February 28, 2011

Plowing Snow on Parking Lot

In the past, several cases have dealt with a frequently met requirement regarding the liability of a municipality in an area where a defect is present. The law says that a written notice of the defect must be given to the municipality before the liability of an injury from the defect can be imposed.

An exception to this law was recognized by the Court of Appeals in several cases. A recent case cited this exception stating that if the municipality created the defect through negligence, then they are not protected from liability.

The Court says that these statutes were never meant to exempt a municipality of liability where negligence is present. Piling the snow instead of removing it was a “cost-saving pragmatic solution,” but presented a “foreseeable, indeed known, risk of melting and refreezing.”

In the dissenting opinion, it says that prior written notice requirements are ‘a valid exercise of legislative authority.’ These notices are supposed to prevent negligence, and therefore injury. The dissent claims the written notice requirement did apply, and the case should have been dismissed.

February 2, 2011

Will My Case Go to Trial?

After being retained by people injured in car accidents, one of the first questions we often receive is, “will my case go to trial?” More often than not the answer is “maybe.” However, what we do inform clients, is that our firm prepares all cases as if they will go to trial. In our experience we have found that this is the best way to maximize the value of a case when negotiating with the insurance company. It is our belief that if the insurance company recognizes that you are prepared to litigate a case, they will treat your case more seriously and ultimately value you it higher.

There are three main factors that help determine if your case will go to trial. Those factors are as follows:

Liability: The first aspect of your case to be examined is the circumstances of the accident, and more specifically, who’s fault was the accident. If you were completely at fault for the happening of the accident, you have no case. But, if the other driver or drivers were completely at fault, or you were only partially at fault, you may have a case. A typical car accident case involves a rear-end collision. If you were involved in a rear-end collision case, and you were the front car (i.e. the car hit from behind), you have a great liability case. If someone makes a left turn in front of you causing an accident, you have a great liability case. In sum, if the other driver(s) violate a specific part of the the Traffic law (ex. red light, stop sign) your chances of succeeding on a personal injury claim are vastly improved.

Damages: New York State Law requires that in order for you to be successful on your automobile personal injury lawsuit, your injuries must meet a certain minimal threshold. If the Court determines that your injuries do not meet the threshold, your lawsuit is subject to dismissal. Yet, if your injuries meet the threshold, your likelihood of having a successful case vastly improves. Under the law, there are nine categories of threshold injuries. Examples of threshold categories are fractures, or significant disfigurement. The trickier cases involve so called “soft tissue” injuries. A “soft tissue” injury can be a disc herniation in your back, or a shoulder tear. The severity of this type of injury will determine the value of the injury. The best way to determine if your injury is significant is to examine the objective proof of the injury (i.e. x-ray or MRI) and couple that with the impact on your life, such as missed work. If you have an injury that was confirmed by X-ray or MRI and you missed a significant period of time from work, your chances of succeeding on your case greatly improve.

Insurance: The last piece to the puzzle is the amount of insurance available. Initially a claim will be made against the insurance company of the other driver. Hopefully, the other driver maintained more insurance that the New York State minimum of $25,000.00. If the other driver had a minimal policy, the chances of your case going to trial are dramatically reduced. The more insurance available, the more likely that your case will be tried. If the other driver was uninsured or underinsured, you can also make a claim against your own insurance company. This topic will be the subject of another article.

In conclusion, think of your car accident case in three parts: liability, damages and insurance. If one part is missing or reduced, the chances of your case going to trial are diminished.