New York Personal Injury Law Blog

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.

Monday, June 20, 2016

Weight Lifting Injuries at the Gym: Who Is Liable?

Working out at a gym is usually good for your health, but not always. Perhaps you lifted more weight than you could handle. Or a piece of strength training equipment malfunctioned. Or the gym staff failed to instruct or spot you properly. Can you hold the gym owners or others liable for damages?

There have been many cases in which plaintiffs have successfully sued gyms, sports clubs, Pilates studios and other exercise facilities for their injuries. Even if the gym owners were not aware of an unsafe condition, they may be liable if proper inspection would have uncovered it. Sometimes you may also be able to bring a product liability lawsuit against companies and individuals responsible for the design, manufacture, sale or distribution of a potentially dangerous exercise machine or its components.

Equipment malfunctions are not the only basis for gym liability. You may be able to sue a gym for poor instruction or supervision. If an unqualified staff member imposed excessive demands, provided improper instruction or did not warn of potential risks, the gym itself could be liable for muscle injuries or other harm.

One hurdle to overcome is the liability waiver that most gym members must sign when they join, promising not to sue if they are injured at the gym. Some courts have upheld these waivers, but there are also occasions when lawsuits are allowed to proceed despite a signed waiver.

• Gross negligence. Short of intentional harm, "gross negligence" is a form of reckless disregard for safety. For example, if gym employees were informed repeatedly that a piece of weight lifting equipment was not working properly and continued to allow people to use it without fixing it, that might constitute gross negligence.

• Vagueness. If the language in a liability waiver is so ambiguous that no one could reasonably be expected to make sense of it, a court may disregard it. Most well-established gyms use carefully vetted forms, however.

If you are injured, you should immediately report the incident to the gym and ask for a copy of any report prepared by the gym staff. You can show that document, along with any photographs you may have of any equipment involved, to a lawyer. Contacting an experienced personal injury attorney can help you decide if you have a case to pursue.

Monday, June 6, 2016

Auto Recalls and the Dangers They Seek to Avoid

Automakers recall millions of vehicles every year. A recall seeks to reach out to consumers to return faulty products, mistakenly put in the marketplace, for repair. In 2014, more than 60 million vehicles were recalled, nearly doubling the previous record set in 2004. These automobiles all had some sort of defect. Some of the defects, while annoying, were not of serious concern, such as a faulty air conditioners, while others resulted in significant safety issues, like problems with the ignition switches, brakes, or steering. Honda issued a recall of 14 million vehicles because its airbags might shoot sharp pieces of metal into the car when deploying.

Of the 60 million cars that were recalled in 2014, less than half were actually repaired. Consumers may not be aware of the recall. Cars change hands several times, and dealers have trouble reaching out to everyone who might have the car. Several major car manufacturers have been caught purposely misleading regulators and consumers about recalls to save money. Toyota recently paid a $1.2 billion fine for this improper action. Even when everyone is aware that a recall has been issued, a consumer may not prioritize it. When consumers are able to bring their automobiles in for the recall, the part necessary for the repair may be unavailable, especially on older model cars that are no longer in production.

This leaves millions of automobiles on the road every year that may pose significant safety issues. Wiring issues can increase the risk of car fires. Vehicle components could break resulting in loss of control of the vehicle. Seat belts might be defective. Windshield wipers might not work properly. All of these problems make the roads less safe for drivers of these vehicles and everyone else on the road.

If a consumer is injured as a result of an issue caused by an automobile defect, he or she may have a substantial claim against the auto manufacturer. If the defect has caused a collision, the car company may be responsible for all injuries. A consultation with an experienced attorney is necessary to determine whether or not a claim is viable in a particular situation. 


Monday, May 30, 2016

Dangerous Medications & Class Action Suits

The Food and Drug Administration (FDA) reviews, and approves, many drugs and medical devices to ensure that they are safe for consumers before they can be sold. Still, a lot remains unknown when a drug or device first enters the market. Unfortunately, some drugs and devices end up causing injury to the people that they are prescribed to treat. When many people are harmed by the same prescription drug or medical device, a class action lawsuit is typically filed in order to efficiently compensate all of the injured plaintiffs.

