New York Tort Laws

Tort law, sometimes called “personal injury law,” deals with civil misdeeds, rather than criminal misdeeds. What is a tort? According to Cornell Law School, the word “tort” refers to any civil act or omission that causes injury or harm to another individual. In New York, a tort is defined as any wrongful action that results in harming another person, their property, or their reputation, provided it can potentially be remedied through legal recourse. Tort litigation provides plaintiffs the opportunity to seek remuneration for injuries and/or harm caused at the hands of another entity, whether the acts that led to their injuries and/or harm were caused intentionally or as a result of negligence. Breach of contract is not considered a tort under New York Statute. Here are a few examples of things that are regarded as torts:

• Assault

• Battery

• Breach of Fiduciary Duty

• Conversion of Property

• Deceptive Trade Practices

• Defamation

• Negligence

• Trespassing

New York tort laws cover a wide variety of civil wrongdoings. They can involve individuals, family members, joint tortfeasors, businesses, and the government. Below we’ll explore some of these laws. 

Proving Negligence

Personal injury laws stipulate that the burden of proof lies with the injured party. To recover damages, it is their lawyer’s responsibility to prove that the following four conditions have been met:

• Duty of Care: The defendant was legally responsible for acting with the same level of caution that any reasonable person in similar circumstances would use to avert causing foreseeable harm to others. For example, in the case of a wet floor, a grocery store would need to put out a sign alerting people of the potential for slipping.

• Breach of Standard of Care: The defendant knowingly breached a legal duty or failed to act with the same level of care that others in the same circumstances would use, thus failing to protect the plaintiff. Failure to put out a wet floor sign in the above example would constitute a breach of duty.

• Causation: The defendant’s negligence was responsible for causing the injury. 

• Damages: The plaintiff has incurred one or more legitimate types of damage as a result of the defendant’s negligence. 

In addition to the above, in certain types of lawsuits, such as medical malpractice suits, defendants may be required to prove that their injuries weren’t expected or foreseeable. For example, after any surgery, certain amounts of pain, suffering, and recovery time are expected. While uncomfortable and inconvenient, these would not be examples of malpractice, as they would have been anticipated prior to the surgery. As such, a plaintiff would be unlikely to receive compensation in a tort lawsuit for this type of pain and suffering.

Comparative Negligence

In some states, contributory negligence laws can deter plaintiffs from recovering damages in personal injury lawsuits if the plaintiff was partially responsible for their accident or injury. This type of law does not apply in New York. New York is considered a pure comparative negligence state. This means that even if the plaintiff bears some of the liability for their injuries, they can still be awarded damages in a lawsuit. Under the rule of pure comparative negligence, the amount of compensation a plaintiff may receive is directly determined by the amount of fault attributed to them in their accident. In other words, if a court of law determines that they are 95% responsible for their own injuries, they may still be awarded damages for the 5% they are not liable for. 

No Caps on Medical Malpractice Damages

Current statutes in the State of New York do not place a cap on damages that may be awarded to plaintiffs in medical malpractice lawsuits. New York is one of only 15 states that does not enforce caps for medical malpractice damages. 

Medical Indemnity Fund

In 2011 the former governor of New York, Andrew Cuomo, signed a law establishing a “Neurologically Impaired Infant Medical Indemnity Fund.” The fund, intending to lower the expenses associated with medical malpractice suits in New York, helps compensate plaintiffs for costs related to health care needs associated with their “birth-related neurological injuries.” The law basically ensures that children with brain damage, who have previously been awarded damages in court cases dealing with medical malpractice or negligence, will instead only receive compensation and care from a fund run by the government. Rather than allowing victims of malpractice or negligence to use the damages awarded to them in court as they deem appropriate, the government will determine how much they will receive and what it will be used for.  

