Most Buffalo personal injury lawsuits revolve around the issue of whether the defendant caused an injury due to his or her negligence. In a legal sense, to find someone negligent requires that they be found to have failed to use the same standard of care that an ordinary person would be expected to use under similar circumstances. In most cases that do not involve someone deliberately inflicting harm, the defendant must be proven negligent to be found liable for damages to the injured person.
In rare cases, the standard that must be proven to obtain damages from the defendant is not negligence, but reckless disregard. This higher standard is most often seen when injury is caused by an emergency vehicle on an emergency call. Such vehicles are permitted to violate certain rules of the road and if they cause an accident when doing so, they must be shown to have been acting with reckless disregard for the safety of others before the injured person may obtain compensation.
Reckless disregard has been defined as the intentional performance of an action with conscious indifference to an obvious risk that created a high probability of injury. It requires proof that the defendant was aware that harm was likely to arise from his or her actions, but deliberately chose to proceed anyway.
If you have suffered a personal injury, we can help you with your legal questions. Please call us 716-542-5444.
The parties to Buffalo personal injury lawsuits are encouraged under New York State law to engage in open and fair exchange of information. When a party fails to turn over documentation, it is largely at the discretion of the court to determine what, if anything, constitutes an appropriate sanction.
Generally, when a party fails to produce a document, it may not be used against that party unless the jury is satisfied that (1) a document is in their possession that is important to an issue in the personal injury lawsuit and (2) there has been no reasonable explanation for failing to produce the document. If these criteria are met, the jury may infer that the document would not have supported that party’s position.
Where a party has deliberately destroyed evidence, however, there may be an inference of fraud. When this occurs, the party may be limited in the evidence it can submit and there is an even stronger inference that the document would not have supported the party that destroyed it.
In most personal injury lawsuits in Buffalo, the need for such sanctions is rare. It is very unusual for a party to refuse to turn over evidence, especially when the other party seeks a directive by the court to produce it.
If every Buffalo personal injury trial required that all possible issues in the case be disputed, the courts would become bogged down with lengthy trials in which irrelevant points were being contested. As a result, our trial system has developed in such a way that most trials will only involve a few contested points.
Generally, the entire process leading up to trial is – to some extent – designed to narrow the issues that will be contested at trial. In most cases, the parties will actually agree on many of the underlying facts in the lawsuit. After going through the process of exchanging information and deposing various witnesses, there may be even more facts that the parties agree upons. As a result, there are usually only a handful of facts actually in dispute that will be heard at trial.
When certain facts are not in dispute, the parties may stipulate to these facts prior to trial, which removes them from being at issue and simplifies the trial. In some cases, the court itself may determine that certain facts or issues are beyond dispute and rule that they have been decided upon as a matter of law prior to trial, also removing them as issues.
If you have suffered a personal injury and need help, please call us. We can be reached at 716-542-5444.
One of the more difficult areas in Buffalo personal injury lawsuits is obtaining just compensation for injuries to the same part of the body where the victim had previously received medical treatment. A prior injury or medical condition in the same area – especially one that required ongoing treatment – will frequently result in the defense arguing that the injured party’s condition is fully the result of the prior condition and unrelated to the personal injury accident.
While prior injuries do make a lawsuit more complex, you are still entitled to recover damages to the extent that the accident exacerbated a pre-existing medical condition or caused a new injury to the same part of the body. Doing so, however, may require a judge or jury to determine the degree to which your medical expenses, lost wages and pain and suffering are related to the personal injury accident and not the prior condition.
Under such circumstances, medical evidence of an actual change in your condition is instrumental to obtaining full and fair compensation. This may require testimony from your treatment providers who can describe your condition before and after the accident.
If you have suffered a personal injury and are having difficulty obtaining fair compensation, please call us. We can be reached at 716-542-5444.
When a Buffalo resident is involved in a personal injury accident, his or her medical condition must be put in dispute to proceed with a personal injury lawsuit. Most of us are used to our medical treatment being a confidential matter between the patient and the physician. Once a person’s medical condition is at issue, however, this full confidentiality no longer applies.
For your medical information to be released to the parties, however, they must be authorized by you to obtain copies of your medical records. These authorizations must comply with the terms of the federal Health Insurance Portability and Accountability Act, which governs the release of medical information. The requirements for a proper authorization include that it specify the identity of the medical provider being authorized to release the information and the identity of the party authorized to receive it.
As a result, you will usually need to a separate document authorizing the release of medical information from each medical provider to each party involved. If there is only one defendant involved, this means that a full set of authorizations for every medical provider must be signed for your personal injury attorney (who will want a full set of medical records), and the defense. If there is more than one defendant, a full set of authorizations will have to be executed for each additional party.
If you have suffered a personal injury and have any questions, please feel free to call us at 716-542-5444. We would be happy to take your call.
