Although an attorney may not discuss this issue with you outright, perhaps out of fear that it sounds too "legalistic," two of the central questions that must be confronted when evaluating a negligence case under New York law are:

  1. Whether the defendant owed the plaintiff any duty in the first instance; and,
  2. Whether the defendant breached (i.e., failed to fufill) that duty to the plaintiff.

"What does that mean?" you ask.

Fortunately, New York's courts have provided some guidance on what constitues a breach of duty:

"To sustain a cause of action alleging negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries" (Engelhart v. County of Orange, 16 AD3d 369 [2nd Dept.], leave to appeal denied, 5 NY3d 704 [2005]).

In the context of a defendant's liability for the work of an independent contractor, the Appellate Division, Second Judicial Department, in Mojica v. Gannett Co., Inc., 71 AD3d 963 [2010], recently stated as follows:

"Whether a duty of care is owed by one person to another is a question of law [citations omitted]. In general, an entity has no duty to control a third party's conduct so as to prevent injury to another unless special circumstances exist in which the entity has sufficient authority and control over the conduct of that third party [citation omitted]. Only then can a duty be imposed [citation omitted].

"One who hires an independent contractor is not liable for the independent contractor's negligent acts because the employer has no right to control the manner in which the work is to be done [citation omitted]. (71 AD3d at 965; see, Schindler v. Ahearn, 69 AD3d 837 [2010])."

Jonathan Cooper
Connect with me
Non-Compete, Trade Secret and School Negligence Lawyer