Articles Posted in Glossary of Personal Injury Law Terms

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New York law requires all drivers to maintain policies of auto insurance with specific amounts of coverage. Since many drivers do not have the required insurance, state law also requires auto insurance policies to include uninsured motorist (UM) coverage. Underinsured motorist (UIM) coverage is optional under state law. In order for this system to work, the various parties must communicate with one another. An injured party must provide a notice of claim to the insurance carrier of the allegedly responsible party. If an insurance carrier disclaims or limits coverage, they must give notice to their policy holder and the injured person. These notices must be given within a “reasonable” amount of time. The precise meaning of “reasonable” is a matter of ongoing dispute.

Section 3420(f)(1) of the New York Insurance Law (NYIL) requires drivers to have maximum liability insurance coverage for a single auto accident in specific amounts. This provides compensation to others when the insured is at fault in an auto accident. State law also requires auto insurance policies to provide UM coverage in the same amounts. This applies when the insured suffers injuries caused by a driver who is not insured. UIM coverage applies when the at-fault driver’s insurance coverage is insufficient to cover the amount of damage they caused.

In order to make a UM or UIM claim, an injured person must notify their own insurance company of the accident, and of the other driver’s lack of coverage. The injured person must also provide evidence of the other driver’s fault. Before the injured party can notify their own insurer, however, they have to know that the at-fault party’s insurer is disclaiming or denying coverage. This assumes, of course, that the at-fault party has insurance coverage in the first place, and that they have notified their insurer of the claim. NYIL § 3420(d)(2) requires an insurer that is disclaiming or denying coverage to “give written notice as soon as is reasonably possible” to its insured and the injured party.
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Despite the old saying “You can’t fight city hall,” it is possible to recover damages in New York for injuries caused by the negligence of a government official or employee. In order to file suit against the state, a political subdivision (cities, towns, etc.), or a government official, an injured person must give a specific type of notice within ninety days of the injury. Failure to provide this notice may bar the claim altogether. Certain types of injuries or claims might be subject to different rules. Anyone who has been injured because of government negligence should understand the special requirements for municipal and state liability.

The legal doctrine of sovereign immunity prevents a government from being sued without its consent. This derives from an English common-law doctrine that held that the King could not be sued in his own courts. Every government in the U.S., from the federal to village levels, has consented to suit for various types of claims. Allowing suits for breach of contract, for example, allows private companies to feel comfortable doing business with governments. Laws like the Federal Tort Claims Act allows individuals to file suit for personal injuries caused by a government or government official.

The New York Court of Claims Act gives consent to certain types of lawsuits, and establishes the Court of Claims to handle those suits. Section 8 of the CCA waives the state’s immunity from liability, and “assumes liability…in accordance with the same rules of law as applied…against individuals or corporations.” Section 10(3) states that anyone claiming personal injuries must file their claim, or a notice of intent to file a claim, within a certain amount of time.
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Nursing homes provide care for some of the most vulnerable people in our society. Our legal system therefore holds them to a very high standard. When a nursing home fails to provide adequate care to a resident, it could be held liable for resulting injuries. The common-law theory of negligence, when applied to a medical professional like a doctor or nurse, is often known as malpractice. Nursing home residents in Westchester County and throughout New York are also protected by a state law that allows them to sue a nursing home that causes injury by depriving them of a “right or benefit.”

In order to prevail in a negligence claim, a plaintiff must prove several elements. First, they must establish that the defendant owed a duty of care to them, or to the general public. Doctors, nurses, and other medical professionals owe a duty of care to their patients as a matter of law. A plaintiff must also prove that the defendant breached the duty of care owed to them, and that this breach caused their injuries. This is often the most challenging part of a claim for nursing home malpractice in New York. A plaintiff must demonstrate that, without the defendant’s breach, the injury most likely would not have occurred.