Buffalo personal injury lawsuits can involve a number of different experts. Generally, when the parties are employing an expert for some specific purpose and the opposing party has requested all information regarding experts, disclosure of that information early enough that the opposing party has time to prepare for that expert’s testimony is encouraged. Failure to do so, however, does not necessary bar that expert from presenting testimony.
New York State law provides that, upon request, each party identify anyone they expect to call as an expert witness at trial and disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which the expert is expected to testify, the qualifications of the expert witness and a summary of the grounds for his or her opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice, the party shall not be precluded from introducing the expert’s testimony solely on the grounds of noncompliance.
As a result, bringing in an expert at the last minute does not necessarily bar the presentation of that expert’s testimony in a personal injury lawsuit, and courts often allow such testimony with the possible imposition of a court-specified penalty or other ruling that attempts to limit the impact of the last minute presentation of the expert.
Many Buffalo personal injury lawsuits involve motions made to the court by one or both parties regarding various issues in the case. When personal injury attorneys use the term “Memorandum of Law,” they are usually referring to a document prepared by a lawyer that accompanies the written motion to the court.
In a Memorandum of Law, the lawyer will provide the court with a legal argument that it believes supports his or her client’s position. This legal argument will typically include references to the legal authority that the lawyer believes is relevant to the determination of the motion. The memorandum may, for example, cite specific statutes that support the argument or ask the court to consider rulings made in other courts regarding disputes that bear some similarity to the issue in question.
It is not absolutely necessary for a Memorandum of Law to accompany every motion made by a lawyer, although it is helpful in framing the issue for the court. Also, while a Memorandum of Law is traditionally a separate document from the attorney’s affirmation or affidavit which sets forth the facts it believes support the motion, in some cases attorneys will combine the two into one document.
We can answer your legal questions regarding personal injury lawsuits. Please call us at 716-542-5444.
Buffalo personal injury accidents involving tractor trailers are scary events. Fortunately, they are also much less common than collisions between passenger vehicles. A recent study has determined that this is not just due to there being fewer trucks on the road than passenger vehicles, but also due to better driving by truck drivers.
According to researchers at the Federal Motor Carrier Safety Administration, there were 3,446 fatal accidents involving truck drivers in the United States in 2010. The police reports regarding these accidents cited the truck driver’s actions – such as inattention, lack of sleep or traffic violations – as a contributing factor to the accident in only approximately one-third of these fatal accidents.
In contrast, the actions of nearly two-thirds of passenger vehicle drivers were listed as a factor contributing to fatal collisions involving passenger vehicles in 2010. This is a significant difference in percentages and, according to transportation researchers, demonstrates that truck drivers are statistically safer drivers than operators of passenger vehicles.
If you have suffered a personal injury involving a commercial truck, we would be happy to help you. Please call us at 716-542-5444.
Buffalo residents should be aware that GE recently recalled approximately 1.3 million dishwashers. The defective products recalled pose the risk of fire, and are being voluntarily recalled by General Electric. Seven fires have been reported to GE arising from this defect. Thankfully, no personal injuries have been reported.
The recalled models include dishwashers manufactured under the GE, GE Adora, GE Eterna, GE Profile and Hotpoint names. They were sold nationwide from March of 2006 through August of 2009 and came in black, white, bisque, stainless steel and CleanSteel finishes. Information regarding specific models can be found at http://www.geappliances.com/products/recall/dishwasher_2012/.
The heating elements in these dishwashers can fail, leading to fires. According to the Consumer Product Safety Commission, owners of these dishwashers should cease using the machines immediately and disconnect the electrical supply by shutting it off at the fuse or circuit breaker.
Recalled dishwashers should not be returned to the store. Instead, GE should be contacted with the model and serial number. They will be supplying either free repairs to the defective models or rebates toward new dishwashers.
If you have been injured by a defective product, we can help you. Please call us at 716-542-5444.
In most Buffalo personal injury lawsuits involving motor vehicle accidents, the defendants will be limited to the person who was operating a motor vehicle negligently and – if a different person – the owner of that motor vehicle. In some personal injury lawsuits involving drunk drivers, however, the establishment that served the drunk driver too much alcohol may also have some liability.
New York State law forbids the sale of alcohol to individuals who are visibly intoxicated. When someone who is visibly intoxicated is served alcohol and later injures someone in an accident caused by their intoxication, the establishment that violated the law by serving alcohol to that person may also be found liable.
Obviously, the biggest difficulty with such cases is establishing that the drunk driver was intoxicated at the time alcohol was served to an extent that the employees of the business should have noticed and declined to provide further drinks. This can be very difficult to prove in that the employees are aware that it is not in their interest to affirm that the defendant was visibly intoxicated, so other witnesses usually will need to be found who remember the condition of the drunk driver at the bar.
If you have been injured by a drunk driver, we can help you. Please call us at 716-542-5444.
