Not all personal injuries that occur in Buffalo are clear cut. In many cases, while one party may have created a dangerous condition that led to the injury, the injured party may have been somewhat careless and put themselves in a position to be injured. Fortunately for the injured person, this does not mean they cannot recover any compensation for their injuries.
In New York State, it is still possible to recover some damages even when the injured person’s negligence contributed to his or her injury. In this situation, New York State law provides that the amount of damages recoverable shall be reduced by a percentage equal to the percentage that the conduct of the injured person bears to the overall conduct which caused the damages.
In other words, when compensation is being determined a “percentage of blame” will be assigned to each of the parties involved, and the damages will be reduced based on this percentage. For example, if you are found to be 25 percent at fault for an accident, you may recover 75 percent of the total damages awarded from the other parties.
As a result, even if you think you are partially to blame for your own injury, you should take steps to protect your right to recover from the other parties who were also responsible. If you have been injured and have questions regarding this topic, please feel free to contact my office at 716-542-5444.
A few months ago, we mentioned that New York’s highest court was hearing a case that may change the way some personal injury cases are handled in Buffalo. Well, the Court of Appeals has made its decision in Trupia v. New York Central School District, and the way similar cases are handled in Buffalo will now be changing.
The key issue here was the extent that the concept of “assumption of risk” could be applied. In many incidents involving sports or recreational activities that are voluntarily participated in, the defendant is able to have any personal injury case dismissed because the injured person assumed the risk of participating in that activity.
Some parts of New York State, including the Buffalo area, recently had begun applying this concept more broadly to include a wider range of voluntary activities. In Trupia v. New York Central School District, for example, a child was injured after sliding down a banister, and the defense sought dismissal of the case under the theory that because the child had chosen to do so, it was an assumed risk.
The Court of Appeals, however, found that the assumption of risk should not spread so far afield from athletic activities to include what it termed “horseplay.” While the child may have some responsibility for the injury, how far that responsibility extended should be determined under New York’s comparative negligence laws, which would allow a jury to weigh the responsibility of each party and assign a percentage of blame.
New York State’s highest court recently issued a ruling that may help many Buffalo area construction workers who are hurt while on the job. On February 11, 2010, the Court of Appeals ruled in the case of Gallagher v. New York Post that the defendant was liable for the worker’s injuries, and there was no factual issue to present to a jury regarding the issue of liability.
The plaintiff had been cutting a hole in decking on the second floor of a building when the blade stuck and he was propelled forward. He fell through an opening onto a temporary structure between floors and was injured.
Under New York State Labor Law, safety devices are required at construction sites when working at an elevation. Because the project manager had been told that safety harnesses were available and the ironworker was not wearing one, the defendant sought to have the case dismissed, arguing that safety devices were available but not used.
The tables were turned on the defendant, however, because the Court of Appeals found that there was no evidence that the workers themselves were ever informed that harnesses were available or had such safety devices directly issued to them. As a result, the Court of Appeals not only declined to dismiss the case, but found that the defendant was liable for the injuries to the defendant.
If you have been injured in the work place and have questions about what you should do to protect your rights, please feel free to call my office at 716-542-5444.
From some reason, there is widespread belief among dog owners in Buffalo and across the nation that if their dog only has bitten an individual once, they are not potentially responsible for the damages. This is not true.
In New York State, a dog owner may be liable for injuries caused by his or her dog if it can be proven that the owner knew, or should have known, that the dog had “vicious propensities.” While it may be easier to prove that a dog has vicious propensities if it bit someone before, there are other factors that may be a factor in making this determination.
Other actions by a dog that may be indicative of vicious propensities include a history of growling, lunging at people, and snapping or baring its teeth. It also should be noted that New York State law makes no distinction among breeds of dogs, so pit bulls or Doberman Pinschers are not automatically considered more dangerous than other breeds.
On the other hand, if it can be demonstrated that a dog regularly interacted with people and other pets without any history of displaying aggressive behavior, the owner may not be held legally responsible following only one biting incident. It all depends on the evidence of the dog’s overall behavior, not just whether it had bitten before.
If you or a family member have been bitten by a dog in the Buffalo area and have questions, please feel free to call my office at 716-542-5444. We would be happy to help you.
Buffalo residents know how difficult it can be to try to support yourself and your family under tough economic conditions. If someone is injured and unable to work, supporting yourself can be overwhelming. Fortunately, if that injury was the result of another’s negligence, the injured party does have some right to pursue compensation for lost wages.
This right, however, may be limited by the circumstances of the accident. Following a car accident, for example, lost wages initially may be paid by the injured party’s own automobile insurance. Because the lost wages are already being compensated, a claim cannot be made against the other driver for lost wages unless lost wages exceed the amount available from the injured person’s insurance.
In cases where a person suffers injuries that lead to long term or permanent inability to work, the injured person may also sue for future lost wages based on a projection of what his or her earnings would have been if the injury had not occurred. Given the financial difficulty a permanently disabled individual may face in the future, this may prove a very significant aspect of any lawsuit.
If you have been injured in an accident and have any questions regarding recovery of lost wages from the party who caused your injury, please feel free to call my office at 716-542-5444. We would be happy to help you.
When a personal injury case in the City of Buffalo is brought to trial, the manner in which the jury will be chosen is dictated by New York State Law and the rules of the court where the trial will take place. Here are some general rules on how a jury will be selected.
