When property owners in the City of Buffalo are informed that there is a potentially dangerous condition on their property, they will usually take steps to correct it. This is particularly true when the dangerous condition causes an injury.
While it may seem that the act of repairing the problem could be used as evidence in court that the defendant was aware of the problem, the New York State Court of Appeals ruled long ago that this is not so. In 1888, New York’s highest court ruled in the case of Franklin v. New York Elevator Company that subsequent remedial measures cannot be used to demonstrate a defendant’s knowledge of an unsafe condition prior to the accident. As a result, they do not prove that the defendant had a duty to take reasonable steps to warn against or prevent injury, and they are not admissible as evidence.
Evidence of subsequent repairs is only admissible when there is a dispute regarding who controlled the property where the accident occurred. If the defendant denies control over the area, evidence that the defendant arranged for subsequent repairs is admissible because it would tend to indicate that the defendant did, in fact, control the area.
If you have been injured on someone else’s property and have any questions, please feel free to call my office at 716-542-5444. We would be happy to help you.
Punitive damages are additional compensation awarded when a defendant’s conduct was intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence. Most Buffalo personal injury lawsuits do not involve a claim for punitive damages.
This is because the purpose of punitive damages is not to compensate the injured person for the harm done to them, but rather to punish the defendant for his or her conduct. They are separate from the compensation for medical expenses, lost wages and pain and suffering awarded in most personal injury cases.
Punitive damages require that the defendant’s conduct go well beyond mere negligence in causing the injury. They are only warranted when the defendant acted in a malicious or wanton and reckless manner. An act is considered malicious when it is done deliberately with the intent of interfering with the plaintiff’s rights. An act is considered wanton and reckless when it is done in such a way and under such circumstances that it shows a conscious indifference and utter disregard for its effect upon the safety and rights of others.
The State and its political subdivisions may not be sued for punitive damages. If you have been intentionally or maliciously injured by another and have any questions, please feel free to contact my office at 716-542-5444. We would be happy to help you.
When a Buffalo family suffers the loss of a loved one in an accident, the emotional difficulty of dealing with that loss often is only the beginning of their problems. If the deceased individual was relied upon to provide the family with financial support, the loss may lead to long term economic hardship in addition to emotional trauma.
Fortunately, if the family member was lost as a result of the negligence of another party, the family may be able to recover damages as compensation for the income and support that individual would have provided had they not died. To obtain fair compensation for the family, there are several factors that must be presented to the judge or jury making the determination.
These factors include how many years the individual would have been expected to work, his or her income and likely future income, fringe benefits, such as health insurance, that must be replaced, and household services provided by that individual that now must be performed by someone else. The total dollar amounts allocated from these factors may, in turn, be reduced by items such as the amount of income that would have gone towards that individual’s personal support and, possibly, projected future income tax payments.
If your family has suffered a loss and you have any questions, please feel free to call my office at 716-542-5444.
Photographs are often used in Buffalo premises liability cases to show the condition of the area where the injured person fell. If you have photographs, you should share them with your lawyer.
While not all photographs are admissible in court, it is usually not too difficult to have a photograph admitted as evidence in a civil case.
Generally, a photograph is admissible in court if it fairly and accurately depicts the condition of the area of the accident as it existed at the time of the accident. To have such a photograph admitted as evidence, it is not even necessary to have the person who took the photograph testify regarding its content. Instead, all that is needed is for any witness who observed the location at the time of the injury, such as the injured party, to testify that the photo fairly and accurately depicts the location at the time of the accident.
When a photograph is taken shortly after an accident that shows an open and obvious defect that would have existed for a substantial period of time, it may be used in court as proof that the party responsible for maintaining the property should have been aware of the defect. In this case, there must be testimony that the defect pictured was substantially the same as the one that caused the injury. Photographs taken long after the injury occurred are not admissible for this purpose.
Rarely do Buffalo personal injury attorneys conduct a trial without presenting the testimony of a doctor who treated the client. It is even rarer for cases without such testimony to be successfully tried. Recently, however, a New York State appellate court upheld a $100,000 award to David Barnes for pain and suffering in a case where no treating physician testified.
Medical providers are usually called by the plaintiff to provide testimony confirming that the injuries were caused by the accident, outlining how the injuries relate to the plaintiff’s complaints of pain and suffering, and explaining how much the plaintiff can be expected to suffer in the future. It is very difficult for plaintiffs to prove their pain and suffering claims, especially regarding future suffering, without such testimony.
In Mr. Barnes’ case, he suffered a broken jaw when the driver of the car he was in lost control of the vehicle. The court found that the driver was liable before the case was brought to trial, so the only issue presented to the jury was the amount of damages, if any, Mr. Barnes was entitled to receive.
At trial, the plaintiff’s testimony and medical records were used to establish the degree of the injury and the pain he suffered as a result. Despite the absence of medical testimony, the jury awarded him $100,000 for past pain and suffering and $100,000 for future pain and suffering over the next 25 years. This award was reduced by half based on the plaintiff’s own contribution to his injury by not wearing a seatbelt.
The defense appealed this award, but the appellate ruled the jury’s conclusions were reasonable and upheld the verdict. While we generally would not recommend following this path in trying a personal injury case, it is an interesting aberration from the normal course such cases usually take.
