Opinion evidence can be a tricky issue in Buffalo personal injury lawsuits.  Generally, the law in New York State is that witnesses are limited to testifying to the facts, not their conclusions based on those facts or their opinions.

As a result, a witness may be barred from stating that they consider a parking lot to have been “poorly maintained.”  They may, however, offer testimony regarding the condition of the parking lot as they observed it – such as whether there were potholes, cracks or other hazards within the parking lot.  The logic behind this rule is that the witness should not be allowed to substitute his or her opinion for the jury’s own opinion regarding the facts of the case.

There are, however, several exceptions to the general rule that opinion testimony is not admissible.  The most frequently encountered exception is the “expert” exception.  The expert exception allows a witness who has been trained in a specific field to offer an opinion if that opinion would help clarify an issue beyond the technical expertise of the average juror.

There are also exceptions made for the opinions of non-expert witnesses.  These exceptions are usually tied to the difficulty that often arises in describing something without expressing an opinion.  For example, descriptions of things and people are often intrinsically tied to an opinion about what they looked or acted like, and such testimony will often be admitted by the court.

If you have suffered a personal injury and have any questions regarding this topic, please feel free to call us at 716-542-5444.

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When proceeding with a Buffalo personal injury lawsuit, the plaintiff will, at some point, usually be required to establish that they can make out a prima facie case.  The term prima facie is an old Latin-based phrase that has survived into modern legal usage.  It translates as meaning “at first view.”

Prima facie evidence is evidence sufficient to raise a presumption of fact or to establish the fact in question unless rebutted.  Basically, this means that if everything offered by the party attempting to establish a fact is accepted as true, then that fact would be considered established or valid.

To establish a prima facie case in a personal injury lawsuit, the plaintiff must put forth evidence regarding every factor to be considered in the case that is sufficient to raise a presumption that the plaintiff can prove each factor.  The factors that must be proven would include that the defendant was negligent, that the plaintiff was injured, and that the plaintiff’s injury was caused by the defendant’s negligence.

If the defense believes the plaintiff cannot establish a prima facie case, they may attempt to have the plaintiff’s case dismissed before it is brought to trial.  When this occurs, the judge will rule on the evidence submitted by the parties and determine if the plaintiff has sufficient evidence on each factor challenged by the defense.  Failure to establish a prima facie case would result in the personal injury lawsuit being dismissed.

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Unfortunately, Buffalo residents who need to pursue personal injury lawsuits may find themselves required to disclose a variety of personal information to the opposing party.  The defense is entitled to information, such as medical records, that are relevant to the lawsuit.  This does not, however, mean that the defense may make frivolous or harassing requests of the plaintiff. 

Section 3103 of the New York Civil Practice Law and Rules provides a victim with a remedy if this occurs.  It authorizes the court, at any time on its own initiative, or on motion of any party or person from whom discovery is sought, to make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. 

An order of the court in this situation must be issued for the purpose of preventing unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts. 

Moreover, if a court finds that information has already been improperly obtained so that a substantial right of a party is prejudiced, it may, on motion of the aggrieved party, make an appropriate order, including an order that the information be suppressed. 

If you have suffered a personal injury and have any questions regarding this topic, please feel free to call us at 716-542-5444. 

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Going to trial in a Buffalo personal injury lawsuit always involves some degree of risk.  No matter how good you case and justified your claim for damages, the possibility always exists that a jury will not find in your favor.  While there are some remedies that may be pursued by the victim if this happens, he or she now faces an uphill battle. 

Generally, there are two avenues that may be pursued by a victim whose lawsuit has been deemed to have no basis by a jury.  Rule 4404 of the New York Civil Practice Law and Rules provides that within fifteen days of an adverse decision, based on the motion of either party or on the court’s own initiative, the court may set aside a verdict or any judgment entered thereon.  If the court decides to set aside a verdict, it may then either enter a judgment in favor of the other party – if it deems that party is entitled to judgment as a matter of law – or it may order a new trial. 

It is very rare for court to disturb the finding of a jury, and they may only do so upon a finding that the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree  after being kept together for as long as is deemed reasonable by the court. 

The other avenue available following an adverse ruling is to appeal the decision to a higher court.  Bear in mind, however, that even courts at the appellate level are generally averse to altering the decision of the jury in a personal injury lawsuit absent some glaring error.

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For Buffalo golfers, the golfing season still seems a long way off.  When they return to the course, they should be extra cautious.  Over the winter, New York’s highest court has ruled that golfers assume the risk of being injured by errant balls when on the course.

In December of 2010, the Court of Appeals issued its decision in the case of Anand v. Kapoor.  Mr. Anand had suffered a serious injury to his left eye when struck by an errant golf ball played by his golf partner, Mr. Kapoor.  The case had been dismissed by lower courts based on “assumption of risk” by the participants.

Assumption of risk may bar recovery of damages when someone is injured in an organized athletic activity.  It means that the participants are aware that there are some inherent risks in playing the game and, because they are aware of these risks, are willing to forfeit any potential damages.

