The results of personal injury cases outside of Western New York may impact how cases are handled here in Buffalo, so we keep track of them.
In December of 2009, Juanita Clotter was awarded $1.6 million for past and future pain in suffering in her case against the New York City Transit Authority. Ms. Clotter, age 46, had fallen on a defective stairway leading into the New York City subway system and ruptured her quadriceps tendon. Surgery was required to reattach the tendon to her kneecap. At trial, it was established that five years later, she still could not walk without using a cane or crutches.
This amount was reduced on appeal from the $2.2 million for pain and suffering originally awarded to Ms. Clotter by the trial court. While the award for pain and suffering was reduced, the Appellate Court apparently still recognized the long term impact this type of personal injury may have on an individual.
Many of you will remember that Buffalo Bills running back Marshawn Lynch was involved in a hit-and-run accident in May of 2008 where he was accused of fleeing the scene after hitting a woman with his SUV after leaving a bar in the City of Buffalo. He eventually pleaded guilty to failure to exercise due care for a pedestrian and paid a fine.
The woman struck, Kimberly Shpeley of Ontario, Canada, has now filed a personal injury lawsuit in Erie County Court. She is alleging that she has suffered serious personal injury from being hit by Mr. Lynch’s vehicle and is seeking as yet unspecified monetary damages.
Many of you may wonder why, given that Mr. Lynch pleaded guilty to a traffic ticket over a year ago, Ms. Shpeley has taken so long to file her lawsuit. In a personal injury case, an injured person has three years from the date of the injury to proceed in court. While any specific reason Ms. Shpeley waited over a year would be mere speculation, it is not unusual for there to be a delay before a lawsuit is filed.
Reasons for delay may include waiting until she and her doctors have a better understanding of the extent of her injuries or because the parties are attempting to resolve the matter without having to resort to court intervention. Whatever, the reason, Ms. Shpeley is well within the time frame within which she is allowed to file a lawsuit in New York State.
Loss of consortium is a claim for monetary damages that may be made by the spouse of an individual who has suffered a serious personal injury. It may be made when, as a result of his or her injuries, the injured person is rendered incapable of providing his or her spouse with services, companionship, love, affection and sexual relations at the same level as before the accident.
These categories are obviously very broad and may cover a variety of things. For example, a woman who performs most of the cooking and cleaning duties at her home seriously injures her back after slipping on a wet floor at a restaurant in Buffalo. She is no longer able to perform these duties, and her husband must take on her responsibilities to maintain their household.
When her case is sued in Erie County, not only may her personal injury attorney seek monetary compensation for her injuries and resulting limitations, but compensation may also be sought for the husband based on the additional burden his wife’s injuries have placed on him.
Punitive damages are damages awarded above the amount actually needed to compensate an individual who has been injured in Buffalo or elsewhere. They are granted for the purpose of punishing the defendant and deterring similar conduct in the future. Generally, for punitive damages to be granted, it must be established that the party responsible for your injury acted maliciously or with a complete indifference to your safety.
If you are injured in a car accident in Buffalo, for example, you normally would not seek punitive damages because, in most cases, there will be no evidence that the other driver harmed you maliciously or was completely indifferent to the safety of others. If, however, you are injured in the workplace and there is proof that the company was not only aware of the hazard, but also took steps to hide the risk, you may pursue punitive damages.
When a large number of people have been injured by the actions of a company, it may be to their benefit to bring their claim against the company as a group instead of individually. This is referred to as a class action lawsuit.
Many such lawsuits involve individuals from different geographic regions, so even if, for example, you suffered physical injury from the actions of a company while living in Buffalo, you may end up entering into a case involving people from around the state or even the country.
Not all class action lawsuits involve physical injury to individuals, they may also involve issues such as illegal hiring practices. Examples of well known class action lawsuits that do involve physical injury or wrongful death would include cases against pharmaceutical companies for drugs that prove to have dangerous side effects and cases against tobacco manufacturers.
If you join a class action lawsuit, you will usually have to sign papers forfeiting the right to sue the company as an individual. If you and the other individuals are awarded monetary damages, the money received from the company is typically divided up based on the amount of damage to each individual. In other words, in most cases not all of the individuals are entitled to equal compensation. Instead, those who suffered more harm will receive greater compensation than those who suffered less harm.
