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New York Personal Injury Law Blog

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.


Monday, April 11, 2016

What is a class action lawsuit?

Normally when a person suffers an injury as a result of another person’s mistake or wrong doing, that injured party has the right to file a lawsuit.  Sometimes, an injured party has a right to join a lawsuit that involves a large group of people.  These types of lawsuits are commonly referred to as class action lawsuits.  In these cases, the party who filed a lawsuit must be able to adequately represent the interests of all those who were also allegedly injured by the actions of the defendant.

A court must certify a class action lawsuit.  In order to be certified as a class, two main criteria must be met.  First, all the questions of law or fact in dispute must be common to all plaintiffs in the class.  That means that if a case requires that a plaintiff prove facts specific to his or her own case, it should not be included in the class.  Second, the number of plaintiffs must be large enough to make it impractical to try each case individually.  That number varies and will be decided on a case-by-case basis. 

The point of the class action is to maintain judicial efficiency.  The court system would be bogged down if every single person who purchased a drink with an improper label filed a separate lawsuit claiming unfair business practices.  The legal costs to the defendant would be obscene.  The logistics of bringing the same witnesses to court to testify over and over again would be impossible to deal with.  Class action lawsuits also serve to hold companies accountable for small mistakes that affect many people.  A company that practices deceptive advertising may only trick each consumer out of the price of one of their goods, hardly worth a lawsuit, but when hundreds of consumers band together to enforce their rights, justice is better served.

Once a group of individuals files a lawsuit against a defendant for an alleged wrongdoing, they are responsible to seek out other people who might have been affected and offer them an opportunity to join the class.  Each individual can choose whether to join the class and accept the settlement presented to the entire class, or to preserve his or her own right to file his or her own lawsuit.  Common class action lawsuits include suits resulting from an environmental disaster such as an oil spill, prescription drugs with unforeseen side effects, defective products, misleading advertising, price fixing and price gouging, securities fraud and employment discrimination suits.


Monday, March 28, 2016

Why do I need a fence if I have a pool?

A person who has a pool, trampoline, swing set, or other similar structure in their yard is usually required, by their homeowner’s insurance, if not by law, to also have a fence. This is because these structures are seen by the law as attractive nuisances. This means that a child who sees a such structures, and who may not appreciate the danger they present, is likely to trespass on the property to play in, on, or with them and injure him or herself. The doctrine of attractive nuisance puts an obligation on a homeowner to protect these children who are incapable of protecting themselves. 

The law does not limit liability to instances where the attractive nuisance is a pool or another type of recreational device. Children’s imaginations are vivid enough to turn any sort of dangerous structure or equipment into a playground. Piles of loose lumber and abandoned cars have been found by courts to qualify as attractive nuisances. An attractive nuisance must: 

  • Be an artificial hazard in a place where children are likely to trespass
  • Create unreasonable risk of harm to children incapable of understanding that risk
  • Be a greater risk to potential victims than the utility of the hazard and the burden of its maintenance 

Determining when a child is innocent enough to qualify for protection under the attractive nuisance doctrine is also unclear. A person with diminished mental capacity may be considered a child for these purposes even if he or she is over the age of 18. The determination of who qualifies as a child is made on a case by case basis. 

Using a fence is a good way to make sure that a child passing by is not intrigued by a potentially dangerous condition. Even if the child is able to see over the fence, he or she will have trouble climbing over it, sufficiently discouraging the trespass in order to avoid liability for injuries sustained. A sign warning individuals of danger may be enough to protect a homeowner from liability, except when a child is unable to read the sign. Regularly inspecting property for potentially dangerous conditions and making sure trespassers stay away from your property are the best ways to avoid liability under the attractive nuisance doctrine.


Monday, March 21, 2016

What is strict liability?

In personal injury law, strict liability refers to certain types of cases in which the injured party does not need to show intentional action, negligence, fault, or even awareness in order to collect an award. This significantly lowers the burden of proof for the plaintiff. The plaintiff only needs to prove an interaction with the defendant, and that an injury resulted; however, the rules as to when strict liability applies are limited to specific situations. When a person engages in any abnormally dangerous activity, there is always a risk of injury. Any injuries that occur when engaged in these activities are strictly the responsibility of the person conducting them, even if that person takes every reasonable safety precaution to avoid injuries. Examples of abnormally dangerous activities include storage of explosives, transportation of flammable or hazardous materials, or anything that emits toxic fumes.

