Tag: Personal Injury claims

Municipal Liability, Parks and Recreation

Municipal Claims in Parks

I was injured while watching my daughter’s softball game. A foul ball struck me and I needed to be hospitalized. Can I make a claim against the City?

Possibly. Municipal claims are always complicated with multiple levels of substantive rules and procedural rules that make it difficult to bring any case. There are different substantive rules for the location of an accident, whether it occurred on a street, sidewalk, public way or park. There are also complicated procedural rules for municipal claims. All claims must be made in writing within 90 days after the accident to the Comptroller or the Corporation Counsel on an approved form. Claimants must make themselves available for a municipal hearing (something like a deposition) and a physical examination. Then, a summons and complaint must be filed within one year and ninety days after the accident. (Some agencies have different requirements and shorter statute of limitations.)

In the case of your daughter’s softball game, it required some legal research, but it appears that you might have a case. Legal precedents are cases already decided by Courts. Courts write and publish written decisions to guide judges. Courts are obligated to decide cases which have similar facts to have a similar outcome. The legal term for this principal is called Stare Decisis. The difficulty was trying to find a decided case with similar facts to your case.

Your case depends upon where you were standing or sitting when the ball hit you. As it turns out, there was a court case with similar facts to your case. The municipality has a duty to maintain the screening in a park behind home plate. If you were behind home plate and there was no screening or the screening was poorly maintained (with holes so that the softball could pass through and strike fans), then you could have a municipal claim. See Starke v Smithtown, 155 AD2d 526 (2d Dept. 1989). If you were standing or sitting in foul territory down the first or third base lines, then the municipality has no obligation to protect fans.

Medical Malpractice

Medical Malpractice Claims v Personal Injury

What is the difference between a medical malpractice law suit and a personal injury law suit?

A medical malpractice case is a law suit against a doctor (or other health care provider) because the medical treatment rendered to a particular patient deviated from acceptable standards of care for doctors (or other health care provider) in the area.

A personal injury suit is ANY lawsuit (medical practice, car accident, trip and fall accident, etc.) in which the injured party (the plaintiff) seeks damages (monetary award) for “personal injury,” also known as a claim for pain and suffering. Personal injuries are only one element of damages sought. There can also be other types of damages in law suits brought by injured people, such as claims for medical bills, lost wages, and out-of-pocket expenses.

So all medical malpractice claims seek damages for personal injuries along with claims for medical bills, lost wages and out of pocket expenses. But not all personal injury suits (suits for car accidents, trip and fall accidents, and medical malpractice) are medical malpractice suits.

Motor Vehicle Accidents

Comparative Neglience

“I was going straight at an intersection when a car suddenly turned left in front of me, damaging my car.  The police came and made out a report saying I was going straight.  But the insurance company for the driver making a left turn does not want to pay to fix my car.  Can the insurance company do this?”

The short answer is yes.

The insurance company is only obligated to make a reasonable attempt to settle a claim. This means that the insurance company can use every legal defense available to the driver they insure.

In New York, we live in a state that is governed by “comparative negligence.”  This means that the insurance company only has to pay for the damage for which their insured is legally obligated to pay.  If their insured is 100% responsible for the accident, then the insurance company must pay for 100% of the damage. If their insured is 50% responsible for the accident, then the insurance company will only pay for half of the damage.  CPLR 1411. In the case of left turn, even though a driver going straight has the right of way, the driver going straight also has an obligation to see what there is to be seen an avoid the collision.  The driver going straight may be partially at fault.  It is not clear what was told to the police nor what may have been written in accident reports sent to the insurance company.  But there are factors which could give the insurance company a reason to offer to pay less than 100% for the damage.

Collision Coverage

If you have a collision endorsement on your own car, we always advise clients to put the property damage claim through your collision endorsement.  You may not get all of your damages paid up front. But by using your collision endorsement, you allow your insurance company to fight the other insurance company on your behalf.  If your insurance company is successful fighting the other insurance company, you could get back your entire deductible.  Furthermore, your insurance company is in a much better position to fight an insurance company than you are.  If you fought this claim yourself, you would have to file a summons in court and be your own lawyer against an insurance company lawyer.  This would not be a fair fight.