Many Buffalo personal injury lawsuits are straightforward matters that should be resolved without a trial. To facilitate the quick resolution of such lawsuits, New York State law allows a party to request “summary judgment” when the facts of a case can lead to only one conclusion. The original intent of allowing a judge to grant summary judgment in such cases was to speed the process and keep the courts from becoming bogged down. Unfortunately, in some cases the dispute between the parties regarding whether summary judgment is warranted actually has an effect opposite of that intended.
This fact is well-demonstrated by a medical malpractice lawsuit that was recently before an appellate court on the other side of New York State. In Ostrov v. Rozbruch, the defendant had submitted papers requesting summary judgment. The plaintiff’s response included the affidavit from another surgeon. The Court noted that this surgeon’s affidavit lacked specific information necessary to refute the defendant’s request for summary judgment, but held off on a decision to give the plaintiff additional time to provide that additional information.
Both parties eventually ended up submitting multiple affidavits from experts in several different medical fields as they attempted to undermine each other’s position. The trial court ultimately did not issue a ruling on the original motion until 17 months after it was filed – greatly delaying the resolution of the case and running counter to the purpose of seeking summary judgment in the first place.
After reviewing the record, the appellate court noted that while its earlier rulings may have created an impression that supplemental filings for summary judgment could be used in this fashion, they should actually be used only sparingly in personal injury lawsuits.
In our experience as Buffalo personal injury attorneys, it is not unusual to see cases where the defendant attempts to place at least part of the blame for an accident on the injured person. Certainly, there are cases where the plaintiff engaged in conduct that contributed, at least in part, to his or her own injury. However, just as the plaintiff must have evidence of the defendant’s negligence, when asserting this claim the defendant must have actual evidence that the plaintiff was – at least in part – responsible.
As an example, in New York State cases where a defendant has failed to yield the right of way at a stop sign, there have been multiple occasions where the defendant claimed that because he or she did not see the plaintiff’s car, the plaintiff must have been speeding. In such cases, the courts have consistently ruled that to assert such a claim regarding the plaintiff’s conduct, the defendant must have proof in evidentiary form. Speculation that the plaintiff may have been speeding is insufficient to present this claim as a defense.
If you have been injured as a result of another’s negligence, we would be happy to answer your questions. Please feel free to call us at 716-542-5444.
In many Buffalo personal injury lawsuits, the responsibility of the defendant in causing the injury is clear. While a lack of any serious dispute regarding the defendant’s negligence can be very helpful in quickly bringing a personal injury lawsuit to a conclusion acceptable to the injured party, it does not automatically end the case.
There are several additional issues that a defendant may wish to contest. For example, even if the defendant was obviously negligent, the defendant may still be able to argue that the plaintiff also engaged in negligent conduct that contributed to the injury. If the defendant can establish this, each of the parties will be assigned a percentage of fault and the damages paid by the defendant may be reduced based on those percentages.
The defendant is also entitled to contest issues such as the degree of the plaintiff’s injuries and whether the claimed injuries were caused by the accident. Even if the defendant is found negligent as a matter of law – meaning a judge has determined that there is no issue regarding negligence to present to the jury – the defendant still is entitled to a personal injury trial regarding the actual value to be placed on the injuries.
When responding to a Complaint in a Buffalo personal injury lawsuit, the defense will almost always set forth in its Answer a number of defenses that the defense attorney believes may be relevant to the lawsuit. There are a variety of issues that may be raised in defense, and what the exact defenses will be varies from case to case. As the lawsuit progresses and information is exchanged by the parties, it may be found that some of these defenses do not apply.
When this happens, the injured party will want to avoid having such defenses submitted for the jury’s consideration. In some cases, the defendant may simply agree to withdraw a defense if it realizes it has no merit. If the defendant chooses not to do so, the injured party has the right to make a motion requesting that the defense in question be struck.
This motion usually will be presented to the judge who will oversee the personal injury trial. Under these circumstances, the burden in on the plaintiff to prove that there is no legal or factual support for the defense in question. If this can be proven to the judge, the judge may strike the defense.
If you have suffered a personal injury, we would be happy to help you. Please call us at 716-542-5444.
All Buffalo personal injury lawsuits are “officially” begun by the filing of a Summons and Complaint. This document informs the defendant that a lawsuit has been filed with the court and provides a brief summary of the facts supporting the lawsuit.
After receiving the Summons and Complaint, a defendant is required to provide the plaintiff with an Answer. In almost all cases, the Answer will consist of a written document containing responses to the allegations in the Complaint. While the specific content of the Answer will vary from case to case, Answers are usually divided into two parts.
The first part of the Answer usually sets forth the defendant’s position on each paragraph of the Complaint. The defendant may admit to the allegations set forth in a paragraph – confirming that the information in that paragraph is not in dispute, deny the allegations in a paragraph, or simply state that he or she does not have sufficient information to admit or deny the contents of a given paragraph.
The second part of an Answer usually consists of various defenses that the defendant is asserting in response to the allegations. These defenses will not contain specific details and may consist of issues ranging from lack of jurisdiction to claiming the accident was the plaintiff’s fault. The details regarding these defenses may be developed as the case progresses. The defense frequently raises a variety of issues – some of which ultimately may not apply – to avoid being barred from raising the defense later in the personal injury lawsuit if it proves relevant.
Many Buffalo personal injury lawsuits involve situations where a person is responding to an unexpected situation and causes injury. This can occur, for example, where a car veers into the other lane, causing a driver in that lane to swerve and strike a third car or a pedestrian. Under this scenario, the driver who swerved may be found not responsible for the accident because he or she was responding to an emergency situation. This is not, however, required by law.