If you saw a television advertisement alerting you to a lawsuit over a drug or device you or a loved one used, you have good reason to be concerned, but you should not panic. An experienced attorney can guide you in determining whether you qualify for compensation and what steps to take next. There is often no cost to you because the drug or device company at fault typically has to pay all the costs associated with the injuries it caused.

The longer a drug or device is on the market, the more we learn about its side effects, so it is important to keep records about the medications and medical devices you and your loved ones have used. You never know when additional information will uncover previously unknown dangers, so paying attention to warnings about drug and medical device class actions is important. If you can recognize early on that you or a relative may be at risk, you could potentially save your life or that of a loved one, and ensure that you receive the compensation you are due for the risk you have been subjected to.

If you think you have been harmed by a dangerous medication or device, contact an experienced personal injury attorney who can advise you about participation in class actions related to drugs and medical devices.

Monday, May 16, 2016

When Is My Hot Beverage Too Hot?

A lawsuit over an excessively hot beverage made headlines two decades ago. A 79-year-old woman spilled a cup of McDonald's coffee in her lap and suffered third degree burns. A jury awarded her millions in damages; since then, almost every major chain that serves coffee has been a defendant in a similar suit.

In the McDonald's case, the coffee was brewed at 195 to 200 degrees Fahrenheit and then maintained at 180 to 190 degrees. This was consistent with the range recommended by the National Council of Chain Restaurants, but hotter than the temperatures some burn experts considered safe. The plaintiffs' attorneys argued that the high temperature was "unreasonably dangerous" and "inherently defective."

McDonald's currently serves coffee at 176 to 194 degrees. For approximately a decade, Starbucks has been selling coffee at 175 to 185 degrees. According to the Specialty Coffee Association of America, the standard serving temperature is 160 to 185 degrees. For a number of practical reasons, companies brew coffee and tea at temperatures that exceed the burn thresholds of skin, and beverage spills continue to send people to the hospital with scalding injuries.

Much of the coffee served today is as hot or hotter than the coffee that led to the 1994 McDonald's lawsuit. Instead of lowering temperatures, companies place strongly worded warnings on their coffee cups. They also have worked harder to present expert witness testimony regarding their reasons for serving the coffee at high temperatures.

In a 1998 case, Bunn-O-Matic, a manufacturer of coffeemakers, won a suit against it when the Seventh Circuit Court of Appeals unanimously held that 179 degrees was not "unreasonably dangerous.” New cases are continually filed, some involving hot chocolate and hot cider, with both the reasonableness of temperatures and the adequacy of warnings still points of contention.

If you have been burned by a hot beverage, contact an experienced personal injury attorney to advise you about whether you have a viable case.

Monday, May 9, 2016

Injured at Daycare

Over the past few decades, the number of women entering the workforce has increased dramatically.  With both parents working outside of the home, more children are being cared for at local daycare centers starting at a young age. When parents send their children off to daycare, they expect them to be kept safe and engaged. Unfortunately, this isn’t always the case; each year, thousands of children are injured at daycare facilities across the country. If your child has been injured under the supervision of a child care provider, you may be wondering what steps you should take after the accident.

Following any injury, medical treatment should be your first and foremost concern. Be sure to keep an account of all doctors’ appointments, medications, procedures, and medical records.  You should also keep a log of complaints of pain from your child and retain the results of any tests performed. If there are visible injuries or if the unsafe condition which led to the injury can be seen, be sure to take photos.

The daycare center may have an accident report procedure that you must follow. This will generally consist of a number of forms; be sure to complete these in their entirety and follow the submission guidelines. Following the injury, you should also consult a personal injury attorney to ensure you protect and preserve your rights under the law.  A personal injury attorney can help you to establish that the childcare provider failed to exercise due care to prevent injury to your child. This will require the attorney to assess the circumstance leading up to the injury and how it could have been prevented with proper precautions. All too often, injuries are caused by a lack of supervision or a poorly maintained facility.

An experienced injury attorney can help you file a claim with the facility’s insurance carrier and review any settlement agreements to ensure you are getting the full compensation that you deserve. If the settlement offers are not adequate, your attorney may advise you to proceed with a lawsuit against the negligent care center.

