Establishing a Private Right of Action in Personal Injury Cases

Navigating through statutes and legislative history to successfully plead a viable private right of action in a personal injury or wrongful death case can be time-consuming and ultimately disappointing. But the ability to recover enhanced damages or even any damages at all through a private right of action may make such efforts worthwhile and explains why there are a multitude of recent judicial decisions on this topic in many areas of law.

A private right of action allows a private plaintiff, in contrast to a government or a public agency, to bring an action seeking judicial relief from injuries caused by another’s violation of a legal requirement such as a statute. Unless a law confers a private right of action, a cause of action brought by a private plaintiff based upon that law will be subject to dismissal pursuant to CPLR §3211(a)(7) for failing to state a cause of action.

Possessing a valid private right of action can be highly valuable to a plaintiff because recovery of damages might be had where none would otherwise be and because statutes establishing private right of actions often provide for recovery of compensatory damages and additional damages, such as punitive damages and attorney fees.

The establishment of a private right of action can be express or implied. A statute can confer within itself an express private right of action to enforce its own provisions or can confer one to a completely separate law. An example of the latter is the Dram Shop Act (General Obligations Law §§11-100 and 11-101) which creates a cause of action for certain delineated violations of Alcoholic Beverage Control Law §65(1), a statute that does not itself create a private cause of action. Heins v. Vanbourgondien, 2020 NY Slip Op 01334 (2d Dept. Feb. 26, 2020); Sherman by Sherman v. Robinson by Robinson, 80 N.Y.2d 483, 487 (1992).

By Ira S. Slavit [Law]