Tag: Accident Attorney

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, 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.

Medical Malpractice

Res Ipsa Loquitor

“My wife had a minor surgery several weeks ago, but she developed an infection that nearly cost her life. Can I sue the hospital for malpractice?”

If your wife’s infection occurred during her surgery and there were no surgical mistakes that increased the risk of infection, then generally, the answer is no, your wife cannot sue. Infection following a surgery is considered a foreseeable risk of most procedures, and thus, your wife would have no case.

However, if the surgeon left something in your wife to cause her infection, like a surgical sponge, then the hospital and doctor would be liable under a legal theory named res ipsa loquitor. Basically res ipsa loquitor holds people accountable for actions that do not ordinarily occur in the absence of negligence; for actions that are in the total control of the surgeon and hospital; and for actions not due to any conduct of the injured party. Obviously, your wife was under anesthesia so she had nothing to do with anything involving the surgery. The surgeon and hospital were in complete control during the operation. Finally, leaving surgical tools, like a sponge, inside a patient would be considered negligent.

If the doctor leaves a surgical sponge inside the patient, a jury can infer negligence against the doctor and hospital without expert testimony and award damages to the plaintiff in a court case. But each case can be different and more details of the surgery would be necessary to give a better answer.

Accident Cases in Court, Damages in Personal Injury Cases

Monetary Value of Personal Injuries

How does a judge determine the amount of money to award in a personal injury lawsuit?

A Court awards “fair and reasonable” compensation for the injuries sustained. This does not really seem like an answer, but the question is too vague to give a better answer. The best I can really do is to briefly explain the process that a court uses to determine monetary damages.

Although a judge can make awards for personal injuries, most cases are decided by juries. In New York, six people decide the amount of the award. CPLR 4104. But only five jurors have to actually agree on a compensation award. New York Constitution, Art. 1, sec. 2. The jury listens to testimony, reviews photographs, looks at medical records, and listens to doctors testify about the injuries. After attorneys present all of the evidence, the trial judge reads a set of jury instructions. Jurors go to private room where they talk amongst themselves to discus the evidence and the jury instructions.

The judge instructs the jury to use their common sense to award “fair and just” compensation. There is no magic formula, no schedule of injuries to guide a jury explaining what to award based on the body part or severity of injuries.

Judges have the power to over rule juries to lower outrageous verdicts (called remittitur) or to raise unconscionably low verdicts (called additur).  Appeals courts can also raise or lower verdicts based on prior cases of similar injuries.

This is far from inexact science. That is why many times parties end up settling cases at a figure both sides can live with.

Worker's Compensation

Worker’s Compensation Discrimination Claims

Can I be fired for making a Worker’s Compensation Claim?

The short answer is no.  You can file a discrimination claim with the Worker’s Compensation Board.But there are practical problems making a claim against an employer who may fire an employee for filing a Worker’s Compensation Claim.

First, the burden of proof is on the employee (not the employer) to prove discrimination. (In Worker’s Compensation, the employer has the burden to show the employee is NOT covered by Worker’s Compensation.) This is a significant problem, because the employee would need to show some kind of evidence demonstrating discrimination.

Employers are not required to keep a position open for an employee who is out on a Worker’s Compensation Claim.  If you work for a larger business you are probably covered by FMLA which means that your employer cannot fire you for being absent due to a serious health condition which keeps you from working 12 weeks out of a 12 month period.

For cases not involving FMLA, if you are out more than six months, the employer does not have to keep your position open. The only exception would be if the employee is covered under a union contract which protects the employee’s job beyond six months.

All discrimination claims should be made within 2 years from the date of discrimination with the Worker’s Compensation Board.