 

When a company produces a defective product that injures a customer, it is strictly liable for the defect. There are different types of defects such as a flaw in the design of the product itself or a manufacturing defect for that specific item. The defect might also be a failure to warn consumers of a potentially dangerous condition. Any predictable use of a product must be anticipated.

 

The most common type of strict liability cases involve dog bites. Thirty five states and the District of Columbia have statutes making injuries caused by animals the strict responsibility of that animal’s owner. While these  statutes are not  uniform,  all of them impose some level of liability for dog bites. Some statutes impose strict liability for dogs outside of their enclosures or off a leash. In other cases, a possible defense is that the injured party provoked the attack. In some states, strict liability only applies if the dog has a history of aggressive behavior. A sign warning of the dog’s dangerous propensity might be enough to protect a dog owner from liability. If the injured person was trespassing, he or she might not be able to collect.


Monday, March 7, 2016

Cycling Risks & Injuries

Each year, thousands of Americans take to the roads on bicycles. This mode of transportation is touted as being more cost-effective and more environmentally friendly than motor vehicles but when it comes to safety, cycling can come with a much greater risk. According to the National Highway Traffic Safety Administration, 39,000 individuals were injured in motor vehicle crashes in 2012. That same year, 724 cyclists lost their lives following accidents on the roads.

In addition to the dangers of moving vehicles, cyclists often suffer injury from being “doored”; this occurs when a driver, or passenger, of a stopped vehicle, suddenly opens the door into a cyclist’s path of travel. Injury can also occur from street defects, such as large pot holes or uneven manhole covers that can cause the cyclist to lose control. If you’ve suffered an injury while riding your bike, it’s important that you consult a personal injury attorney who has experience representing cyclists. Unlike other accidents, cycling accidents have a number of unique considerations; these include:

Insurance Coverage May Be Different for Cycling Accidents
Many attorneys have litigated car accident cases and may assume that the insurance process works the same way for cycling incidents, but this is rarely the case. In fact, many states have unique rules regarding the minimum coverage and payouts when a cyclist collides with a motor vehicle, even when the driver of the vehicle isn’t found to have been negligent.

The Laws of the Road Differ for Cyclists
In determining fault, your attorney must understand the roles and duties of all parties involved. When it comes to cycling accidents, few are intimately familiar with the laws that apply to cyclists but such knowledge is imperative for case success.

The Injuries Are Different
Injuries sustained when riding a bike are vastly different from those sustained when driving, or riding in, a car.An attorney who has represented injured cyclists will likely have a much better idea of how much money will be required for immediate and long-term treatment.

As experienced personal injury attorneys, our firm can help you through the complex litigation process following  a cycling injury and help you receive the compensation you need to recover, and get back on that bike as soon as possible.

 


Monday, February 29, 2016

Factors Used to Determine Fault in a Traffic Accident

When the courts are asked to determine liability in a personal injury case involving a traffic accident, one of the first things a jury is asked to consider is who is at fault for the accident. There are several factors that are taken into consideration when making that determination.

First and foremost, if any of the drivers involved in the accident were guilty of any traffic violation related to the accident, there is a good chance that the court will assign fault the driver guilty of the infraction. Common traffic violations related to traffic accidents include running red lights or stop signs, speeding, making improper turns, and texting while driving. Similarly, if any of the drivers is guilty of driving under the influence of drugs or alcohol, he or she is likely to be found at fault for the accident.

A police officer’s account of the accident is also important in determining which party is at fault. The police officer will interview witnesses, including the parties to the accident, and weigh conflicting stories to determine what actually happened to cause the accident. Tire marks on the road and the positioning of vehicles can help an officer come to a conclusion. Sometimes, video footage exists to eliminate any doubt as to what happened, either from someone’s dash cam or from a security camera. Police officers have experience and training to help them recreate accident scenes from the evidence available, but their reports are not perfect.

When an accident is the result of a rear end collision or a left hand turn, the officer is usually quick to assign blame to the car in the rear or the car turning left. The rule of thumb while driving is that the driver making a turn must wait for oncoming traffic to pass before turning. A driver must always cede the right of way to the traffic in front.

