New York Burn Injury Law


In New York, to recover for negligence, a plaintiff must first establish that the defendant owed the plaintiff a cognizable duty to exercise due care. Whether there is a duty owed and the extent of that duty depends on the relationship between the plaintiff and the defendant. Upon establishing that the defendant owed the plaintiff a duty, the plaintiff then must prove that the defendant breached the duty owed, the defendant’s breach of duty was the proximate cause of injury to the plaintiff and the plaintiff suffered damages as a result.

Pure Comparative Negligence

Per N.Y. C.P.L.R. Sec. 1411, New York follows a pure comparative negligence standard in negligence actions. Pure comparative negligence means a plaintiff is able to recover from a defendant whose negligence contributed to his injuries, even if if a trier of fact deems that the plaintiff contributed to his own injuries. A plaintiff’s contributory negligence does not bar his recovery altogether, but does serve to reduce his damages in proportion to his apportioned fault. Thus, while the doctrine of comparative fault considers the plaintiff’s negligence when determining the liability arising from an injury, it abandons the all-or-nothing approach of contributory negligence.

For example, if a court finds that a plaintiff’s negligence was even as high as 99% ,and a defendant’s fault was found to have been 1%, the plaintiff will still be able to recover 1% of the total damage award rendered.

Joint & Several Liability

Under New York law, where joint tortfeasors acted concurrently or in concert, joint and several liability is applied. This means that each tortfeasor is individually responsible for the entire amount of damages claimed by the plaintiff.

However, section 1601(1) of the N.Y. Civ. Prac L. & R, allows tortfeasors that are found to have been 50% or less responsible for a plaintiff’s injuries to be only severally liable. Thus, a tortfeasor that is 50% or less responsible will be liable only for damages proportional to his level of responsibility. This exception is inapplicable if a court finds that the tortfeasors acted with reckless disregard for the safety of others.

N.Y. Civ. Prac. L. & R. 1401-02 allows a tortfeasor that pays more than his fair share of the judgment to recover the excess amounts from the remaining joint tortfeasors.


Compensatory Damages

Compensatory damages are awarded in order to compensate the plaintiff for injuries suffered as a result of the negligence of the defendant(s). The award is meant to restore the plaintiff – as much as possible – to the condition they were in prior to the injury occurring.

Actual damages are meant to reimburse the plaintiff for out-of-pocket expenses for items such as medical expenses. General damages may also be awarded for pain and suffering, mental anguish, loss of opportunity, and loss of future income.

Punitive Damages

Punitive damages are meant to punish a defendant rather than to compensate the plaintiff. The New York Pattern Jury Instruction states that a jury must find the defendant’s misconduct involved malice, oppression, insult, wanton or reckless disregard of the plaintiff’s rights, or some form of egregious circumstances. An act is considered to be malicious when it is done deliberately with knowledge of the plaintiff’s right, and with the intent to interfere with those rights. An act is wanton and reckless when it demonstrates a conscious indifference and utter disregard of the effect upon the health, safety and rights of others.


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By offering the following information the lawyers at Walker Morgan are not offering legal advice or legal guidance. The lawyers at Walker Morgan are not licensed to practice law in New York. Should you have a question/concern specific to New York law, please contact an attorney licensed to practice law in the State of New York.