When it is clear cut which driver caused a Buffalo car accident, the police will usually issue a ticket to the driver who was at fault. Traffic tickets are not, however, issued for all accidents. Whether evidence related to the traffic ticket is admissible as evidence depends on how the charge was resolved.
If a driver pleads guilty to a traffic infraction related to a motor vehicle accident, that plea is admissible against that defendant in a later civil action as an admission of carelessness. If the driver does not plead guilty but instead is convicted of the charge after trial, however, then the conviction is not considered an admission or proof of carelessness. As a result, a conviction for a traffic infraction is not admissible either as evidence or to impeach a witness’ credibility. The rationale for not admitting a conviction after trial as evidence in a civil case is that because the outcome of the traffic ticket is a relatively minor matter, the defendant may not have contested it as thoroughly as he or she might have if more were at stake.
An acquittal for a traffic infraction after trial also is not admissible in a civil case. Thus, the defendant cannot introduce it as proof that he or she did not drive in the manner set forth on the traffic ticket.
These rules apply only to traffic infractions related to car accident injury lawsuits. Misdemeanor or felony charges, such as DWI, may be treated differently.
Doctors in the Buffalo area are busy people, and their job is to provide patients with proper medical treatment, not to spend their days giving testimony in personal injury cases. As a result, when a personal injury attorney needs testimony from a doctor, he or she will usually try to find a way around having the treatment provider personally appear to testify.
In some cases, an attorney may be able to use a sworn statement from a medical provider in place of having that person personally appear. This most frequently occurs if one of the parties makes a motion in court prior to trial which disputes some aspect of the injury.
In that situation, the attorney usually would not want, or need, to bring in a medical provider to testify at a hearing regarding the injury. Doing so would disrupt the medical provider’s working day and take up valuable court time. Also, because they are losing time from treating patients, medical providers will usually be paid for appearing in court, which can be expensive. In most cases, a written statement outlining the relevant aspects of treatment will be deemed sufficient evidence for the court to use when ruling on the motion.
Sworn statements also may occasionally be used when less formal methods of trying to resolve a case, such as an arbitration hearing, are being pursued. If, for example, an attorney wishes to clarify some aspect of the treatment, he or she may ask the individual who provided the treatment to submit a statement so that they do not have to appear and explain what occurred.
If you are undergoing medical treatment as the result of a personal injury and have any questions, please feel free to contact my office at 716-542-5444.
Depending on the nature of an injury, Buffalo personal injury attorneys may ask an injured client to show his or her injuries directly to the jury. Whether an injured person should be allowed to exhibit personal injuries has been an area of law that has been extensively contested.
In this situation, the defendant may argue that the exhibition should not be allowed because the sympathy it may generate among the jurors for the plaintiff may lead to undue prejudice against the defendant. This concern is especially expressed among corporate defendants, which by the very nature may have difficulty personally connecting with the jury. Nonetheless, if the nature and extent of the injuries is an issue at trial, in most cases the judge will allow the plaintiff to exhibit his or her injuries.
Properly authenticated photographs of an injury also are usually admissible as evidence.
Whether a plaintiff may demonstrate the effects of a personal injury to the jury, however, is a more open question. Such a decision will generally be left to the sole discretion of the trial judge. If there is a concern that the plaintiff may simulate a nonexistent limitation during the demonstration, that is sufficient reason for the judge to exclude it as evidence.
When a family in Buffalo suffers the loss of a loved one due to a wrongful act or negligence on the part of another, the personal representative of the estate may bring a lawsuit to recover damages. The personal representative is usually the executor.
If the personal representative of the estate refuses to pursue a claim, the distributees of the deceased individual are entitled to have an administrator appointed who will pursue the claim on their behalf. In most cases, such a claim must be pursued within two years of the wrongful death.
Generally, the estate of the decedent has a claim for the deceased individual’s pain and suffering, and the distributees have a claim for loss of income and services to the household that were provided by the decedent. The claim of the distributees is limited to economic loss and does not include an award for sorrow, mental anguish, injury to feelings or loss of companionship.
If damages are recovered and there are multiple distributees – for example, multiple surviving children – each distributee receives a proportion of the damages equal to his or her pecuniary loss. How much each person actually receives is determined by the court following a hearing on the issue.
If a member of your family has suffered a wrongful death and you have any questions, please feel free to contact my office at 716-542-5444. We would be happy to help you.
It can be easy for Buffalo personal injury attorneys to forget that sometimes their non-lawyer clients don’t know what they’re talking about. While most people would know what the word “presumption” means in normal conversation, it also has a specific legal meaning. Many clients would not be aware of this legal definition when the term is used in their case.
In legal terms, a presumption of law has been defined as a rule of law which requires that a particular inference must be drawn from a certain set of facts. Once this certain set of facts has been established at trial, following the inference is mandatory unless the other party submits sufficient evidence to the contrary.
As an example, suppose a person is injured in an automobile accident, and the driver who caused the injury did not own the vehicle he or she was driving. Under New York State law, once it is established who owned the other automobile, there is a presumption that the driver was operating the vehicle with that owner’s permission at the time of the accident.