The role that the determination of fault plays depends largely on the laws of the state in which the accident occurs. Some states follow a doctrine of contributory negligence while some have a more lenient policy of comparative negligence. States that use contributory negligence may preclude a plaintiff from collecting any damages if his or her own negligence contributed to the accident at all. States that use a model of comparative negligence will reduce a jury’s award by the percentage of fault found to be the plaintiff’s. If a plaintiff has more than 50 percent fault, he or she cannot recover anything.


Monday, February 22, 2016

Traumatic Brain Injury

Out of all personal injury cases, those involving traumatic brain injuries can be some of the most difficult for the victim and their families.  These injuries can have a huge impact on an individual’s daily life and often times perfectly capable people end up in need of lifelong care after their occurrence.  Brain injuries occur all the time so it is important to understand what commonly causes them and how you can obtain compensation should you or your loved one be the victim.

A traumatic brain injury is damage to the brain from an outside force.  The outside force can be either a blunt trauma or come from a jolt or an object of some kind that penetrates the skull.  This force causes the brain to malfunction in some way.  Brain injuries vary in severity and can cause a wide range of symptoms ranging from a headache to complete paralysis.  Less serious injuries might cause mild symptoms and temporary physical, cognitive and psychological effects.  More serious injuries can cause permanent impairments and even death.  The effects of a brain injury can last a lifetime.

There are many causes of traumatic brain injury stemming from every day activities as well as freak accidents.  Motor vehicle accidents are one of the leading causes of these types of injuries.  The blunt traumas, jolts and penetration wounds that sometimes occur in these situations can easily cause a brain injury.  Crimes are also a leading cause of brain injury.  Crimes involving firearms and/or physical violence can cause serious injuries to the brain if the circumstances are right.  But, most brain injuries stem from falls.  Falls at home, on another’s property and from heights can easily translate into a serious injury.

Regardless of the situation, if traumatic brain injury was caused by another individual or entities negligent, reckless or willful behavior, you might have a claim for personal injuries.  One of our experienced personal injury attorneys can evaluate your case to determine whether you should pursue a claim.  Contact us for a consultation today.


Monday, February 8, 2016

The Baseball Rule

Each year, over 70 million tickets to Major League Baseball games are sold in cities across the country. Fans flock to these games for the live action – the opportunity to see their favorite players in the flesh, enjoy a few hot dogs and belt out the fan favorite “Take Me Out to the Ballgame” with thousands of other die-hards during the seventh inning stretch. Unfortunately, each year some of this “live action” causes injuries to spectators when a foul ball or flying bat (and occasionally, a player trying to get that heroic out) finds its way into the crowded stands. If you’ve witnessed one of these incidents or have been a victim of one, you’ve likely wondered what happens next? Will the team pay for medical care? Does the injured party have a right to sue?

Under “the baseball rule” owners must demonstrate a high degree of care for visitors to their stadiums, taking measures to protect spectators in high-risk areas (such as behind home plate) and areas where spectators can expect to be protected. Under the rule, spectators in the unprotected areas of the stadium should assume the inherent risks of the game that include balls travelling at very high speeds and pieces of equipment that might be propelled into the seating areas.

On the back of nearly every ticket for a professional sporting event, you will find a warning of these inherent risks, and a statement that explains that the team and stadium is not responsible for any injuries resulting from the game. This ticket is seen as a form of an adhesion contract which is a standardized agreement that a party is bound to once they purchase the ticket (even if the ticketholder was unaware of the terms and failed to read them prior to attendance).

In deciding civil suits pertaining to injuries at baseball games and other professional sporting events, the courts have often looked to the baseball rule in making their judgments. It is, however, important to note that not all states adhere to the rule that limits the liability of owners assuming the standard of care to visitors is met.

In one recent case Rountree v. Boise Baseball, LLC, et al., the Idaho Supreme Court balked at the century old baseball rule and ruled that a gentleman who had lost his eye when he was hit with a foul ball at a game of a minor league affiliate of the Chicago Cubs could seek damages from the baseball organization.  

If you’ve been injured at a major sporting event, you may be entitled to seek compensation for your pain and suffering. It’s important that you contact an experienced personal injury attorney who can help you understand the laws in your state, all applicable court rulings and work with you to determine the best strategy for recovery. 


Monday, January 25, 2016

Deciding Who to Sue: How Do I Know Who to Name as Defendants?