Medical errors, such as prescribing or administering the wrong medication, or the wrong dosage of medication, could constitute a breach of a medical professional’s duty of care. In the context of a nursing home, many breaches involve neglect of a resident’s basic needs, such as food, water, hygiene, or social connection.
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New York’s “no-fault law,” found in § 5104 of the New York Insurance Law, limits a plaintiff’s ability to recover non-economic damages in an auto accident claim. “Non-economic damages” are often the greatest losses in car accidents and other injury cases. They go beyond direct expenses like medical costs and lost wages. They include an accident victim’s pain and suffering, emotional anguish, and other harms that often occur because of a serious accident. The no-fault law only allows recovery of non-economic damages in cases involving “serious injury.” New York courts regularly hear disputes over whether an auto accident injury meets the statute’s definition of “serious injury.” Two recent cases from the New York Appellate Division, Second Department, Buchanan v. Keller and Broadwood v. Bedoya, demonstrate the sort of evidence needed for certain “serious injury” claims.

Section 5102(d) of the Insurance Law provides a list of injuries that constitute “serious injury” under the no-fault law. The items on the list range from the specific, such as “death” or “dismemberment,” to the more ambiguous. Two of these items are subject to ongoing dispute in the courts:
– “Permanent consequential limitation of use of a body organ or member” (PCL); and
– “Significant limitation of use of a body function or system” (SL).

A defendant moving for summary judgment on a “serious injury” claim has a prima facie burden of demonstrating that a plaintiff’s alleged injury does not meet the statutory definition. A plaintiff can counter this by establishing a “triable issue of fact.” In a 2009 decision, Staff v. Yshua, the Appellate Division, Second Department found that the defendant met this burden through expert testimony. The defendant presented an affirmation from an orthopedist who examined the plaintiff and concluded that their “injuries were now resolved and without permanency.” The court held that the plaintiff “failed to raise a triable issue of fact” in opposition to the defendant’s evidence. In a case from 2011, Jilani v. Palmer, the court found that the plaintiff had met their burden by producing an affidavit from a chiropractor that challenged the findings of the defense expert.
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Owners of real property owe a duty of care to people invited onto their property under the legal theory of “premises liability,” a common-law doctrine derived from the theory of negligence (i.e., the absence of ordinary care). Premises liability generally holds that a property owner has a duty to maintain their property in a reasonably safe condition, and may be liable for injuries caused by a hazardous condition. The “trivial defects” doctrine is an important exception to New York premises liability. It holds that a property owner is not liable if the defect, when examined in light of the unique circumstances of the site, is not objectively dangerous. The New York Court of Appeals has held on several occasions that this is a question of fact best left to a jury. Courts in New York’s 9th Judicial District, whose jurisdiction consists of Westchester, Dutchess, Orange, Putnam, and Rockland Counties, have considered several claims recently involving the trivial defect doctrine, and have often sided with plaintiffs.

In a negligence claim, a plaintiff has the burden of proving four elements. First, the plaintiff must establish that the defendant owed a duty of care, either to the plaintiff or the general public. Second, they must demonstrate that the defendant breached this duty of care. Third, they must show that this breach was the cause-in-fact of the plaintiff’s injuries. Finally, the plaintiff must substantiate measurable damages resulting from their injuries.

Premises liability involves a particular duty of care, from a property owner to individuals who have been invited onto the property. In some situations, such as the “attractive nuisance” doctrine, this duty of care also extends to trespassers. A plaintiff must show that the property owner knew or should have known about a defect or hazard on the property, and that they breached their duty of care by failing to repair the defect, insufficiently repairing it, or failing to warn visitors about it.
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New York Trials are structured differently in Manhattan and Bronx personal injury cases than they are in the remainder of the lower Hudson Valley and other boroughs of New York City. In a New York County construction accident, or a Bronx slip and fall case, for example, there are “full trials”, meaning that all issues are litigated before a jury in the same trial: issues as to the fault of the parties, as well as the injuries suffered by the plaintiff, the treatment performed by the doctors involved and the all damages issues involving the permanency of the injuries.

