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New York Personal Injury Law Blog

Monday, October 10, 2016

Mediating Personal Injury Lawsuits

Personal injury cases run the gamut from slip-and-fall accidents to auto wrecks. Insurance companies are often involved, and most parties generally want to resolve cases as economically as possible. Mediation is one option to accomplish this.

Mediation is a form of alternate dispute resolution (ADR), in which the parties voluntarily agree to work with an independent third party – a mediator – to resolve their disputes. Unlike a court trial where one party is the “winner” and the other party is the “loser,” mediation involves finding a workable solution to which all parties can agree. A mediated settlement is formalized with a legally binding contract signed by all parties.

Mediation is a non-binding procedure, meaning that no party can be forced to consent to an agreement. The mediator does not have the decision-making authority that a jury, judge or arbitrator has. Even if the parties previously agreed to mediate their dispute, any party is free to walk away from the process and pursue the matter in the courts.

Mediation also affords the parties a level of confidentiality that is not available in court cases. Parties cannot be forced to disclose information. If a party opts to make admissions or disclose confidential information, those statements or information cannot be introduced in court or otherwise used outside the scope of the mediation itself. This confidentiality enables the parties to freely and productively negotiate their dispute.

Unlike court trials or arbitration hearings, which are determined based on the underlying facts of the incident and the applicable laws, mediation allows parties to make agreements based on their own interests. The parties are free to allow their choices to be guided by business interests or personal preferences. When the dialogue within a mediation is focused on each party’s true interests, a mutually satisfying result is often possible.

Parties to a personal injury dispute often choose to mediate the case to avoid a trial involving significant attorney’s fees and other costs and an uncertain outcome. When both sides are faced with uncertainties regarding the outcome, a mediated settlement agreement can be a good solution. Furthermore, taking a case to trial can take months or years and usually results in at least one party being unhappy with the outcome.

In mediating a personal injury case, the parties and their lawyers work with the mediator to devise a settlement that everyone can live with. Plaintiffs can be compensated for their property damage, medical costs, lost income, and pain and suffering. On the other hand, defendants and their insurance companies can end up paying far less than it would have spent in legal fees and costs to defend the case at trial, and a potential sizable jury award. A good mediator will help all parties see the strengths and weaknesses in their respective cases, enabling them to compromise and arrive at a result which is acceptable to both.


Monday, September 26, 2016

Good Samaritan Laws: Should I help a stranger in need of medical attention?

Sometimes, individuals are in need of urgent medical attention. There aren’t always trained professionals around to help. Ordinary citizens who see someone in distress could be afraid to help, for fear that they may be held liable for doing something wrong. Good Samaritan laws originated to avoid that scenario.

As a result, many states have enacted “Good Samaritan” laws that protect people who come to the assistance of others from legal responsibility.  Good Samaritan laws in general provide that a person who sees another person in imminent danger, and tries to rescue the injured party, can’t be charged with negligence if the rescue attempt does not go well.

Good Samaritan laws are intended to encourage people to assist others by removing the fear of legal responsibility for damage done by the rescue attempt. For example, a Good Samaritan may see an overturned car beside the road, and discover the driver is trapped. If the Good Samaritan pulls the trapped driver out of the car, he or she may exacerbate the driver’s injuries. If the driver suffers a spinal injury while being pulled out of the car, he or she cannot later sue the Good Samaritan for negligence under the Good Samaritan law of his or her state.

In general, in order to use the Good Samaritan law as a defense to negligence, there are four elements that must be met. First, any assistance provided must be given as a result of an emergency. Second, the emergency that necessitated the care can’t be caused by the Good Samaritan. Third, the emergency services provided by the Good Samaritan can’t be given in a grossly negligent manner. Finally, if it’s possible to obtain permission from the accident victim, the victim must have given permission for the rescue. This may involve calming the person down before asking if he or she needs assistance. One extra requirement in some states is that the aid rendered must be free – if a doctor renders aid and sends a victim a bill later, the doctor could lose protection under the Good Samaritan law.

Currently, all 50 states plus the District of Columbia have some form of Good Samaritan law. There are many variations on the laws from state to state. Some states have different standards for emergency first responders, and some Good Samaritan laws limit who can provide medical assistance to someone in need. Also, most states providing Good Samaritan protections require that the medical care take place outside a hospital or other medical facility – so if a person goes into distress inside a hospital, and a professional renders aid, that person can be held liable if the aid is rendered negligently.

