Who Has A Duty to Protect You From Injuries?    

 by Neil S. Siskind, Esq.

      The first thing to evaluate to determine if you have a potential lawsuit against someone that caused you harm is if you are injured to such a degree that compensation is warranted. If someone drops a piano on your foot but you have no pain or visible bruises, then you probably don’t have any reason for recourse. In order to have a claim, first ensure you have visible bruising which you document, a medical diagnosis, or pain or discomfort that has been documented. Another option is, if you have no pain or bruising, you could have a diagnosed likelihood of developing a problem of pain, illness or bodily disfigurement in the future as the result of your injury or medical mistake. So generally, this is the first thing to know before deciding to contact an attorney- what is the injury? 

          Once you feel strongly that you have an injury making it worthwhile to pursue financial recourse, contact an attorney.  Among many factors your attorney will have to analyze was whether the person or business causing your injury had a duty to look out for you. This can be a very expansive analysis and should be left to your attorney to decide. So, who has a duty to look out for you? Do you have to know the person or business that caused your injury? Does the person who caused the injury have to care about you? Does the person who caused your injury have to know you are in the area? The answer to all of those questions is generally “no, not necessarily”.  All people have a duty to all other people to act reasonably at all times- to act as a reasonable person would act under similar circumstances. So, for example, if a man is in a public park shooting ducks with a pellet gun, and a pellet bounces off of a rock and hits a child in the arm, then that child (or his parents on his behalf) may have the basis for a civil case against the man if the child has been injured (the state may have a criminal misdemeanor case against the man as well).  The man with the pellet gun had reason to believe (or should reasonably foresee) that a child would be in the park near the ducks. As such, it is his duty to act reasonably in a park where it is foreseeable that children could be. Notice, the man need not actually know that a child is present. But would a reasonable person think a child may be near? Is that foreseeable? If the answer is “yes”, then ask, would a reasonable person knowing a child may be near be shooting pellets at ducks? The answer is probably “no”. That would not be reasonable behavior. If this shooting was the cause of an injury, you may have a case. 

          Here is another hypothetical example: A storefront restaurant across from the train station in New York City washes its floors each morning. When doing so, the owner puts his rubber mat from the entrance-way onto the outside sidewalk to dry. A passerby on the way to work at 9 a.m. trips on the mat and twists her ankle.  So, did the owner have a duty to the passerby? Well, likely “yes”. It was foreseeable by the owner that there would be a passerby at rush hour. With this knowledge, a reasonable person would not lay a mat in the middle of the sidewalk. Thus, the owner may be liable to the woman who tripped and was injured. 

         Immediately upon injury make sure you have a witness to the event. It will be of great help in your lawsuit. If the injury is big enough or if you think someone caused your injury while behaving stupidly, such as the man in my pellet gun scenario, then call the police and document the event. It never hurts to call the police to document an injury, just make sure not to waste the police’s time. Make sure your injury is one worth seeking immediate medical help for (on that day or in the next day or so).