Tag: James Santner Esq.

Motor Vehicle Accidents, Passenger Liability

Passenger Liability in Motor Vehicle Accidents

I was injured in a two car accident. I was a passenger in a situation in which I was celebrating a birthday and I relied on a designated driver to transport me home after the festivities.Can I make a claim for my injuries?

Normally a passenger wins in a motor vehicle accident case. A passenger has no duty to take over control of a vehicle. Although there is some case law to suggest that passengers do you have a duty to look out and, when reasonable, make the driver aware of potential dangers. For example, if you were drinking with the driver and had observed him consume alcohol, you may be responsible for getting in the car with an intoxicated driver.

If you made arrangements before you attended your celebration to designate a driver, you still might be responsible. If the driver fails to live up to the responsibilities of a designated driver, you are still responsible to not get into a car with an intoxicated driver. It is not that your are responsible for the accident, but you would be responsible for putting yourself in a dangerous position: a passenger in a car operated by and intoxicated driver. Although it may be a question for a jury to decide if you were too intoxicated yourself to determine if you were entering a vehicle with an intoxicated driver.

But on the other hand, if you fell asleep in the car and were not aware of any and were not aware of the driver’s sobriety or conduct, you are not responsible for the accident. Nelson v Nygren. Ironically, the less impaired you were, the greater the chance you could be found partially responsible for the injuries you sustained in the accident.

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.

Accident Cases in Court, Disabled Drivers, Motor Vehicle Accidents

Disabled Drivers

I was injured crossing a street at the corner by a driver who claimed that he was disabled and could not see me crossing. Can I bring a case against that driver?

The short answer is yes. Although a driver may be under disability, it is incumbent upon the driver to operate a motor vehicle in a safe manner.

Drivers who are under a disability must still operate vehicles as a reasonably prudent person. For example, intoxicated drivers are held to the same standard of care as a sober driver. Courts have held that sobriety is a choice. Therefore, the sober driver and intoxicated driver have the same standard of care. Similarly, infants who happen to be driving a car are held to the same standard of care as an adult. Courts have held that a licensed 17-year-old who engages in an adult activity like driving must be held to the same standard of care as an adult. (Even if that driver is an unlicensed infant, that infant is held to the same standard of care as every adult licensed driver.)

Although the law recognizes that a person who is under a physical disability has the same standard of care as a reasonable person laboring under the same physical defects. However that same “person laboring under a physical disability must use caution commensurate with the increased hazard caused by such disability.” PJI:22 That means if you willingly get behind a wheel knowing that you have a disability which keeps you from operating a vehicle in safe manner, the driver, who put themselves in that position, is liable for the consequences. (See Diem v Adams, 266 AD 307, 42 NYS2d 55, elderly driver who had a stiff knee that prevented him from operating the brake pedal was negligent as a matter of law for failing to apply his brakes in a timely manner.)

New York Regulation 15 NYCRR 3.2(c) states that the Commissioner of Motor Vehicles can issue a license with a Class B restriction allowing drivers with impaired eyesight to operate a vehicle with glasses. However drivers must still have a 20/40 eyesight with glasses to operate a vehicle. If the driver operates a vehicle without glasses or with glasses and their eyesight is less than 20/40, then that driver is not operating a vehicle within that restriction. So driver is liable for the accident.

Civil Jury Trials

Juror Note Taking During Trial

I was a juror in a recent civil trial regarding an accident case. I was surprised that I was not allowed to take notes during the trial. I was also glad to find out that was able to go home every night during the trial. I really believe I could have done a better job with the deliberations if I took notes, why wasn’t I allowed to take notes during the trial?

Uniform Court Rule 22 NYCRR § 220.10 expressly allows a presiding judge to permit jurors to take notes during trial. The court rule states that the presiding judge should decide whether or not to allow note taking after the jury is sworn in and before opening statements (however caselaw appears to modify this rule by allowing the judge to permit note taking at any time before the end of the trial).