Another type of Good Samaritan law actually requires people to call 911 in some situations - usually if you cause an accident and someone is hurt, or if you happen upon an accident. For example, Vermont has a law that says if an individual sees someone who needs help, that person must call 911 or could face prosecution. This type of Good Samaritan law is not as common, but it’s important to be aware of your state’s requirements for mandatory assistance.
 


Monday, September 19, 2016

The Pros and Cons of Settling a Case

If you have been injured by the negligent actions of another, you may be entitled to compensation for your medical expenses, physical and emotional pain and suffering, permanent physical impairment or disfigurement, lost income, decreased earning capacity, property damage, or other economic losses. Deciding whether to settle a personal injury lawsuit without taking the case to trial is a major decision demanding the full consideration of many factors.

Some plaintiffs wish to settle the matter quickly, while others want to let a judge or jury determine whether damages should be awarded and how much. There are advantages and disadvantages to each option; only you can decide what is best for your specific situation but an attorney can help you put the pros and cons of each option into perspective.

The vast majority of personal injury lawsuits never see a courtroom, evidence that the benefits of early settlement are compelling to a great number of injury victims. Settling a case is often more advantageous to the injured party, rather than taking the case to trial.If you have received a settlement offer from the defendant or the defendant’s insurance company, you should review the offer with your attorney as soon as possible.

Settlement agreements have many advantages. Settling your case is much quicker than taking your case to trial, which can take up to a year – or more, depending on the jurisdiction and the complexity of the case. You can receive the money, or at least a portion of it, immediately so you can pay off your medical bills and repair property damage. Your attorneys’ fees and other legal costs are greatly reduced by avoiding protracted discovery and the trial itself. Additionally, the emotional benefits are undeniable. You have the peace of mind of knowing exactly how much money you will receive, and you can get emotional closure right away so you can move on. Finally, settlement agreements can remain confidential, whereas court proceedings are public records.

On the other hand, there are tradeoffs. In exchange for the benefits stated above, you will typically have to accept a smaller monetary award than you might get if the case goes before a judge or jury.

Taking your case to trial, letting the court decide the outcome, also has its advantages and disadvantages. If you go to trial and win, you may feel a sense of emotional satisfaction having prevailed in the lawsuit. And, as noted above, you may be awarded a much higher amount than what was offered in the settlement negotiations.

However, there is never any guarantee that you will win your case at trial, or that the amount awarded will be more than what you could have settled the case for. The value of any settlement offer or potential court verdict must be weighed against the increased costs of dragging the case out for many more months before a trial can take place. In considering your options, an experienced personal injury lawyer can provide you with a realistic assessment of whether a settlement offer is fair, and the likelihood of winning a greater award at trial.


Monday, September 5, 2016

Medical Malpractice

There are always certain elements that need to be demonstrated in order to bring a successful malpractice action. For example, the treating doctor must have had a legal obligation to provide this medical care to this particular patient and there must have been a "breach," that is, an intentional or unintentional infraction or violation of the law. A breach usually occurs when the doctor fails to follow the “standards of the profession.” 

Medical malpractice is a tort (civil wrong) that may fall under a “negligence” action.  Negligence by a medical professional typically occurs when he or she neglects to protect a patient “from a foreseeable risk of harm.”  In order for malpractice to be proved, the doctor’s breach must be the actual and immediate, or precipitating, cause of the patient's injury. In addition, there must be damages for a court to remedy.  All of the above elements must be present in order to bring a valid cause of action within the state’s statute of limitations. The patient's attorney has the burden of proving each element of the case. 

Typically, the doctor owes the patient a “duty of reasonable professional care” during the course of treatment. To prove this standard, an expert witness will likely be required to testify before the court.  Furthermore, to facilitate the discovery process, multiple documents may be requested for review, such as medical and billing records. Witnesses, the patient, and experts in the field may also be interrogated. Depositions may also be used to gather and analyze other pertinent facts. 

Monetary compensation for medical costs and pain and suffering are usually provided for in these cases, but punitive damages, designed to discourage similar behavior, are rarely awarded. The patient's attorney may be able to negotiate a settlement with the doctor in an attempt to avoid the risks of a jury trial.  Such a settlement is often in the best interest of the patient since litigating a medical malpractice action can be extremely expensive.  Any settlement negotiations may involve the doctor’s insurance representatives. 

