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Children under the Law

“My son’s bike was damaged (but fortunately not my son) when a neighbor’s child had disingaged a parking brake on the family car and, since the car was a stick shift parked in nuetral, the car began to roll out of the neighbor’s driveway into the street, striking my son’s bike. Can I sue to get the bike fixed?”

The short answer is yes.  The best claim you have is against the owner of the car for negligent entrustment of the vehicle to a young child.  Even if the owner did not leave the car unlocked with a child alone in the car, so long as the owner left the keys in a location for the child to get to them, the owner would be responsible for safeguarding the vehicle.

In civil court, children under 4 cannot be charged with negligence  and children under 6 cannot be charged as violating the vehicle and traffic law. Although older children can be held liable for violating the vehicle and traffic law, children over 6 are only held to be responsible for laws they understand. Children over 4 could be negligent under the law, but their conduct is compared to “a reasonably prudent” child of the age of the child in question.

National Vaccine Injury Compensation Program

“What is National Vaccine Injury Compensation Program?”

In order to minimize the exposure of drug companies to liability for personal injury suits, Congress enacted legislation to allow claimants to make direct claims against the United States government in Federal Court for compensation for injuries due to side effects caused by vaccines. In the 30 years since the program was initiated in 1989, there of been only 7,000 cases filed. Less than half of those cases resulted in compensation to victims. Total compensation over the 30 year span has been in excess of $4 billion.

The advantage to making this special Federal Court claim is the injured party has liitle in discovery and litigation costs relative to a product liability case. However, if the claim does not fit within one of the narrowly proscribed claims for vaccine side-effects listed in a table, then the injured party still has to prove many of the same elements that are necessary to win a product laibility case. Many attorneys would advise their clients that a product liability case in state court is easier to win than any type of claim in Federal Court because of the Daubert standard. (Daubert was a US Supreme Court case explaining the scientific standard for proof in claims brought in Federal Court, which is generally higher than the standard of proof in state court.) But each case would need to be evaluated on its merit.

Motorcycle Accidents

“Does New York no-fault law apply to motorcycle accidents?”

No. Although there was a prior article on motorcycles earlier in this blog which touched on some of the issues, this question is more direct.

There are two parts to the no-fault law.  One part of the law provides for medical benefits and lost wages against one’s own policy, regardless of fault. That benefit is not available to motorcycle riders. Their medical bills must be paid by medical insurance and lost wages neeed to be covered by state and/or private disability insurance.

The second part of no-fault law manadates an injured party must have a ‘serious injury’ before that person can make a claim for pain and suffering against the at-fault party. This is not the case with motorcycle riders.  They can claim all of their personal injuries and medical expenses and lost wages against the at-fault party.

 

Income Tax on Injury Settlement

“Do I have to pay income taxes on my personal injury settlement?”

No. If you receive a settlement for a personal injury case, the IRS deems that settlement as making up for a loss you sustained and not income.  So if your car is stolen, and your insurance company gives you a check for the value of the car, that money you get from insurance for the stolen car is not taxable because it making up for the loss you sustained, the money the insurance company gives you is not “income.”

Rideshare from Hell

“I had hired a rideshare to take me home after I went out with friends. This crazy driver was cutting in and out of traffic at an excessive rate of speed all the way home. To make things even worse, his car started smoking and he left me about a half mile from my house when he pulled over and told me to get out. I left on foot as quickly as I could because I didn’t want to see if his car was going to catch on fire. I didn’t sustain any physical injuries, but I was car sick and shaken after the ride.  Do I have a case?”

The short answer is no.  Although some jurisdictions recognize a claim for “negligent infliction of emotional injury,”  New York is not one of them.  There may be a case someday when the New York Court of Appeals will recognize this type of claim, but New York requires the victim be in the “zone of danger” and to have actually witnessed physical harm to a family member.  Since there were no physical injuries, you, as the victim, meet neither the “zone of danger” test nor the witness to physical harm of a familty member.

The best a clever lawyer could do under these circumstances would be to bring a claim alleging the driver intentionally wanted to cause you emotional distress by driving so erratically in a poorly maintained vehicle. However, such a clever lawyer who would think of this, would also be clever enough to tell you that intentional acts are not covered by car insurance policies.  Thus, most attorneys would only take this case if the victim paid all the legal fees and expenses up front. Those fees and costs would be difficult to recoup against an individual and would probably result without any compensation to the victim!