Domestic Relations and Tort Law

There has been some question about whether or not a person filing for divorce in New York can file a separate tort case against their spouse for domestic violence and/or defamation. New York is a no-fault divorce state. This means that the person filing for divorce does not have to prove any wrongdoing on the part of the person they intend to divorce. According to WomensLaw.org, a person can file for a fault-based divorce in New York for cruel and inhumane treatment, which would effectively bring tort charges for physical, emotional, or verbal abuse into the divorce proceedings. 

New York Business Liability Insurance Requirements

According to the U.S. Small Business Administration, the federal government requires that every business with employees, whether full-time or part-time, carry workers’ compensation, disability, and unemployment insurance. These types of insurance provide business owners with protection from liability in relation to workplace injuries. They also ensure that employees will have coverage for medical expenses for work-related illness or injury, as well as access to disability benefits. General liability insurance is required for most commercial leases in New York. Liability insurance protects businesses from common third-party risks, including mass torts. Under the Affordable Care Act, businesses with 50 or more employees are also required to offer health insurance. The New York State Department of Financial Services also recommends that businesses carry property and casualty insurance to provide risk coverage for things like damaged or stolen property and lost income. Commercial insurance may typically be purchased through the state’s private insurance fund or private insurance carriers. Specific types of businesses may have other insurance requirements that are directly related to their industry.

How Much Can Someone Sue For an Injury in New York?

In New York, there are no caps on the amount of damages a plaintiff may claim in a personal injury lawsuit, however, depending on the types of damages being awarded, New York law may specify whether plaintiffs will receive their compensation in a lump sum or an annuity. There are three types of damages a tort victim may attempt to recover. Compensatory damages, also called actual damages, cover the losses a plaintiff has suffered. These cover economic losses, such as loss of income and medical expenses. They also cover non-economic losses, such as pain and suffering, mental anguish, and loss of future opportunities and income. Nominal damages are intended to compensate a victim for intentional acts that do not require proof of loss or injury and for which an insignificant amount of money is expected to be awarded. Punitive damages are sometimes awarded in addition to compensatory damages. They are intended to punish the defendant for wrongdoing and/or teach them a lesson. 

Sliding Scale for Medical Malpractice Attorney’s Fees

Recent tort reform in New York involves a statute limiting the amount that a medical malpractice lawyer may receive for representing you if they do so on a contingency fee basis. With contingency agreements, a lawyer agrees not to be paid if you don’t win your case. In New York, if you win your medical malpractice case, your attorney will receive compensation based on the amount of damages awarded to you and on a sliding scale. The breakdown of how much they are allowed to receive is as follows:

• 30% of the initial $250,000 awarded

• 25% of the next $250,000 awarded

• 20% of the next $500,000 awarded

• 15% of the next $250,000 awarded

• 10% of any amount awarded that exceeds $1,250,000

This statute has been found to be controversial. 

The Statute of Limitations in New York

The statute of limitations is a law that specifies the time frame within which a victim can file a lawsuit after an event has occurred. In New York, the statute of limitations varies depending on the type of lawsuit. Typically, for personal injury lawsuits, the statute of limitations will be three years from the date the injury occurred or from the date the cause and extent of the injury were discovered. Per the New York State Unified Court System, here are the statutes of limitations for several other acts that could potentially fall under tort law:

• Assault and/or Battery: 1 year from the date of the act

• Intentional Emotional Distress: 1 year

• Negligent Emotional Distress: 3 years

• False Imprisonment: 1 year

• Legal Malpractice: 3 years

• Medical Malpractice: 2.5 years (with provisions)

• Product Liability: 3 years

• Slip and Fall: 3 years

• Trespass: 3 years

New York’s Medical Malpractice Discovery Rule

New York state has a limited discovery rule for medical malpractice. This law gives plaintiffs more time to file their lawsuits past the standard statute of limitations if they could not have reasonably surmised that they had a legitimate medical malpractice situation. This rule only applies to two very specific circumstances in New York:

• If a patient believes their doctor(s) failed to diagnose their cancer correctly, they can file a claim within two and a half years. The deadline can start either when the patient finishes related treatment or when they become aware of the diagnostic mistake that caused harm. (It would begin on whichever of the two options comes later.) However, this extension may not go more than seven years past the date of the alleged negligent action. 