When you decide to start a lawsuit, it can be confusing to identify the responsible parties. Sometimes there are a lot of people involved in your injury; maybe you're suing a business, and you're not sure about its official name or who the owners are. Factual investigation is often a crucial part of starting a personal injury lawsuit.

You can select more than one defendant to sue if that person or company is somehow connected to the harm you suffered. There are "necessary" defendants -- people without whom a court will not be able to evaluate all the facts of your case or reach a conclusion. "Permissive" defendants are not essential to the case, but if your dispute with them involves the same facts and issues as your dispute with the necessary defendants, you can usually include them in your lawsuit.

You may also want to expand your lawsuit to parties not directly involved but still liable. For example, if you are suing someone who harmed you in the course of performing a job, his or her employer may be liable. If a poorly designed or malfunctioning product is involved, you may be able to sue the companies and individuals involved in the product's design, manufacture, distribution or sale.

Suing individual owners of corporations, or a corporate parent of a subsidiary, can be difficult. The corporate structure limits liability, but there are exceptions. A court will "pierce the corporate veil" when fraud is involved or when justice demands it.

Before filing your lawsuit, you need to consider all those who have a connection to your claim. An experienced personal injury attorney can help you evaluate the facts of your case and determine who to sue.


Monday, January 11, 2016

What is soft tissue damage and how is it treated?

Soft tissue damage refers to damage done to the muscles, ligaments, and tendons throughout the body.  Often referred to as sprains, strains, contusions and tendonitis, soft tissue damage is usually caused by a traumatic event such as a slip and fall or a traffic accident.  It can result in swelling, bruising, and loss of function.   Immediately after an injury, the area affected by soft tissue damage should be protected, rested from any strenuous activity, kept cool with ice to regulate swelling, compressed and elevated.  If pain continues after 72 hours, it is likely that the injury is more than a simple sprain or strain.  When the soft tissue is inflamed for a long period of time it could result in serious, long-term damage.

When soft tissue damage exists in the back and the spinal column is compressed, it may result in what is commonly referred to as a pinched nerve.  Each vertebrae is separated by a gel filled sac that acts as a cushion between the bones.  When the muscles surrounding and supporting the spine are inflamed, it pushes the bones together, squeezing the sac and causing it to bulge, called a bulging disc.  In more serious cases, the sac actually ruptures.  This is called a herniated disc.  Besides being incredibly painful, these conditions can result in weakness or numbness in the extremities, known as radiculopathy.

MRI can confirm the existence of a bulging or herniated disc.  Treatment varies depending on the severity of the case.  For some, physical therapy and chiropractic manipulation will be enough to heal the damaged area.  This is considered conservative treatment.  There is the possibility that an epidural injection to the affected area could help reduce inflammation and give the injury an opportunity to heal.  If nothing else is successful, spinal fusion or decompression may be an option to reduce pain. A doctor should be consulted before engaging in any sort of treatment.  


Monday, January 4, 2016

Does Old Man Winter Shield Property Owners from Slip and Fall Liability?

Slipping and sliding around on the snow and ice is part of dealing with winter. If you were injured during a fall caused by poor weather conditions, however, there may be someone to blame other than Old Man Winter.

Property owners have a duty to exercise reasonable care when it comes to maintaining the areas of their property that are open to the public. That duty does not end when winter weather arrives. Property owners are required, often explicitly by local law, to promptly remove snow and ice from the public areas of their property in order to reduce the risk of falls and injuries.

Property owners can meet their duty by removing the snow and ice themselves or by hiring a contractor, such as a plow company, to do so for them. No matter who does the snow or ice removal, if you are injured because you slipped and fell on poorly maintained property, you may be able to seek compensation from the owner.

This does not mean that you are exempt from exercising caution when getting around in bad weather. Members of the public also have a duty to use reasonable care when walking in an area known or reasonably expected to be snowy or icy. Failing to do so may reduce your recovery in any potential lawsuit.

Slipping and falling is so common, particularly in winter, that some people are embarrassed by their injury or think asking someone else to pay for it would be wrong. However, injuries caused by slipping and falling due to snowy or icy conditions can be quite serious, and the party responsible for your injury should be held accountable.

If you have been injured after slipping and falling on snow or ice, an experienced personal injury attorney can help you seek compensation.


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