Brad.
• Example : A distracted driver, Lucy, crashes into a truck carrying explosives, the explosives explode and kill the truck driver, Mike, Lucy’s distracted driving is a substantial factor in the accident.
• Example : A distracted driver, Lucy, crashes into a stop sign and, a tractor-trailer driver, Mike, attempts to avoid the site of the accident by turning left, swinging wide such that the portion of the truck strikes and kills a passing pedestrian, Lucy’s actions only incidentally affected the pedestrian’s death, but Mike’s swinging wide turn is a substantial factor in the pedestrian’s death.

Punitive Damages are awarded to punish the wrongdoer, not to compensate the injured party. Awarded where a wrongdoer intended to actually harm, or where wrongdoer was reckless or intentionally indifferent to the rights others.

• Example: Tim continued to manufacture trampolines for 3 years after he discovered they were defective and dangerous to consumers.  Robbie was using one of these trampolines and injured himself as a result of the defective condition.  Tim may be ordered to pay punitive damages in a products liability action.

Reckless Conduct a.k.a “Gross Negligence”

Activity intentionally performed with a conscious indifference to known or obvious risks of harm to others; there is a greater risk taken than ordinary negligence.

• Example : Caleb was intoxicated and speeding down a crowded street when he struck and killed Katrina.  Caleb was grossly negligent under the circumstances.

Res Ipsa Loquitur – “the thing speaks for itself”

The plaintiff can create a rebuttable presumption of negligence by proving that the injury would not have ordinarily occurred without negligence; the object that caused the harm was under the defendant’s control, and there are no other plausible explanations for the injury other than defendant’s negligence.

Permits, does not require, a jury to draw an inference, not a presumption, of negligence from circumstantial evidence in the absence of direct evidence.

• Example : Dr. Gordon left a seven-inch scissor inside Mrs. Gray during gallbladder surgery, and despite her chronic complaints about stomach pain over the years, the device was not found until an X-ray three months later, when it was removed.  Under res ipsa loquitur Dr. Gordon is liable for negligence.

Under Respondeat Superior, wrongful acts of an agent or employee are vicariously imputed to the employer, even if committed in disregard of employer’s instructions.

One must show that the employee’s wrongful acts were committed within the scope and in furtherance of the employer’s business.

The wrongful acts must be closely connected with what the employee was employed to do.

Employers are generally not liable for their employee’s intentional wrongful acts, unless the employer authorized the use of discretionary force or the wrongful act was motivated by and performed to assist or promote business interests of the employer.

When employee’s intentional wrongful acts arise purely from the employee’s personal motivation, the employer is not vicariously liable.

• Example : A delivery company may be sued when one of its drivers negligently operated a delivery vehicle, striking another vehicle while delivering merchandise, injuring the driver and/or passengers of that second vehicle.

The imposition of liability without a finding of fault.  One only needs to prove that the wrong occurred and that the defendant was responsible.  Situations considered to be inherently dangerous often utilize strict liability.

• Examples : Mick was repairing an HVAC unit at Lyndsey’s Supermarket when he fell 15 feet from an unsecured extension ladder. Mick was not provided with any fall safety equipment to protect him from injuring himself from such a fall.  Lyndsey, as the owner of the premises, would be strictly liable for Mick’s injuries under Labor Law § 240 and 241.

An individual’s injuries are caused by multiple improper acts occurring at different times.

• Example : John broke his hip when Mary collided into his vehicle while she was speeding.  Dr. Carl put the wrong size hip in John when he was repairing the damage caused by Mary.  Dr. Carl’s improper act is a foreseeable result of Mary’s conduct.  Therefore, Mary is responsible for the damages caused by the medical malpractice as well.

Bodily Injury Liability Coverage under a motor vehicle insurance policy to cover the liability of an insured spouse because of the death of or injury to his or her spouse, even where the injured spouse must prove the culpable conduct of the insured spouse.

Coverage that protects occupants of a vehicle when they are involved in an accident with a vehicle that has limited coverage, allowing the injured person to recover from their own insurance company above the underinsured motorist’s insurance policy limit.

• Example : Rob was struck by Anthony’s vehicle.  Rob broke his leg and required surgery.  Anthony’s insurance company offered Rob Anthony’s full insurance policy limit of $50,000.  Rob had supplemental underinsured coverage with his own insurance company for $150,000.  Rob recovered $100,000, the difference between the two policy limits, from his own insurance company.

Time sensitive applications and notifications must be sent to the appropriate companies to preserve your right to seek this coverage. See Personal Injury Forms

Coverage that protects occupants of a vehicle when they are involved in an accident with a vehicle that fled the scene or a vehicle with no insurance, allowing the injured person to recover from their own insurance company.

This coverage also protects pedestrians that are hit, any relative who lives in the household of the insured, or anyone named on the policy.

• Example : Alex was struck by Maria’s car while crossing the street.  Maria had no insurance at the time.  Alex was able to recover from his injuries from his own supplemental uninsured policy of $50,000.

Time-sensitive applications and notifications must be sent to the appropriate companies to preserve your right to seek this coverage. 

An act or omission giving rise to injury or harm to another; a civil wrong for which courts impose liability.

• Example : ABC Toy Co. made and sold defective products.
• Example : Fred disobeyed traffic laws, causing a motor vehicle collision.

A person who commits a civil wrong, either intentionally or through negligence.

• Example : Mark walked up to Scott and punched him in the face, fracturing his jaw.  Mark is a tortfeasor who committed a battery.

Transferred Intent a.k.a “Extended Liability”

Whenever a person intends to commit a battery, an assault, or false imprisonment, he or she is liable for any of these three torts to either the intended victim or others nearby, regardless of whether foreseeable, intended, or not.

• Example : Drew intended to frighten Sophia and threw a bottle at Sophia.  Sophia ducked and the bottle hit Nicholas.  Nicholas can sue Drew for battery because the assault resulted in harmful offensive contact.  Sophia may also sue Drew for assault.
• Example : Joseph attempted to punch Jamie because Jamie had insulted Joseph’s girlfriend. The punch missed, hitting Laura instead. Joseph is liable for Laura’s battery, even though the hit was accidental or negligent.

A civil action against someone who’s tortious injury caused someone’s death.

• Example : Rita ran a red light and struck Johnny’s car.  Phil, a passenger in Johnny’s car passed away due to injuries he sustained as a result of the crash.  Phil’s parents sued Rita for Phil’s wrongful death.
• Example : Hank was angry at Joe and threw a hammer at him.  The hammer missed Joe and struck Kate.  Kate died as a result of her injuries from the hammer.  Kate’s husband sued Hank for Kate’s wrongful death.