• If a foreign object, such as surgical equipment, is found to be residing in a patient’s body, a lawsuit for medical malpractice may be filed within one year of the date of discovery of the said foreign object. 

New York’s Statute of Limitations for Minors

The medical malpractice statute of limitations for minors begins on the patient’s eighteenth birthday, and they have three years to file their claim, so long as the alleged incident of malpractice occurred within the previous ten years. 

Legal Resources for Injured Folks in New York

According to the New York Department of Health, almost 8,000 New Yorkers die annually due to injuries. Injuries are also one of the leading causes of hospitalization for individuals across all age groups. Over 155,000 people are injured badly enough to require hospitalization each year in New York. Further, an additional 1.5 million individuals are treated in New York emergency departments annually. If you’ve been injured and are considering filing a claim, you’ll want to find a trustworthy and capable personal injury attorney in your area. They will be your best resource throughout the legal process. Before you speak with an attorney, check out this comprehensive guide on the recommended steps for hiring a personal injury attorney. 

Below you’ll find information about disability and temporary disability benefits and links to helpful sources for legal terminology and free online legal advice. 

Disability and Temporary Disability Benefits

Depending on several factors, such as the nature and severity of your injury, your age, your financial status, and whether or not you are able to work after the medical malpractice incident, you may be eligible for government-funded disability benefits that can help with finances while you await results of your malpractice lawsuit. 

If you meet the following requirements, you may qualify for SSDI benefits:

• You cannot work due to a medical condition expected to last at least a year or result in death.

• Your disability is not partial or short-term. 

• You meet the Social Security Administration’s definition of disability. 

• You are younger than your full retirement age. 

For SSI benefits, the following requirements must be met:

• For Adults:

  • Are age 65 and older, or blind, or have a disability.

  • Have limited income (wages, pensions, etc.).

  • Have limited resources (the things you own).

  • Are U.S. citizens, nationals of the U.S., and some noncitizens.

  • Reside in one of the 50 states, the District of Columbia or the Northern Mariana Islands. It does not include Puerto Rico, Guam, or the United States Virgin Islands. Exception: The children of military parent(s) assigned to permanent duty outside the U.S. and certain students temporarily abroad may receive SSI payments outside the U.S.

• For Children:

  • Are under age 18 and have physical or mental condition(s) that very seriously limit their daily activities for a period of 12 months or more or may be expected to result in death, and

  • Live in a household with limited income (benefits based on need) or resources.

To determine which of these benefits you may qualify for, you can reach the program at 1-800-772-1213 or go to https://ssabest.benefits.gov/benefit-finder/.

Find Free Online legal Advice

The American Bar Association Free Legal Answers is a virtual legal advice clinic that provides an online version of the walk-in clinic model. Users may request brief advice and counsel about a specific civil legal issue from a volunteer lawyer by posting their civil legal questions to their state’s website. Lawyers will follow up with basic legal advice and information without expecting long-term representation. This is a great resource for people seeking advice and information about non-criminal legal matters who cannot afford a lawyer.

You can contact the ABA through the ABA Service Center Hotline at (800) 285-2221 or email them at Service@americanbar.org, Monday - Friday, 9:00 AM - 6:00 PM ET.

Online Legal Dictionaries

• Wex is a free legal dictionary and encyclopedia sponsored and hosted by the Legal Information Institute at the Cornell Law School. The entries found here are collaboratively written and edited by legal experts and scholars. This resource is intended for use by a wide range of people, from students to lawyers to people with no legal knowledge whatsoever. 

For web accessibility help, they can be emailed at liiaccessibility@cornell.edu