Category: Damages in Personal Injury Cases

Damages in Personal Injury Cases, Insurance Disclaimers, Motor Vehicle Accidents

Impaired Drivers

I was injured in a car accident. The other driver looked like she was drunk or impaired in some way. Will my case be affected by the other driver’s condition?

There are two ways the other driver’s condition may affect your case. A person who drives a car in an impaired state is held to the same standard of care as a sober driver. Furthermore, if the driver took a breathalyzer test, the results of that test would be admissible at trial. Vehicle and Traffic Law § 1192 lists categories of impairment based on the amount of alcohol in a person’s body and the jury would be aware of the test results and the categories of impairment. If the impaired driver refuses to take a breathalyzer test at the scene, that fact a driver refused to take a breathalyzer test at the scene of an accident would also be admissible at trial under Vehicle and Traffic Law § 1194. So a jury would be aware of all the circumstances of the accident and would be instructed to judge the standard of care of the impaired driver as if the driver were sober.

The second affect on your case may be less helpful. Most auto insurance policies have a clause which gives insurance companies the right to disclaim coverage for an impaired driver. If the insurance carrier for the other vehicle disclaims coverage, it may be in your interest to legally fight that disclaimer. If you lose that fight with the impaired driver’s insurance company, you would have the right to bring a claim against your own insurance policy for an uninsured motorist claim. Every auto insurance policy must provide benefits for a driver involved in an uninsured accident. This means if the carrier for the impaired driver successfully disclaims coverage, you could pursue a bodily injury against your own carrier for an uninsured motorist claim.

Assault, Claims Against Municipality, Damages in Personal Injury Cases, Lack of Security, Landlord Liability

Building Security

I was mugged while doing laundry in my apartment building. The police never caught the mugger, can I bring a claim for my injuries?

I’m sorry this happened to you. You might have a claim against your landlord for lack of security in your building.

Building security claims are dependent upon where the attack occurred and the status of the attacker. Since you stated the attack occurred while you were doing laundry, I assume this means you were in a common area in the apartment building when the assault occurred. The next step in the legal anaylis would be to determine if your attacker was in the building as a tenant or guest of a tenant. If the attacker was in the apartment building already as a tenant, there is nothing the landlord could do to prevent the crime from occurring. A landlord is not responsible for the criminal acts of a tenant, unless the landlord had notice of the tenants prior bad acts. Finally, if the attacker came from outside the building, we would have to know how the mugger got inside the building. If there were minimal security measures that were not in place, then the landlord would be responsible.

In a recent case decided by the Court of Appeals, the Court found that failure to have working locks on exterior doors was breach of “minimal securty measures.” See Scurry v NYCHA, 2023 Slip Op 02752 decided May 23, 2023. The Court held that the breach of “minimal security measures” means the case should not have been dismissed before trial. The case was allowed to go forward for a trial by jury.

The question really is who was the perpetrator of the assault? If the mugger came from outside the building and there were no “minimal safety measures” in place, you may have a claim against the landlord. If the mugger was one of fellow tenants, you may have a very difficult case. Whatever investigation the police did would be crucial to address this issue.

Damages in Personal Injury Cases, Motor Vehicle Accidents, Scar

Scarring

I was involved in a car accident last year. The only injury I sustained was a large cut on my arm that has left me with a scar. Can you tell me if it is worth trying to bring a case over a scar?

The short answer is yes. In New York, if you were involved in a car accident, your medical bills are covered by No-Fault. (Generally, the vehicle in which you were riding or driving has a health insurance rider attached to the car insurance policy which covers medical expenses. But if you were driving or riding for your job, your employer’s worker’s compensation policy would cover medical expenses.)

In addition to medical expenses, you may also make a claim for pain and suffering against the at-fault parties who caused your injuries. Under the no-fault law, you can sue for and be awarded damages for a scar. There may be certain tiny scars which may not be awarded damages. However, you stated that you sustained a “large” cut, so I am assuming you have a corresponding “large” scar.

Scar cases are generally quick to try since no doctor testimony is necessary to prove a scar was caused by a laceration. A jury would normally see hospital records, look at photographs of the laceration, and would review the scar on the injured party.

Accident Cases in Court, Damages in Personal Injury Cases, Motor Vehicle Accidents, Zone of Danger

Zone of Danger

Last year this website wrote a blog that touched on the issue of negligent infliction of emotional distress. The Court of Appeals recently wrote an opinion clarifying an issue surronding these claims: Green v Esplanade Venture Partnership, 2021 NY Slip Op 01092.

This sad story occurred May 17, 2015 when two year old Devere Green was a pedestrian killed by debris that fell from the front of a building owned by defendant. Devere Greene was in the company of her grandmother, Susan Frierson, at the time of this accident. Frierson wanted to make her own claim for damages against the defendant for emotional distress. The Court had previously held that Frierson could make such a claim if she was in the “zone of danger” and she was in the “immediate family” of the injured party.

There was no issue that Frierson was in the “zone of danger” since she was right next to her grandaughter when the debris struck. But prior cases limited recovery to a parent as part of the “immediate family.” This Court in Greene, found that a grandparent could be part of the injured party’s “immediate family.” However, the Court also mentioned there was an “emotional bond” between Frierson and Greene. Frierson was activerly involved in the child’s life with frequent visits and sleepovers at Frierson’s home.

So now this opens additional questions regarding negligent infliction of emotional distress (or “zone of danger”) cases. If an injured party is accompanied by an aunt, or a cousin, or close friend at the time of an accident, could that uninjured person that witnessed the accident make a claim for emotional distress if they have an “emotional bond” with the injured party?

Accident Cases in Court, Damages in Personal Injury Cases, Motor Vehicle Accidents

Excess Insurance

“My son was seriously injured in a bicycle accident, but I was disappointed with the recovery he received because my lawyer told me there was a problem with insurance coverage. What can I do to help my son?”

All cars are required by law to carry minimun liability coverage for all accidents. Excess insurance is a term used to describe additional insurance coverage for motor vehicle accidents. If the owner/operator of a car purchased an “umbrella” policy, then the “umbrella” policy would afford additional coverage for a motor vehicle accident. If the owner of a vehicle is different than the operator, then the operator may have his or her own insurance coverage in addition to the policy covering the vehicle. If a tractor/trailor was involved in the accident, then sometimes trailors have their own policies different than the tractor which could provide additional coverage for your accident.

If your son’s case is settled, then there is nothing anybody can do.

But if your son’s case is not settled, your attorney must look for all of the available insurance covering an accident to maximize your son’s recovery. Many defendants simply do not have assets worth attaching to collect a judgment. If your son did obtain a large monetary judgment against the driver that struck him, bankruptcy laws will allow the defendant to discharge that debt through bankruptcy. Your son may be in better position if he had settled his case for the available insurance coverage. But your attorney must look for all available insurance coverage.