Mr. Anand argued that because Mr. Kapoor had failed to yell “Fore” or give a similar warning that he was about to shoot, he was negligent and could be held responsible for the injury.  Mr. Anand was not standing in the direct line of where Mr. Kapoor intended to shoot.  Instead, he was standing off to one side looking for his own ball when Mr. Kapoor “shanked” his shot.

The Court of Appeals found that being hit by a shanked ball was an inherent risk of golf that was assumed by the participants, and Mr. Kapoor’s failure to warn that he was about to shoot did not amount to intentional or reckless conduct.  As a result, Mr. Anand had assumed the risk of being hit and was not entitled to recover any damages in a personal injury lawsuit.

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Experienced Buffalo personal injury attorneys will closely watch the evidence submitted by their opponent to see if it actually adds up.  When one of the parties has not presented sufficient evidence at trial to support their position, the other party may request that the court issue what is commonly referred to among lawyers as a “directed verdict.”

Typically,  this motion is made after the other party has completed submitting their evidence to the jury.  It is based upon the concept that the opposing party has failed to either prove – in the case of the plaintiff – or disprove – in the case of the defense – the issue as a matter of law.  When this occurs the opposing party may request a ruling from the judge that the issue has been decided and remove it from consideration by the jury.

When deciding to remove a case from the hands of the jury, the judge must determine that there is no rational process by which the jury could reach a verdict in favor of the opposing party.  When making this evaluation, the court must accept as true all of the evidence as submitted by the opposing party and even assume that any issues regarding the credibility of witnesses would be resolved in favor of the opposing party.  If any doubt remains at all, the matter is properly left in the hands of the jury.

If you have suffered a personal injury and have any questions regarding this topic, please feel free to call us at 716-542-5444.  We would be happy to help you.

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This case from across the state is a good example for Buffalo residents of the importance of hiring an experienced and competent personal injury attorney. 

David v. Mallilo & Grossman started out as a fairly straightforward looking automobile accident.  In 2003, Rosalie David was a passenger in a car that was rear ended while waiting to make a left hand turn.  She complained of pain in her right shoulder and was eventually diagnosed as suffering from a full thickness tear of the right rotator cuff.

Given that the negligence of the other driver was clear in this collision, her case should have been fairly easy to present.  Unfortunately, her lawyers filed her case in the Civil Court of the City of New York, where the maximum amount that could be recovered was $25,000.  Given the potential for her case to be worth much more, it should have been filed in Supreme Court.  Once they realized their mistake, the lawyers requested to have the case transferred, but were denied.  This resulted in Ms. David having to accept only $25,000 in compensation for her injuries.  It also resulted in her suing her lawyers for malpractice.

In the malpractice lawsuit, the lawyers’ error was obvious and the plaintiff was granted summary judgment on this issue.  She then had to establish that she would have won the car accident lawsuit and would have received more in damages than she was granted.  The case concluded with Ms. David being granted $250,000 in the malpractice suit as compensation for the damages she should have received in her mishandled personal injury lawsuit.

Lawyers are human and make mistakes like everyone else.  As this case shows, however, in a personal injury lawsuit it is important to have an experienced personal injury attorney.  If you have suffered a personal injury, please feel free to call us at 716-542-5444.  We would happy to help you.

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Occasionally, Buffalo personal injury attorneys need to obtain records from a government entity that may be helpful to a client’s lawsuit.  For example, it may be helpful to have copies of 911 tapes or dispatcher calls regarding the police response to an automobile accident.  One way of obtaining this information is by making a Freedom of Information Law (FOIL) request of the appropriate government agency asking for the needed records.

New York State’s Freedom of Information Law covers all units of state and local government in New York State, including state agencies, public corporations and authorities, as well as any other governmental entities performing a governmental function for the state or for one or more units of local government in the state. 

Under this law, most documents that would be needed in the pursuant of a personal injury lawsuit should be disclosed by the agency.  There are, however, exceptions to what must be disclosed.  What can be excepted from disclosure is generally based upon the concept that release of the document will in some way violate someone’s privacy or impair the functioning of the government agency.  When disclosure is denied, the Freedom of Information Law provides specific steps that may be taken to appeal the decision of the agency.

If you have suffered a personal injury and have any questions regarding this topic, please feel free to call us at 716-542-5444.  We would be happy to help you.

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Experienced Buffalo personal injury attorneys will tell you that in some cases, having a lot of witnesses to an accident can make it more difficult to determine what actually happened – not easier.  It is not at all unusual for two witnesses – both of whom are truthfully speaking to the best of their recall – to provide completely different versions of an event.

Most personal injury accidents happen quickly, and the witnesses are likely to be more focused on avoiding injury to themselves or helping the parties involved than on remembering every little detail.  This fact, and the passage of time between the accident and the need for witness testimony, often leads to great differences in how people recall an accident.

It is up to the jury to weigh the evidence presented to them and determine what they actually believe.  It is up to your personal injury attorney to obtain information from witnesses in a way that will be helpful to your case.  A skillful personal injury attorney should be able to elicit the evidence necessary for the jury’s consideration to help your case when examining the witnesses.

In some cases, it may also be possible to reconstruct exactly how an accident happened based on the physical evidence.   In such a case, your personal injury attorney may wish to hire an expert who can look at the physical evidence and present testimony regarding exactly how the accident occurred.

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