Even where an emergency situation exists, the person responding to the emergency situation must still establish that he or she responded to the emergency as a reasonably prudent person would. The standard of what constitutes a “reasonable” response may be lowered based on issues such a lack of time to decide on what action to take.
In the scenario of the veering car set forth above, the actions of the driver of the second car would have to be scrutinized to determine if negligence was supported. If, for example, it were established that the driver of the second car would have had additional time to react to the car veering into the lane, but he or she was not paying adequate attention to what was there to be seen, he or she may still be found negligent.
If you have suffered a personal injury, we would be happy to help you. Please feel free to call us at 716-542-5444.
Buffalo homeowners who allow children – or even older teens – to use a trampoline should be aware that any injury suffered as a result may give rise to liability. This fact was well-demonstrated in the recent ruling of the Nassau County Supreme Court in Hallwood v. Daniels, 15462/09.
In that case, a 14 year old boy was playing on a trampoline at a friend’s house with three of his friends. The mother of one of the boys was at home but apparently not observing their activities. They decided to climb onto the roof of a nearby one story garage and jump onto to the trampoline from there. Two of the boys had done this before, but the plaintiff had not. The boys told the plaintiff he did not have to jump if he did not want to, but he insisted.
Upon hitting the trampoline, the plaintiff’s knee struck his jaw. He ultimately required two crowns and teeth implants. Years later, he continues to suffer from headaches.
The owners of the trampoline sought to have the case dismissed by the court based on a theory that the teen was old enough and smart enough to be aware of the risk of his actions, but chose to proceed anyway. The court, however, declined to dismiss the case under these circumstances.
This decision was based on judge’s finding that “the combination of the defendants being at home when the incident occurred and the close proximity of the trampoline to the one-story garage and ladder and/or low fence may have created a zone of apparent danger for which a jury may find the defendants to be liable.”
As a result, sufficient questions of fact existed for the case to be heard by a jury.
While many people think of the sidewalks running through residential neighborhoods as “public sidewalks,” experienced Buffalo personal injury attorneys know that these sidewalks often are not the responsibility of any public entity. This can be especially important when determining who is responsible for an injury suffered as a result of falling on a poorly maintained sidewalk.
In many municipalities, the sidewalks running through residential neighborhoods are the responsibility of the landowner, not the local government. The duty to maintain the sidewalk is delegated to the owner of the property through which that section of sidewalk runs, and – if an injury occurs as a result of poor maintenance – it is the landowner, not the municipality, that is sued. While this may seem unfair, in New York State a municipality may delegate responsibility for the sidewalk by passing a local law doing so.
If you have been injured as a result of falling on a sidewalk, your personal injury attorney will need to look into the local ordinance regarding sidewalks and examine exactly how the law is worded to determine who to proceed against.
If you have fallen on a poorly maintained sidewalk, we would be happy to help you. Please call us at 716-542-5444 with any questions.
When a Buffalo resident suffers a personal injury in a motor vehicle accident, he or she is required to meet the “serious injury” threshold before damages may be recovered. Briefly put, the purpose of the “serious injury” threshold is to weed out cases involving only minor injuries. New York State law sets forth several categories of serious injury that define when an injury qualifies.
Recently, the highest court in New York State, the Court of Appeals, issued a ruling addressing three separate cases involving serious injury: Perl v. Meher, Adler v. Bayer and Moonan v. Batchi. The rulings in these cases provide the lower courts with additional guidance regarding when an injury qualifies as a serious injury.
While the cases addressed several issues related to the serious injury threshold, perhaps the most important issue involved the handling of pre-existing conditions. This is an issue when, for example, an older plaintiff has signs of arthritis in the neck but suffers additional injury to the neck following the motor vehicle collision. The defense frequently argues in such cases that the entire injury is pre-existing and, therefore, the judge should dismiss the case because there is no proof of serious injury.
The Court of Appeals found that in such cases, whether the condition was pre-existing or caused by the accident is a question of fact that should generally be left to the jury’s decision. So long as both sides present competent medical proof regarding their position, the judge should allow the jury to make the decision instead of dismissing the personal injury lawsuit.
Unlike nearly every other state in the United States, the New York State courts have determined that to succeed in a personal injury lawsuit, a person injured by a dog must prove that the owner of the dog knew it had “vicious propensities” prior to the event leading to injury. As a result, a Buffalo citizen injured by a dog is faced with the difficult task of trying to find evidence of what the dog owner knew.
This can be especially difficult if a person is attacked by a strange dog. While the owner will be routinely asked if the dog had ever displayed vicious propensities, it will be the rare owner who actually admits that they knew their dog had a tendency to bite, growl, act aggressively or engage in dangerous behavior, but they did nothing about it. Many cases have been dismissed because the owner – truthfully or untruthfully – simply denied knowledge of any aggressive behavior, and there was no way to prove what they knew.
In this situation, the injured party usually is placed in the position of hiring an investigator to speak with the owner’s neighbors to obtain any leads regarding the dog’s prior behavior. Of course, under New York State law it is not enough to prove that the dog had previously acted in a vicious manner, it must also be proven that the owner knew about it. As a result, it is not enough for a neighbor or other witness to merely state their observations of the dog. Ultimately, a witness must be found who can confirm that the owner either saw such behavior or was spoken to about it to support a dog bit lawsuit.