In many cases, medical malpractice attorneys will take cases on a contingency basis, meaning they only get paid if the claim is settled. If a malpractice case is lost, it can still be appealed. Though medical malpractice cases are typically filed in state court, a medical malpractice attorney may advise that a particular suit be filed and litigated elsewhere.


Monday, August 29, 2016

What is the effect of signing a liability waiver before engaging in an activity?

Before engaging in organized physical activities or sports, participants are almost always required to sign a waiver of liability for insurance purposes. Unfortunately, most of these documents use language that is unclear to the layperson. Frequently, people do not read what they sign; others read the words, but do not understand the content. Almost invariably, regardless of comprehension difficulties, individuals sign such waivers since they are a condition of participation. 

The content of liability waivers varies. The most common liability waivers are assumption of risk waivers. These state that the participant understands the inherent risks in the activity. By signing an assumption of risk waiver, for example, the participant acknowledges that he or she cannot sue the organizer of a football game for injuries incurred during the normal course of the game.

Another common liability waiver uses language about negligence or gross negligence. This covers the organizer of the activity for accidents caused by the organizer’s mistakes. A party acts negligently if he or she fails to observe a standard of care that a reasonable person would follow in similar circumstances. An example of negligence would be the failure to properly secure a harness to a person engaging in rock climbing. Waivers of this type are difficult to enforce. If the language of the waiver is difficult to understand, the waiver will usually fail a challenge in court.  

A waiver of gross negligence is unenforceable in most of the states in the U.S. Gross negligence occurs when the organizer fails to observe safety measures that even a careless party would normally follow. If the organizer of a dangerous activity fails to provide any safety equipment at all, this is an example of gross negligence. In spite of the fact that waivers under such circumstances will probably not be enforced, certain companies continue to require that they be signed by participants. 

If a waiver is required to participate in an activity, there is no reason it should not be signed, but there is every reason for the participant to understand what he or she is signing. Individuals should always be aware of the consequences of executing a legal document before signing it. If an injury occurs after a waiver has been signed, only a knowledgeable attorney can advise the client whether the waiver is likely to be enforceable.  


Monday, August 15, 2016

How is workers' compensation different from personal injury?

The primary difference between a workers' compensation claim and a personal injury claim is that a personal injury claim is based on fault, while a workers' compensation case is not. Any injury that occurs to an employee at his/her workplace is covered by workers' compensation, regardless of any negligence or lack of it.

In order to recover damages against another person in a vehicular accident or slip and fall, on the other hand, one must be able to prove some type of negligence on the part of the other person. In other words, the other party must be in some way to blame for the accident. Examples in the cases mentioned would be reckless or drunk driving or poor property maintenance resulting in a floor surface that is irregular or slippery.

In Workers' Compensation Cases, Fault-Finding Is Not Necessary

With very few exceptions, employees who are injured on the job are entitled to workers' compensation benefits regardless of fault. Employees need not prove any negligence on the part of their employers in order to file for and receive workers' compensation benefits. As a matter of fact, employees are eligible to receive workers' comp benefits even if the employee's own negligence resulted in the injuries.

Differences in Damages in Workers' Comp Cases and Other Personal Injury Cases

If it seems that the nature of workers' compensation, in which you can be reimbursed at times for your own clumsiness, is too good to be true, it is. This is because, while workers' comp will pay you compensation for your medical bills, any necessary vocational rehabilitation, lost earning capability or permanent impairment, it will not pay for your personal suffering.  The cap on workers' comp benefits, therefore, is much lower than the typical personal injury settlement once blame is assigned.

When you file a personal injury lawsuit, you may be entitled to compensation for enduring pain and suffering, loss of enjoyment of life (hedonic damages), even damage to clothing or jewelry during the accident. In cases in which you can file for workers' comp, however, you have foregone the right to sue your employer or co-workers for negligence and also the right to collect damages for pain and suffering.

Are Any Workers Legally Permitted to Sue Their Employers?

