Category: Accident Cases in Court

Accident Cases in Court, Emergency Situation

Emergency Situation Part 2

In the last post on the Emergency Doctrine, a person asked if they had a personal injury claim for their heroic efforts to save a driver injured in a cross-over motor vehicle accident. But in the post, there was a brief mention that one or both of the drivers could be found liable for the hero’s injuries. That means, not only the driver that crossed over to the wrong side of the road, but also the driver who was in their correct lane could be liable for the hero’s injuries!

This statement bears some further explanation. Did the driver who faced another vehicle crossing over to his side of the road have is own emergency situation?  The answer is probably yes. That means, that even if the driver who was the victim of the cross-over driver might have been able to avoid the accident using a highly skilled NASCAR driver maneuver, he is not responsible for the accident. As long as the driver on the correct side of the road acted reasonably to avoid the head on collision, he is not responsible for any damage to himself or his car.

There are several factors to consider if a driver is facing an emergency situation. First, if the roadway was straight and level, did the cross-over occur suddenly within a second or seconds or was it gradual over a minute or two? Second, could the driver on the correct side of the road see if the cross-over driver was operating their vehicle erratically? (Thus, there might have been some warning of an impending accident.) Third, did the driver on the right side of the road contribute to this accident? Did the driver on the correct side of the road himself drive erratically and thus startle the other driver who crossed over? Based on the responses to the these questions, the driver on the correct side of the road would probably not be liable for the accident.

Accident Cases in Court, Emergency Situation, Motor Vehicle Accidents

Emergency Situation

I was badly cut attempting to remove someone from their car through a broken window. I had seen an accident between two cars and stopped to see if I could call an ambulance. The car that was struck by another car crossing over a double yellow line was stuck in a ditch. When I got to the car in the ditch, the driver seemed to be panicking, trying to get out through the broken driver’s window. When I tried to help the driver through the window, I was badly cut and needed to be hospitalized myself. Do I have a case against anyone?

The short answer is yes. In prior blogs, the “common law” has been explained to be a legal principal that is announced in a legal decision, and over the course of decades, becomes law just like any statute that is passed by the legislature and signed into law by the governor. The particular common law in this case is called the Emergency Situation Doctrine.

Judge Cardozo used the phrase “danger invites rescue” in an important Court of Appeals decision explaining the Emergency Situation Doctrine over a hundred years ago. The doctrine states that when a person sees another person in danger, the person who attempts to help the person in danger has a claim against the negligent parties that created the dangerous situation. (The person attempting the rescue though cannot act in a reckless manner.)

In this case, when you saw the two vehicle collision, you were compelled to see what you could do to help the people involved. You stated that your main goal was to see if people were injured, and if so, to summon an ambulance. When you came upon the person panicking, you attempted to assist that person from their vehicle. You were injured assisting that person exiting the vehicle.

Your claim is against the party or parties that created the situation. You may have a claim against both drivers. You have a claim against the driver that crossed over the yellow line because that driver was not following the Vehicle and Traffic Law in their vehicle operation and that conduct would be negligent. However, the driver you rescued could be negligent if that driver did not take any action to avoid an accident that might have been avoided. Statements from both drivers might be evaluated by a jury to determine if there was fault on both drivers.

Accident Cases in Court, Landlord Liability, Municipal Liability, Slip and fall accident, Statute of Limitations, Undeveloped Land Accident

Accidents on Undeveloped Land

I was injured when I was driving an all-terrain vehicle (ATV) upstate. Can I bring a claim for my injuries?

You probably will not a claim for your injuries. Although, as explained later, there may be certain circumstances in which you can bring a claim, using ATVs generally exclude you from any claim against the landowner.

Although all landowners have the common law duty to all people on their land of “reasonable care.” (As mentioned in some of the prior blogs, a common law duty is imposed by Courts on certain people based on many Courts’ decisions over decades. These decisions over time become duties imposed on people subject to the Court’s jurisdiction.) The exception to the common law duties imposed by Courts can be found in statues enacted by the legislature and governor.

In this case, a private land owner has no obligation to keep a premises safe when the person on the land is engaging in certain recreational activities. General Obligations Law § 9-103. So if a person is injured on property while hunting, fishing, canoeing, trapping, hiking, boating, canoeing, horseback riding, bicycle riding, hang gliding, snowmobile operation and ATV riding, then the owner of the property has no obligation to make the land safe for any of these purposes. Thus, the property owner has no obligation to clear paths (and possible pave them) so an individual can safely ride an ATV.

There are exceptions to this rule. One exception would be if the landowner charged for people to ride ATVs on the land. But your question did not mention any fee was paid for permission to ride an ATV on the land. A second exception would be for some willful or malicious condition. Again, the question did not mention any concealed malicious trap set on the land to disrupt the ATV rider and cause injuries. It was just typical wooded upstate property.

