Personal Injury

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Legally enforceable duties arise when the relationship between the parties is such that, in the absence of enforcing a standard of care, the risk of harm will unfairly burden the foreseeably injured party. What standard applies in any circumstance is a sliding scale: on one end, ultrahazardous and similar activities prompt strict liability where the actor is obligated to prevent and effectively insure against loss; on the other, actors are performing public functions with broad discretion and qualified immunity. In defining what legal obligations are owed, by whom, and when, the courts look to common law, statutes, and sometimes other rules and regulations to either interpret an applicable statute or provide a standard of care. The rules of the road are one example; construction site safety standards are another.  In most common circumstances, the standard is reasonable care. The “reasonable person” has been referred to as the mythological hero of the law.

Whether a duty exists and the scope of that duty is generally a question of law for the court; whether a defendant breached that duty is a factual question, requiring a jury if needed.  One of the interesting things about personal injury law is that that, over time, a body of law has developed related to commonly recurring fact patterns. Reasonable drivers see what there is to see and maintain appropriate space in front of them; reasonable land-owners shovel and salt walkways once there is no longer a storm in progress and appropriately address hazards once on notice of them. Malpractice cases are judged by the standard of a reasonable physician, attorney, accountant, or other profession.   

There needs to be a sufficient connection, referred to as proximate cause, between the negligence and one or more categories of compensable damages. Sometimes, causation can be complicated by the need to parse out possible alternative, contributing, intervening, or superseding causes; sometimes, it’s about examining whether a particular injury is too attenuated from the foreseeable hazards that made the defendant’s action or inaction negligent. Interesting causation issues arise in cases such as toxic exposure or pharmaceutical related injuries, or in novel fact patterns such as a Long Island Railroad worker in Queens bumping into someone and causing them to drop a nondescript package containing fireworks which then ignite and injure someone at a distance (and lead to a case that gets discussed during the first year of law school for the next hundred years).  

 To evaluate damages, whether for settlement purposes or to confidently assess what should be demanded at trial, we look at prior comparable cases. Some types of personal injuries are sufficiently recurrent in the same venues that you can get a well defined range for a particular fact pattern, while others have limited or more varied precedent. There are private databases that track verdicts and settlements, and published decisions where courts address parties challenging jury verdicts as excessive or deficient. Factors include the nature of the injury or injuries, age and years of future pain and suffering, extent of hospitalization or surgeries, near term prognosis, and long term prognosis. Physical pain and suffering is different than emotional distress, which can range from mere annoyance, to garden variety, to more severe cases involving exceptional circumstance or professional treatment.