Yes, there are two categories of employees who are allowed to sue their employers when they are injured on the job: crewmembers of ships or boats and interstate railroad workers. Although these two classes of workers are not entitled to workers' comp, they are allowed to sue their employers under the Jones Act, for ship employees, or the Federal Employers Liability Act (FELA), for interstate railroad workers. It should be noted that workers on commuter trains may not qualify for FELA. Employees who work on ships or railroads should be sure to contact an attorney familiar with pertinent laws before filing for compensation.


Monday, August 8, 2016

If an intruder gets hurt on my property, am I liable?

A landowner owes a duty of care to everyone who enters his or her property, regardless of whether that person is a trespasser, a licensee, or an invitee. This article is a discussion of the standard of care a homeowner must take for a person who has no permission to be on his or her property. It may not seem intuitive, but a person can be held responsible for injuries suffered by an intruder.

A homeowner is not permitted to set up dangerous traps for an intruder. A spring loaded gun set to fire on an intruder who opens a door is an example of such a trap. Burying landmines in the front lawn can lead to serious liability issues. Although these are extreme examples, any sort of trap set to purposely injure a potential trespasser is not permitted. The legal system does not tolerate violent self help as a means of protecting one’s land from criminal activity.

In some situations a homeowner may have a duty to warn a trespasser of potentially dangerous conditions. If a large hole exists on a property that is not obvious to a passerby, it may be a good idea to put up a sign letting people know of the hole’s existence. A sign in a window reading “beware of dog” can protect a landowner from liability if that dog mauls an intruder. It can also act as a deterrent, keeping would be thieves looking for another house to rob.

The most common way a homeowner is responsible for an intruder’s injuries is if their home contains an attractive nuisance. This is a potentially dangerous condition that may seem particularly inviting to trespassers. Trampolines, swimming pools, and swing sets can attract children onto a person’s property without invitation. Landowners must be aware that children who get hurt while playing on their property can sue for their injuries, even if they never had permission to be on the property. Even an empty pool can attract skateboarders participating in an inherently dangerous activity, creating liability for a homeowner. The best way to protect oneself from this liability is to build a tall fence to make it impossible for small children to trespass and to make it clear to older children that their presence is unwelcome.


Monday, July 25, 2016

I wasn’t wearing my seatbelt. Can I still sue?

It is well accepted that wearing a seatbelt greatly reduces the risk of injury in an automobile accident. It is designed to keep a car’s occupant from being thrown around the passenger compartment or even ejected from the vehicle. It is significantly more dangerous to ride in an automobile without wearing one. That is why all cars are required to have them installed and almost every state has passed a law requiring drivers and passengers to wear their seatbelts. The answer to whether a person who fails to observe these laws can still collect money for injuries by filing a lawsuit depends entirely on the state.

In some jurisdictions, if an individual is not wearing a seatbelt, he or she may be barred from recovering any compensation for his or her injuries. These states are Alabama, Maryland, North Carolina, Virginia, South Dakota, and Washington DC. This is called contributory negligence.

In other states, a different system is used. A jury must determine what percentage of a plaintiff’s injuries were caused by the plaintiff’s failure to wear a seatbelt. The court will then reduce the award by that percentage. The states that follow this system are Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, and Washington. This system is known as comparative negligence.

All other states use a hybrid system to determine whether or not a person can recover in a car accident when he or she was not wearing a seatbelt. If more than half of that individual’s injuries were caused by his or her failure to wear a seatbelt, he or she may not collect damages in court.

Even though the law varies from state to state, in every state, failure to wear a seatbelt can significantly reduce, or even completely bar, a person’s ability to recover damages and be made whole after a traffic accident. The law is meant to compensate a person for what he or she has lost through no fault of his or her own. The law says that failure to wear a seatbelt places some of that fault on the victim in a car accident.


Monday, July 18, 2016

What is the burden of proof in a personal injury case?

“Burden of proof” refers to the requirement that a plaintiff must demonstrate to prevail in a lawsuit. In a criminal case, the burden of proof is “beyond a reasonable doubt,” meaning that the prosecutor must prove that a defendant is guilty to a degree that a reasonable person would not hesitate to think he or she committed the crime.

 In any civil case, however, the burden of proof is much easier to meet. In a personal injury lawsuit, the plaintiff must prove the facts in his or her favor by a preponderance of the evidence. This means that if the weight of the evidence is on one side, that side wins the case. It is a simple comparison. This is the reason why a person could be found not guilty of committing a crime, but still be held financially responsible for that crime. There are well known examples of cases in which those accused of murder won an acquittal in criminal court. When the victim’s families filed civil suits for wrongful death, however, the defendants were found liable. Even though the evidence presented in the criminal trials did not prove the defendants' guilt beyond a reasonable doubt, the preponderance of the evidence in the civil cases proved sufficient.