Buffalo’s winter weather often leads to dangerous conditions for pedestrians. When a person is injured as a result of slipping in a parking lot shared by several stores, who is responsible will depend on the circumstances and any arrangements made by the owner for maintenance of the property.
First, no one is expected to be able to immediately clear snow and ice from a parking lot, and the law does not require them to do so. The dangerous condition must have been present long enough that it should have been discovered and corrected for a lawsuit to be successful. When someone falls while a storm is in progress, he or she may not be able to successfully proceed against anyone because the party responsible for clearing the area did not have time to correct the problem.
When the snow or ice was present long enough to be discovered but it was not removed, who is responsible will depend on any arrangements made between the owner, stores that lease the property, and any third party hired to clear and salt the area. In the case of plaza parking lots, the owner usually hires a maintenance contractor to clear the area. As a result, the individual stores would have no responsibility.
In this situation, you may be able to proceed against both the owner and the maintenance contractor. Whether the maintenance contractor bears any responsibility, however, will depend on the details of the contractual agreement between them and whether that agreement was fulfilled.
If you have been injured in a fall 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 owed damages following a personal injury accident, they do not always receive this money in one lump sum payment. New York State Law has specific provisions governing how future damages are paid.
Under the law, plaintiffs are entitled to payment of all past damages, attorney’s fees, and other expenses associated with the case in a single payment. If future damages awarded by the jury are less than $250,000, they also are included in this lump sum payment.
When future damages exceed $250,000, these rules change. The plaintiff still receives the first $250,000 as part of the initial payment, but the remainder is paid off over time. These payments usually are made in monthly installments. The formula used to calculate these future payments, however, is somewhat complicated.
Generally, the judge must look at how many years of future damages the jury stated its decision was based on. The annual payment for the first year is calculated by dividing the remaining future damages by the time specified by the jury. Annual payments after the first year are calculated by adding 4% to the prior year’s payment.
If damages were awarded for future pain and suffering, this portion of future damages may also be handled differently. Future damages for pain and suffering must be paid off in no more than ten years. If the jury based their future damages calculation on a longer time period, future pain and suffering damages will be calculated separately and paid out over a ten year period.
Given Buffalo’s easy driving distance to Canada and even Pennsylvania and Ohio, it is important for drivers to know if they will be covered if an accident occurs outside of New York State. The courts in New York State have addressed the issue of how insurance applies to accidents outside of the state.
The Court of Appeals, the highest court in New York State, has held that New York insurance carriers have an obligation to provide uninsured motorist coverage when an accident occurs outside of New York State. In doing so, the court noted that Insurance Law section 5103(e) requires auto insurers to provide coverage “at least in the minimum amount required by the laws of the (other) state.”
This responsibility to provide coverage at least meeting the minimum amount required by the other state has generally been interpreted in favor of the insured person. If the other state or Canadian province requires more insurance than the New York State driver has, insurance companies have been required to raise the amount of coverage provided to the level demanded by the laws of the other jurisdiction. Conversely, if New York State requires more coverage, the insured person is entitled to the full amount of coverage paid for should it be needed.
If you have been in an accident and have any questions regarding your insurance coverage, please feel free to contact my office at 716-542-5444.
Whether someone who has suffered a personal injury can pursue additional damages from the entity which provided a drunk driver with alcohol depends on the circumstances of each case. If you are seriously injured by someone who was drinking at a bar or restaurant in the City of Buffalo, under New York State Law you may be able to seek compensation from the business that chose to over-serve the drunk driver.
To successfully pursue a claim against a commercial business that serves alcohol, the injured party must be able to prove that the business continued to serve alcohol to the drunk driver when he or she was already visibly intoxicated. This may require the testimony of eyewitnesses, although in cases of extreme intoxication such testimony may not be necessary.
The right to pursue additional damages against the entity that provided alcohol does not extend, however, to individuals injured by someone who became intoxicated at a private residence. Private individuals who provide alcohol usually may not be sued if the intoxicated person then chooses to drive.
The major exception to this rule applies to individuals who serve alcohol to minors. New York State Law does permit claims against a social host who provides — or makes available — alcohol to a minor if that minor later injures someone due to his or her impairment or intoxication. Under such circumstances, the individual who provided the alcohol may be sued for full compensation of the injuries sustained.
If you are injured due to the negligence of the City of Buffalo’s government, the New York State government or the federal government, the rules surrounding your right to file a personal injury claim change significantly. It is strongly recommended that you consult an attorney experienced in filing such claims before proceeding against any government agency.
If you suffer an injury and the responsible party is a government entity, you have 60 days to report the claim. Many parties at all levels of government have some degree of protection from such claims, which may require an injured person to get permission before they can even start to proceed against them.
If you do not report your claim to the agency you feel is responsible within the 60 day timeframe, your opportunity to proceed against it will be over. As a result, if you are not sure which agency is responsible, it is best to file a claim with all agencies that may be responsible.
Once you have reported your claim, the government agency may then either accept or deny it. If they deny the claim, you then have the option of proceeding in court with a civil claim.
If you do sue, there are many other special regulations that must be complied with. Again, if you are in this situation you should give strong consideration to finding an experienced attorney to assist you. If you would like any additional information regarding this topic, please feel free to call my office at 716-542-5444. We would be happy to help you.
