There are many situations in which business records may be helpful in pursuing a Buffalo personal injury lawsuit. For example, invoices from a contractor for maintenance of property may be useful in determining who is responsible for an injury.
While many records are not admissible in court without the person who prepared the document personally appearing to testify and be cross-examined regarding the content of the document, there are certain documents that fall under what is known as the “business record exception to the hearsay rule.” Documents that fall into this category may be used in court if they meet the following criteria.
Under section 4518(a) of the Civil Practice Law and Rules, a record may be admitted if it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.
This definition excludes records prepared by a business for the specific purpose of using them in litigation and records that were created long after some event for the purpose of allegedly documenting that event.
Just because a document appears to be admissible under this rule, however, does not necessary mean it is. There are other reasons a business record may be excluded from use in a personal injury lawsuit, and what is and what is not admissible often turns on the specific facts of each case.
The residents of Buffalo do not let a little inclement weather stand in the way when it comes to getting outside. While this may be admirable, it is not necessarily helpful to someone who suffers a personal injury by slipping while it is snowing.
If it is snowing heavily, the defendant in a case involving slipping in snow may claim as a defense that there was a “storm in progress.” Because the courts of New York State have ruled that a dangerous condition on property must be present long enough for a defendant to have a reasonable opportunity to discover and remove it, a finding that the fall occurred because of newly accumulated snow may exonerate the defendant from responsibility for the fall.
Although slipping while it is snowing may make it difficult to prove that the defendant was liable, it does not necessary completely rule out the possibility of successfully suing for damages. If, for example, it can be proven that there was far more snow accumulated in the parking lot than could have fallen or blown in as a result of the snowfall at the time of the injury, a personal injury attorney may be able to establish that the injury was caused, at least in part, by previously present snow that the defendant could reasonably have been expected to remove.
If you have fallen in a parking lot and have any questions regarding this topic, please feel free to call my office at 716-542-5444.
Most automobile insurance policies issued to residents of Buffalo will exclude coverage for damage caused by a driver of the vehicle who was operating without the permission or consent of the owner. If this situation resulted in a personal injury, the injured party is entitled to bring an uninsured motorist claim under the Supplementary Uninsured Motorist coverage of his or her own auto insurance policy.
It should be noted, however, that there is a strong presumption under New York State law that the driver of a vehicle was operating the vehicle with the permission of the owner. Rebutting this presumption requires the presentation of substantial evidence sufficient to show that the driver was operating the vehicle without the owner’s express or implied consent. The uncontradicted testimony of the owner that he or she did not give permission, by itself, is not sufficient to overcome the presumption of permissive use.
Also, if a jury finds that the evidence indicating that permission was not given is improbable — or that the witnesses providing the evidence had an interest in the matter that may call into question their credibility — New York State courts have found that they are entitled to disregard this evidence and find that the driver had permission.
If you have been injured in a car accident and have any questions regarding this topic, please feel free to contact my office at 716-542-5444. We would be happy to help you.
Many residents of the Buffalo area enjoy outdoor activities in the rural sections of our community. To protect owners of property who allow others to use their property for such activities, New York State General Obligations Law section 9-103 limits the liability of such property owners for certain activities.
This law provides that the property owner owes no duty to keep the premises safe for entry or use by others for activities such as hunting, fishing, boating, hiking, cross-country skiing, sledding, horseback riding, bike riding, snowmobile operation, and gathering wood for non-commercial purposes. The owner is also not required to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes.
Moreover, the law provides that an owner who gives permission to another to pursue any such activities upon such premises does not thereby (1) extend any assurance that the premises are safe for such purpose, or (2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.
There are, however, exceptions to these limitations on liability. Exceptions include when the property owner engages in willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity, when the owner is paid for use of the property, and when a person granted permission to use the property causes injury to another person whom the owner did owe a duty to keep the premises safe or to warn of danger.
If you have been injured on another’s property and have any questions regarding how you should proceed, please feel free to call us at 716-542-5444.
When a Buffalo resident is injured in a car accident, up to the first $50,000 of that person’s medical expenses are usually paid by their own No Fault automobile insurance. When a person is driving for work, however, New York State law handles who pays the medical expenses differently.
In this situation, expenses associated with the car accident – such as the cost of medical treatment and lost wages – are paid by Workers’ Compensation insurance, not No Fault insurance. Because these two types of insurance are governed under different regulations, this fact can make a seemingly straightforward car accident case a little more complicated.
Fortunately for those also pursuing compensation in a personal injury lawsuit, New York State law provides that in car accident cases, payments by Workers’ Compensation that would be covered under No Fault insurance if the person had not been working are to be treated the same as No Fault insurance.
This is important because normally the Workers’ Compensation provider may collect reimbursement of its expenses if the injured person later receives payments for damages in a personal injury lawsuit. In contrast, a No Fault insurance provider may be required to pay up to $50,000 over the first three years following the injury, which is not recoverable. If a car accident is involved, Workers’ Compensation cannot recover payments made in place of No Fault payments.
If you have been in a car accident and have any questions, please feel free to call my office at 716-542-5444. We would be happy to help you.
If the jury in a Buffalo personal injury lawsuit finds that the injured party is owed damages, it then must make specific decisions regarding the amount of damages and how they will be allocated. For cases not involving medical, dental or podiatric malpractice, the rules regarding what the jury must decide are found at Rule 4111(e) of the New York Civil Practice Law and Rules.
