B. Common Law Theories

• Jurisdiction: New York

B. Common Law Theories

1. Negligence

Negligence is the most prevalent common law theory of recovery for injured clients. Negligence is the absence of care according to the circumstances,⁸⁶ or the failure to do what a reasonably prudent person would have done under the same circumstances.⁸⁷

To establish a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty on the defendant's part as to the plaintiff, a breach of that duty, and injury to the plaintiff as a result of that breach.⁸⁸

The risk of danger reasonably perceived defines the duty to be obeyed.⁸⁹

Negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A person is responsible only for the results of his or her conduct if the risk of injury is reasonably foreseeable. The exact occurrence or exact injury does not have to be foreseeable; but injury as a result of negligent conduct must be not merely possible, but probable.⁹⁰

The plaintiff also must prove that the defendant's negligence was a substantial factor in the plaintiff's injuries. In other words, the central question for proximate cause determinations is whether the negligence alleged in fact was a cause of the claimed injuries.⁹¹ Additionally, an accident that produces injury by precipitating the development of a latent condition or by aggravating a preexisting condition is a cause of that precipitated or aggravated injury.⁹² Finally, the plaintiff must have suffered damages.⁹³

2. Comparative Negligence and Assumption of Risk

The Court of Appeals has explained the distinction between the doctrines of comparative negligence and assumption of risk. In Trupia v. Lake George Central School District,⁹⁴ a 12-year-old child suffered injury while sliding down a banister at a summer program run by the Lake George School District. The Second Department held that the defendant could not assert an affirmative defense that the child assumed the risk of the injury. That affirmative defense of primary assumption of risk could be interposed only in cases arising from risks inhering in athletic and recreational activities.

The Court of Appeals affirmed.⁹⁵ The implied assumption of risk doctrine had often operated to completely dismiss a plaintiff's claim. This did not sit comfortably with the doctrine of comparative negligence embodied in CPLR 1411. Therefore, the assumption of risk doctrine had to be "closely circumscribed" to prevent it from undermining or displacing the doctrine of comparative negligence. The Court of Appeals therefore held that the assumption of risk doctrine may only be asserted in the "context of pursuits both unusually risky and beneficial that the defendant has in some nonculpable way enabled."⁹⁶

The Court of Appeals, in Rodriguez v. City of New York,⁹⁷ held that a plaintiff need not demonstrate that she was free from comparative negligence to win summary judgment against a defendant on liability. The majority...