It is not unusual for Buffalo personal injury attorneys to face situations where the attorneys for the defense ask the judge to dismiss the case prior to trial. This request often comes in the form of a legal document called a motion for summary judgment, which can only be submitted within a specific time period.
In a motion for summary judgment, the defense will seek to establish that there is not enough evidence to support one or more elements necessary to prove a personal injury case. For example, they may claim there is insufficient evidence to prove that the plaintiff suffered a “serious injury.” If the judge finds that the defense is right, the case will be dismissed prior to trial.
Motions for summary judgment, however, may only be submitted to the court within a very limited time frame. By law, after the issue has been joined and the court becomes involved, the court may set the final date during which this motion be made. The date must be at least thirty days after a document called a note of issue has been filed with the court.
If the court does not set a date, as is often the case, then the time limit to submit a motion for summary judgment is 120 days from the filing of the note of issue. The defense may not submit such a motion after that date unless it can show “good cause” explaining why this delay took place.
Occasionally in a Buffalo personal injury lawsuit, the attorney for the injured party may be able to prove to the court prior to trial that there are no issues for the defendant to dispute in the case. When that happens, if no settlement is reached between the two parties, a trial may still take place that is limited to proving how much the injured party is owed in damages.
This situation may occur when the injured person’s lawyer makes a motion for summary judgment to the court prior to trial. A motion for summary judgment is a legal document submitted to the court arguing that there are no grounds to dispute many of the issues that must be proven in a case, such as whether the defendant was negligent and whether that negligence led to the plaintiff’s injury.
After the plaintiff’s lawyer submits this document and any accompanying evidence to the judge, the defendant may then submit a response attempting to establish that the challenged issues are disputable and should be heard by a jury. Thereafter, the parties appear before the judge to argue their positions and the judge makes a ruling.
In some cases, a judge may find that the plaintiff has proven that there is nothing to dispute aside from the amount and extent of damages. When this happens the judge may then order a trial to be held that is limited to just this issue.
The crash of Continental Connection Flight 3407 in Clarence Center last year resulted in the wrongful death of 50 individuals and impacted the lives of families throughout the Buffalo area. This week, during an appearance before the House Aviation subcommittee regarding the proposed merger between Continental and United Airlines, the CEO of Continental, Jeffery A. Smisek, instead found himself being questioned about Continental Airlines role in the crash.
In the sixteen months since the crash, it has emerged that the pilots of the plane, who were employees of Colgan Air, a smaller, regional airline hired by Continental to handle the flights, had not been fully trained in the use of the plane’s stall-recovery system. When asked about this fact, Mr. Smisek replied that Continental was not aware of the training deficiency and “That’s the responsibility of the FAA.”
Lawmakers were not satisfied with this response, leading to additional questioning regarding Continental’s commitment to safety and the monitoring of subcarriers that it hires. Continental’s CEO had never previously been questioned regarding his company’s conduct relating to the crash.
The airline crash has already resulted in the introduction of new legislation that should result in additional training requirements for airline pilots. It remains to be seen what impact, if any, CEO Smisek’s comments will have on pending lawsuits brought on behalf of the families of those who died in the crash.
As the summer swimming season in Buffalo arrives, a case involving the wrongful death of a teenager who drowned in a public swimming pool across the state has been sent down for a new trial. This sad case arose from the drowning death of Jeremy Williams, an eighteen year old who suffered from epilepsy and drowned after suffering a grand mal seizure while swimming. It will be retried because, although the City of New York was found to be 25% liable for Jeremy’s death, the original jury declined to award any damages for his pain and suffering during the eleven days before he died.
Pain and suffering awards can be much more difficult to address in wrongful death cases than in situations where the injured party survived and can attest to his or her degree of suffering. Generally, New York State law requires that for pain and suffering damages to be awarded, it must be demonstrated that the deceased had some level of awareness of his or her condition prior to passing away.
In Jeremy’s case, a doctor testified that hospital records indicated that during the 11 days he was hospitalized prior to his death, he could squeeze the nurse’s hand on request, mouth words, open his eyes in response to verbal and visual stimuli, and respond to touch and painful stimuli. He would turn his head in the direction of a voice calling his name and had some degree of brain function for several days following the incident. The doctor also testified that, in his opinion, Jeremy suffered pain in that time.
The appellate court found this unrefuted testimony sufficient to establish that pain and suffering should be awarded in this case and, as a result, the jury’s decision to award zero damages for pain and suffering was wrong.
Just as Buffalo personal injury attorneys must post a list of Client Rights and abide by them, New York State has also set forth a list of Client Responsibilities. These responsibilities are intended to ensure a good attorney-client relationship and help your attorney best represent you.
Just as the attorney must treat a client with respect, the client is expected to treat the attorney and staff with courtesy and respect. Clients also must be completely honest and truthful with the attorney. Without understanding the full story, an attorney cannot properly analyze how to proceed with a case.
A client must honor the fee agreement with the lawyer and maintain contact with the attorney, including providing any changes in contact information as soon as possible. A client has the right to withdraw from the attorney-client relationship, but must honor any resulting financial commitments. While clients should expect the prompt attention of their attorney, they should understand that attorneys have other clients who also need their lawyer’s attention.
Finally, clients must understand that an attorney must operate within the bounds of the law. If there is a conflict of interest or a client’s case is found to be without merit, the attorney can refuse to represent the client. An attorney can only agree to legitimate legal objectives and cannot advocate for a result that is unprofessional or contrary to the law.