This case becomes even more complicated if the accident occurred on New York State land. If the State of New York is a possible defendant, all claims must be brought in the Court of Claims (a separate Court different than the Supreme Court, the Court of Claims handles only cases against the State of New York). There are also short statute of limitations to bring claims against the State. All claims against the State must present a “Claim for Damages” followed by a filing of the lawsuit in the Court of Claims. The State also has certain defenses that an ordinary citizen or company does not have.

Accident Cases in Court, Insurance Disclaimers, Motor Vehicle Accidents

Insurance Disclaimers

I was involved in an accident in which my car was damaged but no-one was hurt. I received a letter from the other driver’s insurance carrier saying that the insurance carrier was not covering the loss. There was a bunch of legal jargon I didn’t understand in the letter. Does this mean my car won’t be fixed?

I would suggest that it is probably too early to tell if your car will get fixed and paid for by insurance. There are a number of issues involved with a letter of disclaimer.

An insurance company will send a letter of disclaimer if it believes that it is not responsible to pay for the loss. The usual reasons that an insurance company will not pay for a loss is (1) the insured did not pay his premium, (2) vehicle was being used without the owner’s permission (such as a stolen vehicle), or (3) the owner of the car or someone who had the owner’s permission to use the vehicle was driving while intoxicated and caused an accident. There are some times in which the insurance company will be liable even if one of those three circumstances occurred.

For example, just because the insured did not pay his premium does not mean automatically that the loss will not be covered. Under New York law, a carrier has to send a notice to the insured that the policy is canceled. The carrier has the responsibility to send the notice of cancellation with certain language and in a certain font size! If the insurance carrier does not follow the exact letter of the law, the policy is in effect.

Second, the insurance company might be liable if the vehicle was being used by another licensed driver living in the same household as the insured. It would all depend upon circumstances in the home of the insured. For example, did the insured leave keys to the vehicle in a common area in the home about which all licensed drivers in the home knew the key’s location? Prior to the accident, did the insured lend his or her car to the same person that was driving at the time of the accident? These factors would be very important to determine the liability of the insurance company.

Third, even though the insurance company may have been given a statement by a witness that their insured was drunk, the insurance company still may not be able to disclaim. If the police were not at the scene of the accident or the alleged drunk driver was never tested with a breathalyzer or blood test, the insurance company may still have to pay on the claim.

In most instances, we advise our clients to put property damage claims through their own insurance company through a “collision endorsement” in their own policy. Even though a person may not want to put a claim through their own insurance company for an accident that was not their fault, your own insurance company has the resources to fight the other insurance company. If you have a $1,000 deductible in your auto insurance policy “collision endorsement,” after the first $1,000, your own insurance company will pay to fix your car. Then your insurance company has a right of subrogation.

A right of subrogation means that your own insurance company will fight with the other insurance company to get back money your insurance company paid to fix your car, as well as your $1,000 deductible.

If you have no “collision endorsement” in your insurance policy, you can take the driver and owner of the vehicle that caused the accident to small claims court. I would also advise you to file a complaint with the insurance department to investigate the validity of the disclaimer.

Accident Cases in Court, Accidents Abroad

Injuries Abroad

“I was injured on a jet ski during a recent trip to the Bahamas. Can I sue the hotel for my injuries?”

This is a very complicated question. The answer is going to be probably not. But, the question is so complicated, it would probably take a a long consultation to give you a more precise answer with reasons why you probably couldn’t  sue the hotel.

You will have to consider jurisdiction, the applicable law, the doctrine of forum non conveniens, as well as forum selection clauses, mandatory arbitration clauses, and choice of law clauses. Each of these issues could fill up several law review articles, so I will only attempt to highlight the issues.

If you are injured in the Bahamas, there are substantial questions if an American court has the jurisdiction or authority to hear the dispute between the parties. An American court can have jurisdiction if the hotel or booking agent had marketed itself to people in the State. This may not be difficult, especially considering the internet allows easy international marketing, but this is only the first step.

Second, even if the American court has jurisdiction over the matter, the Court may be compelled to apply the law where the incident occurred. In the Bahamas, there are no jury trials or contingent fees where lawyers can represent victims for fees payable out of the victim’s recovery. (Doe v Sun International Hotels, Ltd., 20 F.Supp.2d 1328 (SD Fla. 1998))

Third, if the case survives the first two hurdles, it must survive a motion to dismiss for forum non conveniens. Essentially, the American court may have jurisdiction, but may decline to exercise that jurisdiction because which court is better suited to interpret the laws of a foreign country, an American court or the Courts in the foreign country?

Finally, if the case can move forward after those three issues, the booking agreement may have a clause or clauses buried in it which may dictate that any disputes be settled in a specific forum (country), or disputes must be settled using only the law of another country, or disputes be settled with arbitration for compensatory damages (medical bills) with no claims for pain and suffering.

Thus, without further information, it is impossible to say with certainty. But chances are, any claims you may have will be derailed by one of the above mentioned issues.