This statute provides that in an action brought to recover damages for personal injury, the court shall instruct the jury that if it finds a verdict awarding damages, it shall in its verdict specify the applicable elements of special and general damages upon which the award is based and the amount assigned to each element including, but not limited to, medical expenses, dental expenses, loss of earnings, impairment of earning ability, and pain and suffering.
Each element shall be further itemized into amounts intended to compensate for damages that have been incurred prior to the verdict (past damages) and amounts intended to compensate for damages to be incurred in the future (future damages). In itemizing amounts intended to compensate for future damages, the jury shall set forth the period of years over which such amounts are intended to provide compensation.
If you have been injured and have any questions regarding your right to compensation, please feel free to call my office at 716-542-5444. We would be happy to help you.
When a personal injury lawsuit taking place in Buffalo or Western New York requires an appeal, that appeal will usually be made to the Appellate Division for the Fourth Department. New York State Law and the rules of the Fourth Department set forth a specific time line that must be complied with when making an appeal. While the court may grant extensions of time, these time limits should generally be complied with.
First, the party appealing the adverse ruling must take the appeal within 30 days of receiving the judgment being appealed from. An appeal is taken by serving on the adverse party a notice of appeal and filing it in the office of the court where the judgment or order being appealed from originated. A notice must designate the party taking the appeal, the judgment or order or specific part of the judgment or order appealed from, and the court to which the appeal is taken.
Once the appeal is taken, the Fourth Department gives that party 60 days within which to perfect the appeal. Perfecting the appeal basically involves providing the Fourth Department with documentation surrounding the lower court decision that the parties believe the Fourth Department will need in making its decision.
Once the appeal is perfected, the Fourth Department will issue a scheduling order setting forth when a response must be provided by the other party and when oral argument will take place. If the Fourth Department does not specify another date, the other party must submit its response within thirty days. At this point, the pace at which the appeal in the personal injury case will proceed in largely in the hands of the Appellate Court, and there is no hard rule regarding how fast the matter will proceed.
Under New York State law, Buffalo personal injury attorneys are usually able to have videotapes admitted into evidence. Doing so, however, requires that the video recording adhere to certain standards regarding its content.
The decision as to whether to admit or exclude videotape evidence is at the discretion of the judge, and if the plaintiff’s attorney wishes to have the tape used at trial, he or she should seek a pretrial ruling from the judge. The trial judge can then view the videotape outside of the presence of the jurors.
Once the judge has reviewed the tape, issues such as its relevancy, accuracy and authenticity can be addressed by the plaintiff and the defendant prior to the beginning of trial. Courts general will allow the use of a videotape that is relevant and non-inflammatory as evidence of the impact that the injuries have had on the plaintiff’s life.
If the defendant wishes to have a videotape admitted as evidence, such as a surveillance tape purporting to show that the plaintiff is not as seriously injured as claimed, the same procedure is followed. In either situation, the judge will look at when the tape was made and whether it is an accurate depiction of what it purports to show before allowing it to be used in court.
If you have suffered a personal injury and have any questions, please feel free to call my office at 716-542-5444. We would be happy to help you.
When a Buffalo resident is awarded a large amount of compensation after having suffered severe injuries, the payment of this compensation may be broken up into periodic installments. How long these periodic payments for future damages are to continue varies depending on the nature of the injuries, the age and health of the injured person, and other factors specific to the case.
When a person who is still receiving period payments passes away, New York State law sets forth specific provisions regarding how the remaining damages are to be handled. First, the liability for payment of any installments for medical, dental or other costs of health care or non-economic loss not yet paid terminates upon the death of person who was injured. As a result, no additional funds allocated to these categories need to be paid by the defendant.
Second, any remaining periodic payments allocated to loss of future earnings are not terminated or reduced upon the death of the injured party. Instead, they are to be paid to persons to whom the injured party owed a duty of support immediately prior to death. These payments are to continue for the remainder of the original period or until such duty of support ceases to exist, whichever occurs first. If the injured person did not owe a duty of support to anyone, the payments are considered a part of his or her estate.
If you have suffered a personal injury and have any questions regarding this topic, please feel free to call my office at 716-542-5444.
When a dog bite occurs in Buffalo, New York State law requires that for the bitten person to successfully sue for injuries, he or she must prove that the dog owner knew that the dog had “vicious propensities.” What constitutes proof of knowledge of vicious propensities is a complex area of law that has been subject to extensive analysis by New York State courts.
Factors they frequently are considered by the judge or jury when determining whether a dog has vicious propensities – and whether the owner knew of should have known of these propensities – include the following:
1. Proof of prior acts of a similar kind of which the owner had notice
2. Evidence that the dog had been known to growl, snap or bare its teeth
3. Whether the owner chose to restrain the dog, and the manner in which the dog was restrained
4. Whether the dog was kept as a guard dog or a pet
Other factors that may be considered as proof of vicious propensities include why the dog attacked and the severity of the attack. Under some courts’ analysis, an unprovoked attack that caused serious injuries may be evidence that the animal has vicious propensities.
The above list does not include all factors that may be considered. Dog bite cases can be very fact specific and, as a result, there a large number of factors that have been addressed regarding this subject.