Conversely, in Queens County, for example, as well as the lower Hudson Valley jurisdictions such as Westchester County, Dutchess County, Rockland County, and Orange County, to use some examples, except in rare instances, trials are “bifurcated.” Bifurcated means split into two parts. So, as an example, in a Westchester County motor vehicle accident, the jury first hears testimony and considers evidence only of the negligence or fault of the parties involved in the car accident, and first makes a decision as to whether the defendant(s) and or the plaintiff are legally responsible for the accident. (For a description of how we prove the defendant’s negligence in a personal injury case, please see our November 13, 2007 blog entitled “Burden of Proof in New York Personal Injury Cases”). It is only if a jury finds the defendant(s) partially or wholly at fault for the accident in a bifurcated trial that a jury then decides the amount of damages to award the plaintiff in a bifurcated case.

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A subpoena is a command for the person receiving this document to appear in Court or at a deposition, either to give testimony or to bring documents. A failure to comply with the subpoena can result in a financial penalty to the person subpoenaed, or in extremely rare instances, to a short jail stint for contempt. A subpoena “duces tecum” is a Latin term meaning that the recipient must bring documents to Court, or to a deposition in a lawyer’s office. A personal subpoena is a command to appear in Court or a deposition to give sworn testimony. In New York, a frequent use of a subpoena is to command the “non-party deposition” of a witness to an accident.

Our office recently used a non-party subpoena in a Brooklyn slip and fall case, to obtain the testimony of a passerby who observed our client fall, and also noted that landlord had failed to apply salt or sand to the patch of ice where the accident occurred. If a witness is reluctant to become involved in a case, there is often no other alternative to ensure that this person appears in Court other than a subpoena. Years ago, we were involved in a Bronx construction accident in which our client had fallen from a ladder and suffered very serious injuries. A co-worker was aware that he ladder was in very poor condition, but refused to appear in Court voluntarily. Therefore, in order to get this vital testimony before a jury, we were forced to subpoena this witness to Court.

As for the subpoena duces tecum, this is often used to compel medical providers such as hospitals, physicians, physical therapists, or chiropractors to provide their records of treatment of plaintiffs in New York slip and fall accidents, car accident cases, New York medical malpractice cases, defective product cases, or New York trucking accidents, to name a few.

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In New York personal injury cases, such as a Brooklyn slip and fall accident, Bronx motor vehicle accident, or a Westchester construction accident, probably the most important legal procedure in the case before trial is the deposition. In a deposition, also known as an Examination Before Trial (EBT), the parties to a lawsuit, or witnesses to an accident, are placed under oath and asked questions about the accident, the injuries suffered by the Plaintiff, and generally everything they observed on the date of the car accident, trip and fall accident, or fall from a scaffold or ladder, to use a few examples.

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Negligence is a very common term in New York law, but clients are frequently unsure what this term means. Negligence means a lack of reasonable care which one person owes to another person. It is failing to foresee or anticipate that the wrongdoer’s risky conduct will cause injury to another. Negligence is not intentional or willful conduct, which also creates liability and can lead to legal responsibility for injuries caused. In order to recover personal injury damages in New York however, not only must negligence be proven, but it must also be proven that this negligence was the legal cause of injury or damages to another person.

Specific examples of New York negligence include: A driver causing a Brooklyn car accident by going through a traffic light; a landlord causing a Bronx slip and fall accident on an icy staircase by failing to apply sand, salt or otherwise remove the ice despite his knowledge of the condition; an owner of a dog allowing a Westchester dog bite when the dog had bitten a child one week earlier.

Negligence is not intentional or willful conduct, which also creates liability and can lead to legal responsibility for injuries caused. Examples of intentional conduct would be an assault at a bar, or libel, in which the wrongdoer intends to cause the injury, rather than accidentally causing the injury.

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The Statute Of Limitations In New York is a legal term which means the time in which a lawsuit must be started to be legally sufficient. In New York State, there are numerous statutes of limitations for various different types of cases. For example, in New York motor vehicle accident cases, the statute of limitations is three years from the date of the accident. This means that even if the case is filed one day past the three year anniversary of the motor vehicle accident in New York, the case is legally defective and will be dismissed.

In New York medical malpractice cases, there is more than one type of statute of limitation, but a classic example of a doctor performing surgery on the wrong body part would have a statute of limitation of two and one half years from the date of the last treatment with that doctor.

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