Tag: Accident Lawyer

Motor Vehicle Accidents

Bad Brakes

I was involved in a car accident. I stopped my car at a light. The other driver slammed into the rear of my car. The owner/driver claimed that his brakes failed. Can I make a claim for my injuries?

Yes, you can sue for your injuries, provided you qualify under the no-fault law. The claim of brake failure is a difficult defense in motor vehicle accident cases. Vehicle and Traffic Law § 375 provides in part “Every motor vehicle . . . shall be provided with adequate breaks . . . in good working order and sufficient to control such vehicle at all times when the same is in use. . . .” Thus, an owner of a vehicle is obligated to maintain adequate brakes. A failure to follow a statute is huge when the trial judge instructs the jury on the law.

The owner of a vehicle is obligated to ensure that his vehicle’s brakes are periodically checked, maintained and repaired. The defendant/vehicle owner must prove the affirmative defense of brake failure.

Brake Failure Affirmative Defense

The vehicle owner must show two things. First, that the brake failure was unexpected. Second, that the owner had used reasonable care to keep the brakes in good working order. Therefore, the inspection and maintenance records would be key.  Records would prove that the brake failure was sudden. If the car was not brand new and had some mileage on it, then it was incumbent upon the owner to have the vehicle serviced. If there are no service or inspection records, then it will be very difficult for the owner of the car to claim that the brakes failed without warning. Service records show that a vehicle was reasonably maintained.

Jury Instructions

At trial, a jury would hear Vehicle and Traffic Law § 375 read to them. The trial judge would instruct the jury that if the defendant (owner of the vehicle with insufficient brakes) violated Vehicle and Traffic Law § 375. If that violation was a substantial factor in causing the accident, then the defendant is liable for the accident.

Assault, Claims Against Municipality, Police Claims

Police and Firefighter Municipal Claims

I am a police officer who was injured during an arrest. I was working with three other officers to arrest a mentally disturbed person who was belligerent to other people. During the arrest, one of my fellow officers discharged a taser into me by accident. I had some unknown cardiac issues, so I am unable to return to work. Do I have a claim?

Unfortunately the answer is probably not. The answer involves a story dating back decades. But the following is a brief sketch into the history of these types of claims.

Police and Firefighters for many years were not allowed to sue for negligence for personal injuries sustained in the course of their duties against any entity or person. Police and Fireman were and are covered by “line of duty” benefits for injuries sustained in the course of their duties. The policy was that those “line of duty” benefits (which included medical care and short term disability benefits, as well as long term disability: three-quarter pay) were the only benefits Police and Firefighters were entitled to claim.

Then the legislature enacted General Municipal Law § 205-e. This was the original law which authorized private claims for Police and Firefighters against negligent parties for causing injuries to Police and Firefighters. Thus a Firefighter could sue a building owner for violating building codes which caused a fire. Police could sue owners of parking lots for a hazard which caused a trip and fall accident. The problem for municipalities were new claims that Firefighters and Police could now bring that they were never able to bring before.

Eventually, the law developed through Court decisions which held that Police and Firefighters could still bring claims for “negligent non-compliance with well developed bodies of law and regulation which impose clear duties.”  Galapo v City of New York, 95 NY2d 568. This meant that a plaintiff (Firefighter or Police) would have to plead and prove a violation of a law or regulation. The more difficult question has been defining a “clear duty.” The Courts have dismissed many cases in which a plaintiff (Police or Firefighter) pleads and proves a violation of a law or regulation (against a municipality), but Courts have held that the law or regulation did not define a “clear duty.” Thus, a Police or Firefighter could not bring a claim against a municipality.

Then the legislature enacted General Obligations Law § 11-106. The statute itself permits negligence claims against all parties except the municipality (and all other fellow Police or Firefighters) for which the Police or Firefighters work. The legislative history of this statute is clear: the statute explicitly denies claims against municipalities by the Firefighters and Police.

Thus, the only possible claim is under General Municipal Law § 205-e and that claim is not likely.

Municipal Liability, Police Liability

The Good Samaritan Claim

I was injured during a fight involving multiple people. A policeman was getting beaten, so I stepped in to help him to prevent him from getting seriously injured. Can I make a claim for my injuries?

You not only have an assault claim against the people who hurt you, you may be also able to sue the City of New York for your damages as well. After filing a notice of claim (and possibly attending a municipal hearing and physical exam), you can file a lawsuit as a plaintiff in Supreme Court in New York for the damages you sustained. General Municipal Law § 71-a imposes absolute liability on the City for your injuries while aiding a police officer at the officer’s direction in making an arrest. For this type of claim there are two requirements: (1) the police office must lawfully command the injured plaintiff in securing the arrest and (2) the plaintiff’s injuries arose out of assisting the police officer.

From the description that you gave, it does not seem likely that you were given an explicit command from the police officer that was getting “beaten.” But, as long as the place officer indicated in some way that he needed assistance, then the City would be responsible for your damages.

Furthermore, “absolute liability” means the City would have no defense for this type of claim. The City would have to pay your damages. The only defense the City could mount would be to argue that the police officer never gave you a command to assist in the arrest of the person beating the police officer.

As a secondary point, there is no type of insurance that would cover the bad actors who inflicted your injuries. If you sue the people who assaulted you, you would have to collect any judgment against those people individually. You may not be able to collect any money.

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.

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.