As a result, the owner bears liability for the negligent actions of the driver by law. If the driver was not using the vehicle with the owner’s permission, the owner must present sufficient evidence to prove lack of permission if he or she is to overcome the presumption and avoid liability.
When a Buffalo injury victim wishes to pursue damages from a public agency, New York State law requires that a Notice of Claim be filed with the agency involved. In most personal injury cases, this Notice of Claim must be filed within 90 days of the accident that led to an injury.
A Notice of Claim, whether filed by an attorney or an individual seeking compensation, must contain the following information:
(1) the name and post-office address of each claimant, and of his attorney, if any;
(2) the nature of the claim;
(3) the time when, the place where and the manner in which the claim arose; and
(4) the items of damage or injuries claimed to have been sustained so far as then practicable.
When making a claim against a municipal corporation other than a city with a population of one million or more, the Notice of Claim does not need to state the amount of damages being pursued by the claimant. In this situation, however, the municipal corporation may at any time request a supplemental claim which sets forth the total damages being pursued.
If you have been injured due to the negligence of a public agency and have any questions, please feel free to call my office at 716-542-5444. We would be happy to help you.
Buffalo personal injury attorneys will usually ask a new motor vehicle accident client if an MV-104A was completed in their case. This form can be very useful to an attorney in gathering details regarding the accident.
The MV-104A is a New York State Department of Motor Vehicles form that is completed by the member of law enforcement who is investigating an automobile accident. It contains information such as the names and addresses of the parties involved, who owned the vehicles, weather conditions, insurance information and the time and location of the accident. It also includes the officer’s description of how he or she believes the accident occurred. Occasionally, the names of any witnesses, along with contact information, may be included.
While the MV-104A itself is not admissible as evidence of how the accident occurred, it can be useful to a personal injury attorney in preparing the case. If you are pursuing damages from a motor vehicle accident and have a copy of this form, you should provide it to your attorney. Otherwise, a copy of the form can be obtained directly from the Department of Motor Vehicles.
Drivers involved in motor vehicle accidents are required to complete a slightly different version of this form, the MV-104, for submission to the Department of Motor Vehicles. If you are involved in a personal injury case, you should consult with your attorney when completing this form.
Buffalo personal injury attorneys have several methods that may use to discover information from the opposing parties. Interrogatories are one of the more uncommon methods used in personal injury cases.
Basically, interrogatories are a series of questions that one party submits in writing to another party requesting information that they believe is relevant to the case. The party receiving the questions is then expected to provide a response under oath. While interrogatories are frequently used in federal court, New York State law imposes limitations on interrogatories in state court cases that have made them much less prevalent.
First, in cases where negligence is the grounds for a claim of personal injury, injury to property, or wrongful death, a party must choose whether he or she wishes to submit interrogatories or conduct a deposition of the other party. A deposition requires that the other party personally appear and answer questions, which is often preferred by New York State attorneys because it gives them a chance to personally observe how that party handles providing testimony.
Also, New York State law bars a party from asking another party in a personal injury lawsuit to respond to both interrogatories and to a Request for a Bill of Particulars. Since the type of questions that may be posed in these two documents often overlap, it is usually preferable to submit the Request for a Bill of Particulars and still be able to conduct a deposition of the other party instead of just submitting interrogatories.
Under New York State law, most Buffalo personal injury lawsuits must be brought within three years of the injury. There are, however, exceptions to that rule.
For many years, there was no provision under New York State law for the types of injuries, such as certain cancers, that may take years to develop following exposure to dangerous chemicals. The date of the injury was considered to be when the individual was exposed to the chemical, and if the resulting illness was not discovered within three years of exposure, the injured person could not pursue damages. Given that certain illnesses may take more than three years to appear, this was grossly unfair to the injured individuals.
Because of this unfairness, New York State’s law was changed in 1986. Now, when an injury is caused by direct or indirect exposure to a substance by absorption, contact, ingestion, inhalation, implantation or injection, the three year period within which an action must be commenced to recover damages for injury caused by the latent effects of such exposure is computed from the date of discovery of the injury by the plaintiff, or from the date when through the exercise of reasonable diligence the injury should have been discovered, whichever is earlier.
If you have suffered an injury as a result of exposure to dangerous chemicals and have any questions, please feel free to call my office at 716-542-5444.
It is not unusual for a Buffalo personal injury lawsuit to involve a dispute over what documents or other evidence will or will not to be disclosed to the other party. When this happens, the party seeking the evidence will usually request that the Court intervene and determine whether the evidence must be provided.
Even if the Court determines that the evidence must be turned over, there is not necessarily any additional sanction to the other party. Section 3126 of the Civil Practice Law and Rules, however, does provide for sanctions when a party fails to comply with a court order for disclosure or wilfully fails to disclose information. In this situation, the sanctions that the Court may impose include:
1. An order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or
2. An order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or
3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.
If you have been injured and have any questions regarding this topic, please feel free to call my office at 716-542-544.