In our years of experience as personal injury attorneys in the Buffalo area, we have found that many people do not ask this question until it is too late. SUM insurance stands for Supplementary Uninsured/Underinsured Motorist insurance, and is required to be a part of your automobile insurance policy under New York State law. This means that if you are struck by a driver who does not have automobile insurance, your own SUM insurance provides you with coverage.
SUM insurance may also be used, however, in cases where a negligent driver does not carry enough insurance to provide adequate monetary compensation for the damages he or she has caused. This SUM insurance may only be used when the full amount available under the negligent driver’s policy is exceeded, and only pays any difference between the amount of SUM coverage you have and the amount paid by the other driver’s insurance.
For example, you are involved in a personal injury car accident in Erie County and suffer injuries worth more than $25,000. The negligent driver only carries $25,000 in bodily injury coverage, but you carry $75,000 in SUM coverage. If the negligent driver’s insurance pays the entire $25,000 in coverage, you may then seek from your insurance company up to $50,000 in additional compensation, which is the difference between the other driver’s bodily injury policy and your SUM coverage.
In our experience, many people are not aware that they can seek this additional coverage through their own insurance company. If you are injured by another driver, it may be to your benefit to carry more than the minimum SUM coverage.
While the other driver may always attempt to blame the seriously injured party in a personal injury accident, the courts in New York State, including the courts having jurisdiction over Western New York and Buffalo, have ruled that in cases where a driver is involved in a rear-end collision with a stopped vehicle, it establishes what is termed a prima facie case that the accident was the result of negligence on the part of the driver of the rear vehicle.
This means that, instead of you or your personal injury attorney having to submit evidence proving that the other driver was negligent, the other driver must submit some explanation for the accident that would tend to establish he or she was not negligent. If the rear driver cannot provide such an explanation, it is presumed that his or her negligence caused the accident.
Yes, if your injuries are serious enough. New York State allows an injured party to file a personal injury claim if a pre-existing injury was exacerbated as a result of an accident brought about by the negligence of another party. So, for example, if you slipped in an icy parking lot at a business in Buffalo and re-injured your back, you could bring a personal injury suit in Erie County against the owner of the parking lot and any individual or entity the owner had hired to maintain the parking lot in a safe manner, such as a snow removal service.
Keep in mind, however, that exacerbation of a pre-existing injury may be much for difficult to prove than a new injury, and the fact that you were previously injured may reduce the amount of any monetary damages in your case. If you have a pre-existing injury and are considering suing, you should consult an experienced personal injury attorney who can help you determine the strength of your case.
It usually means that your personal injury attorney thinks that you have a good case. A motion for summary judgment is a formal request to the judge handling your case, such as an Erie County Supreme Court judge in a case arising from an injury in Buffalo, to find that there are no disputable issues of fact in your case and, as a result, a trial is not necessary for the court to find that the other party is responsible for your injuries.
To make this motion, your personal injury lawyer will send documentation to the judge that he or she believes establishes either that there is no defense to the cause of action or that any defense raised by the other party has no merit. The other party will have the opportunity to respond to the motion before the judge makes any decision. If it is determined that there are no issues in the case that can reasonably be disputed, the judge may grant the motion and rule that your case has been proved without resorting to a trial.
Arbitration is a way of settling personal injury cases in New York State without holding a trial. It involves the presentation of evidence regarding issues such as the cause of a personal injury, and extent and treatment of the injuries and the damages to the victim to a panel of one or three “arbitrators” who will decide on the dollar value of the case.
An arbitration hearing will usually be held in a venue in the geographic region where the personal injury occurred, so, for example, if you suffer a personal injury in the Town of Amherst or the City of Buffalo, your arbitration would usually take place in Erie County.
Arbitration is somewhat like a trial, but less formal. For example, the parties may submit all medical records, but the actual testimony of the treating doctors is not required. Prior to entering into arbitration, the parties may agree on an upper and lower dollar value limit that will be paid in the case. The arbitrator is usually not informed of these agreed upon limits and may reach a decision on monetary damages that is outside of them, which would result in the damages be raised or lowered to fit within the agreed upon limits.