This author has never seen a civil trial in state court (federal court rules are different) in which the judge has allowed note taking by jurors. There are numerous reasons for this. First, the Court needs to supply paper and pen to all jurors who want to take notes. Second, it is up to the court officers overseeing jury security to take possession of and secure the notes at the end of every court session. Third, the judge will instruct the juror taking notes to only use the notes for refreshing that individual juror’s recollection. Juror notes are not allowed to be used as a record representing the facts of the trial during jury deliberation. Fourth, the judge will instruct jurors to ask the court reporter to read back testimony of witnesses if there is any discrepancy about the recall of testimony during jury deliberation. Fifth, jurors notes are to be collected at the end of the case and never read by the judge, parties or lawyers.

Attorneys and judges alike worry that these instructions will be ignored. If the instructions are ignored, the case would then be tried through the viewpoint of the one or two jurors taking notes during the trial, not six people working together. Judges worry that one or two note takers during trial may have a bias not revealed during jury selection. Then other jurors not taking notes may take the word of the juror taking notes and believe that person.

Jury trials have many potential problems. One problem you highlight is jury sequestration. Civil jurors are never sequestered. So when jurors come back home every night at the end of the court session, there may be a danger that the juror will discuss the case being tried with their families or roommates. (Jurors could easily see discussion of the case as innocent discussion of the events of a person’s day.) Another issue may be jurors discussing the case with each other before they are allowed to discuss it at the end of the case and judge’s final instructions on the applicable law. (Jurors are strangers to each other and the one thing they have in common — about which they are tempted to discuss — is the progress of the testimony and witnesses.)

Almost all judges do not allow jurors to take notes. It is not a perfect solution. But not allowing note taking eliminates the possibility of many other problems.

Motor Vehicle Accidents, serious injury

No-Fault Law in New York

I was injured in a two car motor vehicle accident. The other car had run a red light and struck my car on the driver’s side. Can I sue the other driver for my injuries?

Yes you might. But you need to understand the the No-Fault law in New York. There are two parts to the No-Fault law. The first part of the No-Fault law says that a driver like yourself will have their medical expenses and some lost wage benefits paid for through your own car insurance. This means your car insurance (and every car insurance policy in New York) has a rider that will cover lost wage benefits like a disability policy and a medical insurance rider that will cover medical expenses for injuries related to your car accident.

The No-Fault law states that you must apply for No-Fault benefits within 30 days after the accident. Therefore, if you do not file an application for No-Fault benefits within 30 days after your accident, your medical expenses and loss wage benefits will not be covered through your car insurance. (Your health insurance will not pay for medical expenses related to a car accident. Thus, you must put your medical expenses related to car accident injuries through your car insurance carrier.) At the very least, you should contact your insurance broker. Many underwriters now have their own apps for your phone in which you can notify the carrier of your car accident. The carrier will then send you a form to complete and submit within 30 days of your accident.

The second part of the No-Fault law limits your ability to recover for personal injuries sustained in a motor vehicle accident. Insurance Law § 5104(a) a states that you may not sue the driver who ran the red light for your personal injuries unless you have sustained a “serious injury.” Insurance Law § 5102(d) defines what constitutes a “serious injury.” Although the Insurance Law describes a number of categories of what constitutes a “serious injury,” there is probably no more frequently litigated question in New York jurisprudence than whether a specific injury sustained in a motor vehicle accident fits into one the categories in the definition of a “serious injury” listed in Insurance Law § 5102(d).

If you sustained a laceration and a resulting visible scar or if you sustained a fracture, then these injuries constitute a “serious injury.” If you sustained a soft tissue injury that is temporary, but keeps you from performing your usual daily activities (like work or school) for 90 out of the first 180 days following the accident, then you have sustained a “serious injury.” There are other categories for permanent injuries or significant injuries. Courts have wrestled with these categories to try to determine whether a specific plaintiff’s personal injuries meet one of the definitions of “serious injury.” This subject matter has too many variations to cover in a post of this size to be more precise.

You were not specific about your injuries, so it is difficult for this post to state with any certainty whether your injuries are “serious.”  Thus, it is impossible to say if those injuries could be a basis for a personal injury claim against the negligent driver.