All Buffalo personal injury attorneys are required by New York State to post a statement of Client Rights at their offices. If you are injured in an accident, you should be aware of your rights when being represented by an attorney. A summary of these rights is set forth below.
As a client, you have the right to be treated respectfully and with courtesy by your attorney and his or her staff. This applies regardless of race, creed, origin, color, age, religion, sex, orientation, or disability. You are also entitled, within the boundaries of the law, to have your case handled in the manner you wish.
Your lawyer is required to provide you with his or her undivided loyalty and to provide you with his or her professional opinion uncompromised by any conflict of interest. If a lawyer has a conflict of interest, he or she should not represent you.
In terms of the day to day handling of your case, you are entitled to have legal fees, expenses, and all other information fully explained to you in an understandable manner. You should expect to hear from your attorney regularly and to get a return phone call or a response to any correspondence within a reasonable time.
Finally, your attorney must abide by the attorney-client privilege and keep all information provided to the law office private and confidential.
If you have been involved in a personal injury accident and have any questions regarding your rights, please feel free to call my office at 716-542-5444. We would be happy to help you.
If you are involved in a car accident in the City of Buffalo and the other driver was at fault, you should, under ideal circumstances, be reimbursed for the damage to your car by the other driver’s insurance. It is not unusual, however, for insurance companies to offer less than you may feel you are entitled to. If this happens, there are a few avenues you can explore to receive full compensation.
First, if you have collision coverage through your own insurance, you can check with your insurance carrier to see to what extent they will compensate you. Your carrier may ask you to pay your deductible and later seek to recover that payment from the insurance carrier for the car that collided with you.
Second, you do have a right to file a lawsuit against the insurance company if they do not compensate you for what you think you are entitled to. If you choose to pursue this course of action, make sure you have evidence to support your claim of damages. Such evidence may include repair bills, estimates, photographs of the damage and the police report.
If you have been involved in an automobile accident and need legal advice, please feel free to call my office at 716-542-5444.
When a driver is Buffalo must react to actions of another vehicle or obstacle, the need to react quickly may, in some cases, absolve that driver of responsibility for any personal injury that occurs as a result. In New York State, an individual who must quickly react to an emergency situation, even if that reaction was the wrong thing to do under the circumstances, may be protected from liability under the Emergency Doctrine.
Generally, the Emergency Doctrine applies when an individual either is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or must make a speedy decision without weighing alternative courses of conduct. In such a situation, the individual may not be negligent if the actions taken were reasonable and prudent in the emergency context, even if these actions later appear to have been a bad decision, so long as that individual did not create the emergency situation.
An example of the application of the Emergency Doctrine would be a driver swerving to avoid a vehicle that has suddenly veered into his or her lane and striking another car or pedestrian as a result. In this situation, the driver must make a sudden decision to avoid a collision. Even if that decision leads to an injury, the driver may not be liable if it appeared reasonable for him or her to swerve without having time to really think about it.
Of course, in this situation the driver initially veered into the wrong lane and actually created the emergency situation may bear liability for the injuries caused. If you have been injured as a result of an emergency situation and have any questions, please consider consulting an experienced personal injury attorney who can help you assess who is responsible.
Because there are several Family Dollar Stores in the Buffalo region, Buffalo parents should be aware that the U.S. Consumer Product Safety Commission and Family Dollar Stores are recalling 1.8 million toy dart gun sets sold exclusively through Family Dollar. This decision was made following the asphyxiation deaths of a 9 year old boy in Chicago and a 10 year old boy in Milwaukee. The children inhaled the soft plastic dart and were unable to breathe.
The dart guns subject to the recall were imported by Henry Gordy International Inc., of Plainfield, New Jersey. Because Henry Gordy Int. refused to recall the dart guns, Family Dollar is now working with the CPSC to announce the recall. The dart guns are labeled as the “Auto Fire” toy target set and is sold with either an orange and yellow toy gun (item #P238) or a blue and yellow toy gun (item #9328). The set includes eight orange darts and a five inch target board with numbers from 1 to 20. The item number may be located on the side of the handle in raised lettering.
If you have one of these toy gun sets, you should either return the set to Family Dollar for a refund or discard it. If you need additional information, Family Dollar’s recall hotline can be reached during normal business hours at (800) 547-0359.
If you or one of your children has been injured by a dangerous product, please feel free to contact my office at 716-542-5444. We would be happy to help you.
When a Buffalo resident suffers a personal injury and his or her life is permanently changed, it can be difficult to grasp how a value can be placed on it. Nonetheless, that is exactly what insurance providers and, if the case is sued, lawyers must attempt to do.
Some damages, such as the cost of medical expenses and lost wages, are relatively easy to calculate. Others, such as the value of pain and suffering, can be extremely subjective and difficult to place a hard number on. There are also other variables, such as potential future medical expenses, that may come into play when determining the total value of damages in a case.
When attempting to determine the actual value of these more subjective items, lawyers will usually look into the value that New York State courts have recently placed upon similar injuries. Making such comparisons, however, requires consideration of several variables such as the age of the injured person and how long they will have to live with the injury, prior health and the likelihood of future recovery.
Insurance companies will often try to get injured individuals to accept a settlement that may look enticing, but is actually much less than the full value of the injury. If you have a personal injury matter, live in the Buffalo area and are not sure how to proceed, please feel free to contact my office at 716-542-5444. We would be happy to help you.