In every case, there are different elements that all must be proven by a preponderance of the evidence. For example, in a case for which a plaintiff claims that someone else’s negligence caused them an injury, that plaintiff must prove four separate elements. First, he or she must show that the defendant owed a duty to the plaintiff, second, that the duty was breached, third, that the plaintiff suffered an injury, and finally, that the defendant’s breach was the proximate cause of his or her injury. When there is a motor vehicle accident, the defendant’s duty is to follow the rules of the road and to drive safely. It is breached when the defendant fails to do so. A plaintiff also has to prove that he or she suffered real injuries and that those injuries are the result of the car accident. Without having proved all the elements of the case by a preponderance of the evidence, a jury will find against a plaintiff.


Monday, July 11, 2016

What is the difference between contributory negligence and comparative negligence?

Contributory negligence and comparative negligence are two different systems that courts use to determine whether or not a plaintiff can collect for his or her injuries through a lawsuit. When an injury occurs, the cause of the injury is often the result of the actions of multiple people, including the individual who was injured. If the plaintiff is responsible for a part of his or her own injuries, it can limit how much he or she may collect, or preclude the plaintiff from collecting anything at all.

In a jurisdiction that has adopted a pure contributory negligence system, a Plaintiff is not allowed to collect if he or she is even 1% at fault for the accident. For example, if a pedestrian is crossing the street and is hit by a speeding car, the pedestrian will not win a lawsuit for the injuries suffered if he or she failed to look both ways before crossing the street, or if he or she did not cross in a designated crosswalk. Some jurisdictions raise the threshold for acceptable fault on the part of the plaintiff.

Comparative negligence provides that the total amount he or she might receive in compensation for his or her injuries will be reduced by the percentage for which that person is responsible for his or her own injuries. Under this framework, a person who is 90% at fault in a car accident can still sue for any injuries he or she suffered, but can only recover 10% of those injuries.

Many states in the US utilize a hybrid between these two systems. Under a hybrid system, if a person is responsible for more than half of his or her own injuries, he or she will not be awarded any damages at all. That person’s total award can still be reduced by the percentage a jury attributes to the plaintiff’s own actions. Some states use different systems for different types of injuries. For example, in Indiana, medical malpractice claims are subject to analysis under contributory negligence, but car accidents use comparative negligence. This confusing structure makes it all the more important to ensure that a person hires a competent attorney to help collect on damages.


Monday, June 27, 2016

Suing for Injuries Sustained while Playing Sports

Any sports can be dangerous for participants. It does not matter what the sport is, there is always the chance of injury when engaging in physical activity. The chances of injury go up significantly when the sport being played is a contact sport, like football, but injuries are a part of every sport, including baseball, soccer, and basketball. Even golfers can suffer serious injuries.

Generally, a participant in a sport assumes the risk of normal injuries during play. If a concussion or spinal injury is suffered as a result of being tackled in a game of football, he or she will be responsible for his or her own medical bills. Similarly, a basketball player cannot sue for an injury sustained when landing awkwardly after a shot. However, if an injury is caused by a condition not within the scope of a participant’s consent, the loss from that injury can be recovered. A person who consents to play basketball, for example, can sue another participant for starting a physical fight because the person who started the fight was acting improperly. Similarly, a soccer player may be able to file a claim if the injury in question was caused by shoddy conditions on the field.

Individuals wishing to take part in organized leagues will often be asked to sign documents acknowledging their willful participation in the activity. These documents may include waivers of liability. It is important to read these documents carefully. If a waiver of liability is included, participants should make sure that the field of play is well-maintained before engaging in physical activity there. These waivers are not always enforceable. Each state has its own rules about how liability waivers are treated by the courts.

In pickup games with friends, even though there is no waiver of liability signed, there is still an understanding of consent to play the game. Any incidental contact as a result of the sport cannot give rise to a lawsuit. For this reason, it is important that players  go over the extent of acceptable contact before participating.  It is also, for the reasons noted above, important to examine the field of play for any potentially dangerous conditions.


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