June 21, 2013

Law suits against the City

One of the more difficult cases to prove is a negligence claim against the government.  The first problem is that governments have immunity from many claims. This means that you cannot bring a claim against a government for many claims you could make against a private individual.  This applies to cases where the government's decision to act or not to act is found to be discretionary.  Under those circumstances, the Courts will find for the government.  A recent case highlighted this rule of law.  In 2005, a woman was riding her bicycle. When she approached the entrance to the transverse road at West 65th Street in Central Park, a Department of Transportation (DOT) employee was placing traffic cones to block cars from entry to allow repairs. The employee said she could continue. On the road, the woman hit a pothole and suffered severe injuries to her face, which have required over 20 surgeries.

The bicycle rider sued the city, and a jury found that it was 60 percent liable for her accident because the DOT employee was negligent in allowing her to continue riding on the road. However, the Manhattan Supreme Court set aside the verdict, finding that the employee was engaged in the "discretionary" government function of traffic control, rather than the "proprietary" function of street repair.

The Appellate Division agreed with the Manhattan Supreme Court. It stated that the DOT employee made a discretionary decision to allow the plaintiff to proceed because his crew had not completed its preparations for roadwork. The court said that this decision was not made while engaged under the “proprietary” function of street repair, meaning that the City was not under a duty to maintain the roadway at the time. A government is immune from liability when acting in a discretionary function. Therefore, the City was not liable here.

At Foley Griffin, LLP, our attorneys represent clients in a multitude of areas of law, including slip and fall accidents and premise accidents. If you require assistance with a legal issue, please contact our office located in 666 Old Country Road, Suite 305, Garden City, NY11530, or call us toll free at 1-800-991-2773. 

What is a Serious Injury Under the Motor Vehicle Laws?

If you have been in a car accident and you would like to sue the other driver for compensation, you have to prove to the courts that you have met the threshold for a "serious injury" under New York law.  Under the Insurance Law, a person must satisfy one of the following eight definitions before pursuing a lawsuit; otherwise non-economic loss is not recoverable, meaning damages for pain and suffering and so on cannot be recovered by a plaintiff. The Insurance Law § 5102(d) provides:

Serious injury” means
1) a personal injury which results in death;
2) dismemberment or significant disfigurement;
3) a fracture;
4) loss of a fetus;
5) permanent loss of use of a body organ, member, function or system;
6) permanent consequential limitation of use of a body organ or member;
7) significant limitation of use of a body function or system, or
8) a medically determined injury or impairment of a non permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.   
The first four definitions provided are very precise and easy to determine. The latter three definitoins are more difficult to determine, and many serious injury threshold inquiries are centered on whether a person meets one or more of them.
                               
Dating back to 1982, the court in Licari v. Elliot determined that since New York uses a no-fault system, recovery can only result for serious injuries under the above statute. According to Ortiz v. Ash, once a serious injury is shown, the plaintiff must prove that the injuries she sustained are causally related to the accident claimed. Only after these requirements have been satisfied, a plaintiff can sue for non-economic loss, such as pain and suffering.

In a more recent decision, the Court of Appeals set straight the body of law governing requirements of proof in “serious injury” threshold cases. The court held that 1) there is no requirement that a plaintiff show contemporaneous range of motion testing following an accident and injury, and 2) where doctors disagree on issues of causation, such issues must be left for the jury to determine.         

In essence, the court rationalized that potential plaintiffs seeking recovery for injuries should not be penalized because their treating doctor did not perform a range of motion test, but rather focused on treating the injuries.

The court also held that a treating physician’s statement that the plaintiff had no prior similar injuries or symptoms and that the injuries were causally related to the accident was sufficient to raise a triable issue of fact on the issue of causation, meaning that the case can move on to hear the plaintiff’s claim.

The courts constantly add to their "case law" with each ruling, thus creating a precedent that they can follow. Many of the definitions regarding serious injuries found in the Insurance Law statute are further defined in the court’s case law. It is essential to have a knowledgeable and experienced attorney who can properly represent you in these matters.

At Foley Griffin, LLP, our attorneys represent clients in a multitude of areas of law, including car accidents. If you require assistance with a legal issue, please contact our office located in 666 Old Country Road, Suite 305, Garden City, NY11530, or call us toll free at 1-800-991-2773.

Soft tissue injuries


We are often asked by our clients if they have a “good case.”   Our response generally involves three components; (1.) Whose fault is the accident?; (2.) Did the other driver have adequate insurance, or the client have sufficient underinsurance; (3.) Do the injuries meet the threshold.   I would like to focus on the third component of a good case, namely “threshold.”  New York State law has set forth nine (9) different categories of cases that qualify as a serious injury that would allow a person to successfully pursue a personal injury lawsuit.  One of the categories is easy, that is you suffer a fracture.  So, if you are in an accident and suffer a fracture, your injury qualifies as a “serious injury”under the law.  The more difficult cases are those involving a soft tissue injury.  In these cases, there must be causal connection between the injury and the accident, a diagnostic test confirming the injury, and some impact upon a person’s life. This means that if you have a soft tissue injury and go back to your usual daily activities right away, the chances of having a successful personal injury case are reduced.  Usually the best indicator of a good soft tissue case is the significance of the injury on a person’s life after a period of time  has passed.

June 5, 2013

Crosswalks Are Not Havens

A medical study of injured pedestrians and cyclists in the city was recently conducted by a team of trauma surgeons, emergency physicians and researchers from NYU Langone Medical Center.

Among their findings, they found 1) being overweight may be a factor that protects New Yorkers from serious injury, 2) that taxicabs pose a large threat to cyclists, who often compete for the same small curbside area, and 3) that cyclists and pedestrians hit by cars are most often struck while in the crosswalk, with the signal on their side.

From December 2008 to June 2011, the group studied more than 1,400 pedestrians and cyclists treated at Bellevue Hospital Center after collisions, mostly occurring in Manhattan and western Brooklyn. Focusing on the patients, data was collected through victim self-reporting, medical records, and accounts from witnesses and first responders.
   
One of the findings was that excessive weight may be helpful for pedestrians in a collision. Dr. Frangos noted that generally, overweight and obese patients fared worse once admitted to a hospital, but that perhaps “that extra layer offers some protection at the time of the injury.”
   
The study also showed that the awareness level of the pedestrian or cyclist may have been compromised in some cases due to alcohol consumption or the use of an electronic device like a cellphone. It was also noted that the time of day mattered. The majority of cyclists were hit between noon and 3 p.m. and after 6 p.m., reflecting times when food deliveries are most often made. Most pedestrians were hit by automobiles on weekdays between 9 a.m. and 6 p.m.

One of the more significant findings showed that a large amount of riders and pedestrians were struck by taxis. Taxis hit cyclists more often then pedestrians.

The study has some shortcomings in that it does not include those who were killed at the scene of the accident. However, the most chilling take-away from the report is that there is no area that is entirely safe. Nearly half of those injured on the street were using a crosswalk, with the signal. The remainder of those injured were crossing at midblock, crossing against the signal, or were involved in less frequent circumstances, like travelers being hit while getting into or out of a vehicle.

The study could help inform transportation planning in the city. Administration officials try to reduce the types of injuries sustained in these cases. After observing the report, officials said it reinforced many of their own findings, including the need for bike lanes, pedestrian plazas and other traffic-calming measures.

At Foley Griffin, LLP, our attorneys represent clients in a multitude of areas of law, including car accidents involving pedestrians and cyclists. If you require assistance with a legal issue, please contact our office located in 666 Old Country Road, Suite 305, Garden City, NY11530, or call us toll free at 1-800-991-2773.