You will start with a pool of people for you and the defendant to choose from. Initially, these people will be questioned to see if anyone has any previous knowledge about the case, the parties involved, their lawyers or the witnesses. If they do, they may be dismissed “for cause.” Relatives and employees of the parties will also be dismissed, as will employees of a liability insurance company.
After this process is complete, the attorneys for each party will question the remaining jurors. These questions will frequently involve their experiences with injuries, medical providers, insurance companies, and their opinions about personal injury lawsuits. Based on their responses, some of these jurors may also be dismissed.
In New York State, an unlimited number of prospective jurors may be dismissed “for cause” if the lawyer requesting the dismissal can convince the judge that that person cannot rule fairly or objectively. Each lawyer also has three “peremptory challenges” that may be used to dismiss anyone without providing a reason. Peremptory challenges may be used by your lawyer when he or she feels a potential juror would not rule favorably for you but cannot present a specific reason why that would cause the judge to agree that there is “cause” to dismiss that individual.
Once both parties have agreed upon six individuals, these six people will constitute your jury.
Buffalo teenagers and their parents should be aware that in February of 2010, new rules went into effect in New York State changing the requirements for a teenager to obtain a driver license. These regulations were changed because of the disproportionate number of accidents, including accidents leading to personal injury and wrongful death, that could be attributed to teenage drivers.
New York State teenagers who have not already obtained a driver license now must follow different rules. Teenagers who obtain a learner’s permit at age sixteen will now be required to wait at least six months before taking the road test to obtain a driver license. The new law also increases the number of hours of driving that a teenager must complete before obtaining a driver license from 20 hours to 50 hours, with 15 of those hours taking place during the night.
Perhaps most importantly for teenage drivers, if you are driving with a learner’s permit or junior license, you are now limited to only one non-family passenger under the age of 21 in the car unless there is an adult in the front seat of the vehicle. This provision was enacted because of studies that demonstrated great increases in the likelihood of an accident for each additional teenager in a vehicle.
Hopefully, these new regulations will reduce the number of individuals injured or killed in motor vehicle accidents in New York State. If you have been injured in an accident involving a teenage driver and wish for more information on this topic, please feel free to call my office at 716-542-5444.
When a Buffalo resident is injured as a result of, for example, slipping at a department store or tripping over a broken sidewalk, he or she must prove that the party responsible for maintaining the area where the fell took place had “notice” of the condition that led to the fall. If it cannot be proven that the responsible party did have notice, then that person or business cannot be successfully sued for damages.
Notice is the legal term which means the business or municipality was aware that the dangerous condition leading to the accident had existed for some period of time, but still failed to repair that condition. In New York State, there are basically two different types of notice that may come into play in slip and fall cases: Actual and Constructive.
Proof of Actual Notice requires evidence that the defendant was informed, in writing or verbally, that the dangerous condition existed. Obviously, absent a witness coming forward, this can be difficult to prove. Actual Notice may also be established if the defendant actually created the condition, such as digging up an area where people walk during construction and leaving it open.
Fortunately, many slip and fall cases do not require that Actual Notice be proven, but instead require proof of Constructive Notice. Constructive Notice requires evidence that the defendant knew, or should have known, about the condition leading to injury. Proving that a defendant “should have known” about a particular situation, such as reoccurring instances of water pooling on a walkway, is much easier than proving that they had actually been informed of the condition. All that is required is proof that the defect was there long enough that the defendant should have discovered and corrected it.
Buffalo personal injury cases can be complicated. They may involve a number of witnesses, medical providers or other parties with information relevant to the case. If you are involved in a personal injury case, your lawyer may need to subpoena some of these individuals at various points as the case progresses.
A subpoena is a document ordering a person to appear at a specific location, usually either in court or at a deposition, at a specific time. The subpoena may request that they appear to give testimony or to produce documentation in their possession.
Common instances where a subpoena may be used to obtain testimony include cases where there was a witness when the injury occurred, but that individual is reluctant to become involved in the case. A subpoena for documents may be used when seeking records of treatment from medical providers or records from a business where an accident occurred.
If a person fails to comply with a subpoena, it may result in that individual having to pay a financial penalty or, possibly, being required to serve a short time in jail for contempt.
If you have any questions regarding subpoenas or any other aspect of personal injury cases, please feel free to call my office at 716-542-5444.
With the number of dog owners in the Buffalo area, dog bites are not that uncommon. If you are bitten by a dog and injured, there are a number of steps you should consider taking.
First of all, take care of yourself. You should seek immediate attention for your injuries, especially if they are serious. If you know the dog owner or can locate him or her, you should try to find out if the dog has had its rabies shot. Once you have taken care of your injuries, there are several actions you can take to help protect yourself if you need to bring a personal injury claim as a result of being bitten.
First, you should report the incident to the local police department so that a report can be prepared documenting it. If possible, obtain the name and address of the dog owner. If the owner is willing to share any information with you regarding his or her homeowner or renter insurance, you should obtain that also. Such insurance may provide coverage for your injuries.
If anyone saw the incident, you also should try to identify them and obtain their addresses of phone numbers. If these people are familiar with the dog, you should ask if the dog has previously exhibited behavior such as biting, growling or barking at people, or even jumping up on them. If you need to sue, this information could help establish that the dog was known to have dangerous propensities before it bit you.
Finally, if you are contacted by the dog owner’s insurance company, you should avoid signing any releases or statements regarding the incident. Doing so may limit your legal options in the future.
If you are bitten by a dog and have any legal questions, please feel free to call my office at 716-542-5444 regarding the incident.