Our law firm will work diligently to ensure your child receives the treatment he or she needs to make a full recovery in addition to helping you obtain the financial means you need to support your child for years to come. 

Monday, April 25, 2016

Who is responsible for injuries caused by animals?

While laws concerning responsibilities for injuries caused by animals vary from state to state, there are some consistencies. Most of the time, the owner of an animal can be considered liable for his or her animal's dangerous behavior. Therefore, once medical attention has been sought, if the victim is contemplating legal action, the name and contact information of the animal's owner should be obtained. If the injured party doesn't know the owner's name, the information can often be uncovered by quizzing neighbors or witnesses, and this data should be provided to a personal injury attorney.  

States Differ Regarding "Strict Liability" for Injuries Caused by Animals 

While in some states "strict liability" applies, meaning the owner of the animal is responsible for the animal's behavior whether or not the owner was negligent, in other states the owner is only held liable if he/she was aware of the animal's "dangerous propensities." This awareness is often difficult to assess, for example, is the size or breed of the animal enough to create a presumption of danger, even if the particular animal has always been well-behaved?

"Contributory Negligence" as Cause of Animal Injuries

Another factor to consider in cases of injuries caused by animals is whether the person injured played some part in the event.  A person who ignores a "Beware of Dog" sign, for example, or who climbs into a fenced yard where an animal is contained, is considered to have assumed a certain amount of risk. It is still the owner, however, who bears the burden of convincing the jury of such arguments.

 Animal owners can also defend themselves and their pets if the "victim" teased or threatened the animal before the attack took place. 

Other Parties Who May Be Held Responsible for Animal Injuries

 In certain situations, it is not the owner who is held accountable for the injury inflicted by the animal. This may occur in the following cases:

  1. When an animal keeper or sitter is responsible for the care of the animal, such as in a kennel, a pound, or when the owner is not at home, that person may be held responsible for the inflicted injury.
  2. When a person under the age of 18 years is the owner of the animal, the parents or guardians of the minor may be held responsible.
  3. When a property owner has allowed the animal onto his/her property, that property owner may be accountable for the behavior of the visiting animal.
  4. If the landlord of an apartment knew, or should have known, that a tenant possessed a dangerous animal, it is possible that the landlord may be held liable.

What Damages Can Be Recovered After an Injury Caused by an Animal?

The damages the victim of an animal injury is entitled to vary according the severity and circumstances of the injury, and may include:

  • Medical expenses
  • Lost wages
  • Pain and suffering
  • Property damage

There are even cases in which punitive damages will be awarded when an animal injury has taken place. This occurs when the owner, fully cognizant of the danger of the animal, allows it to run free or to be in contact with someone who is then attacked. Punitive damages are awarded not only to punish the owner and provide compensation to the victim, but to deter the defendant and others from engaging in similarly dangerous conduct.


Monday, April 18, 2016

NFL Concussion Suit Sheds New Light on the Inherent Risk of Workplace Injuries

If you’re like most individuals, you perform hundreds of activities each day at home and in the workplace. In some instances, these regular activities that you might have believed to be harmless end up hurting you many years down the road. When those activities were work-related, the fact that they were “just part of the job” doesn’t mean your employer is off the hook if you need medical attention.

A good example of this is the NFL concussion lawsuit. In the NFL, there is an inherent risk that a player will be injured when he steps on the field. This risk is obvious and by playing football, the players have assumed this inherent risk. The doctrine of assumption of risk, in addition to the the Collective Bargaining Agreement (CBA) the league enters into with the NFL Players Association, prevents players from filing suit when they suffer an on-the-field injury.

What the players (and the teams, owners, and league) claim not to have known, or perhaps knew but did not want to acknowledge, is that every-day injuries, particularly head injuries, can have serious long-term impacts on the players. The NFL is now being sued by past players who think that the league was negligent for not protecting them from long-term injuries or at least warning them about the risk of long-term injuries.

How this translates into the non-football world is still a bit unclear since the NFL suit is rather unique, but it is something employees who have assumed the risk of day-to-day injuries should keep in the back of their minds. If years down the road the cumulative impacts of those small, every-day injuries start to add up to something major, it may be time to investigate whether the employer failed to properly protect or adequately warn employees of the long-term dangers they faced.

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