Archive for the ‘Car Accidents’ Category

Who is Responsible for the Acts of Intoxicated Persons?

The term “Dram Shop” is legal terminology that generally refers to an establishment that sells liquor out of its original container.   A “dram” was a small unit of liquid measurement and the “Shop” usually refers to a bar, tavern or similar business.

Before any statutes were passed, the theory was that those serving the liquor were not responsible for the harmful acts of intoxicated persons against other parties.  It was the intoxicated persons themselves that bore the responsibility for their acts.   The so-called Dram Shop Acts, enacted by most, if not all, states, now place part of the responsibility for the harmful acts of intoxicated persons on those that supplied the liquor, usually if the person to whom the liquor was supplied was “visibly intoxicated” at the time he/she was served, or if the person being served was a minor.

We will explore the variations and ramifications of this type of law which has been expanded and refined over the years..

Continued in: The Underaged and Intoxicated in New York

Comparative Negligence

How is responsibility for an accident determined?

When someone involved in an accident relates how the accident happened, most times they attribute the “fault” for the accident to the other party.   “He was speeding while I made the left turn”; “he had the red light “, “the bulb was out on the stairway”; in each instance the presumption being that another person was the cause of the accident, and therefore the other person was “at fault”.
For those of us dealing with accidents every day, we have come to expect “two sides to every story”.   This does not necessarily mean someone is lying.  It very often means that two people just see things differently.   Police will tell you that witnesses to the very same occurrence will often see different, if not contradictory, aspects of the same event.  That is human nature.
Except for the rare situation where identifying where fault lays–for example a “rear end” auto collision–where the car being hit squarely in the rear is virtually never held to have any fault whatsoever–most cases have some apportionment of fault..  If a case goes to trial and there is a jury, then the jury will be asked to decide to what extent each party is at fault for the accident.  The jury, based on the evidence presented, can decide any combination of responsibility from 0% for one party and 100% for the other, or any percentage breakdown in between.  The jury is determining the “LIABILITY” of each party.
In the event the matter is settled before there is a trial, then the lawyers for each of the parties will have to agree on the percentage of “LIABILITY” of each party before they can reach a settlement.
The lawyers, or the jury, are comparing the negligence, or fault, of each party.  New York has a “COMPARATIVE NEGLIGENCE” system.   The negligence, or fault, of each party is apportioned.   Then, when the parties, through their lawyers, or the jury, decide how much the injury sustained by the injured party is worth, they can decide exactly how much the injured party actually will receive.  If, for example, it is determined that the fractured ankle suffered by the driver of a vehicle is  “worth” $100,000, and it is decided that the driver was himself 50% responsible, then the driver will only receive $50,000, and not the full $100,000.
Negotiating the settlement of a personal injury lawsuit is, more often than not, as important as being able to successfully take a case to trial.  As personal injury attorneys will tell you, the vast majority of lawsuits are settled before the completion of a trial.   Negotiations are crucial to obtaining a result with which the client will be satisfied and which will fairly and adequately compensate the client for his or her injury.   There is no substitute for experience and, if possible, references by previously satisfied clients, when choosing an injury attorney to represent you.

Posted by New York Accident Injury Attorney Steve Orlow

TOYOTA   ACCIDENTS | PRIUS–LEXUS-TOYOTA  RECALLS | “SUDDEN ACCELERATION”

Never before in the history of the automobile has there been a manufacturer’s recall even remotely approaching the 10,000,000 recall notices issued by the Toyota Motor Company.   It is a number that staggers the imagination and, inevitably, will lead to an avalanche of lawsuits.

The lawsuits will probably vary in kind.  Some lawsuits will involve class actions concerning the significant reductions in the resale value of cars affected by the  recall.

The most serious lawsuits will be brought  by those injured in accidents involving  recalled vehicles.

There has even been a report of an individual, involved in a serious accident attributed to him, that resulted in his being imprisoned when his story that there was sudden, unintended acceleration was not believed.  Presumably, if a review of the evidence indicates that a Toyota defect was actually the cause of that accident, there could be a lawsuit based upon the unjust incarceration.

While those whose cars have been recalled undoubtedly suffered enormous inconvenience, it would require a serious injury before a personal injury lawsuit would be entertained  by a Personal Injury Attorney.   Calls to our office from those receiving recall notices and who suffered  no injury, have had to be informed that, barring a serious injury, the costs to our office to bring a lawsuit would outweigh the recovery we could anticipate, even assuming the best of circumstances.

With new evidence becoming public, that relates to the “sudden acceleration” problems of the various Toyota vehicles including Prius and Lexus, the advantage to the injured litigant becomes  more  pronounced.  To those who have not yet had a chance to have their vehicles “repaired”, and even to those who have had their “repairs” completed  pursuant to the recall, any accident, involving both “sudden acceleration” and an injury, should be the subject of a call to a Personal Injury Attorney. ( There is significant basis to believe that Toyota  may not have fully developed a total “fix” for the problems their cars have experienced.).

TEXTING WHILE DRIVING: UPDATE

In a follow up to our posting (January 12, 2010) regarding the Presidential Executive Order banning federal employees from texting while driving government vehicles, the Federal Government has just (January 26th, 2010) banned all texting by drivers of buses and large commercial trucks.

This ban is enforceable by fines of up to $2,750.

The National Safety Council estimates that 200,000 crashes in the U.S. are caused by drivers who are texting. Currently, about 24 states ban texting while driving, and more states are on the way. There is also pending legislation in Congress that would accomplish the same result.

This is a very interesting and sad New York Wrongful Death / Personal Injury Case.

Jill Mattice, a six-year veteran of the New York State Troopers was fatally injured in a head on collision with a tractor-trailer on the evening of Wednesday, January 20th. Mattice was pronounced dead on Route 23 where the accident took place.

“Her community was enhanced by her service,” Governor David Paterson said in a written statement. “Her State is humbled by her sacrifice.”

There is an ongoing investigation into the crash. She was the first female to have ever been killed on the job in the state of New York.

Source: New York Daily News

“The Buffalo police officer was killed in an early morning crash on the I-190. Police say the driver that hit and killed the off-duty officer was drunk. ”

“He was a cop who fought against guns, gangs and drugs as part of his job with the police department’s Mobile Response Unit. But it was an alleged drunk driver that ended Officer Colon’s life.” Reported WKBW.com

Nothing is more tragic when someone who works so hard to protect the lives of those that live in New York than when the life of a New York Civil Servant is cut short.  Drunk Driving Car Accidents in New York claim the lives of many every year and take an unimagineable toll on the families and friends of those lost.

Please keep Officer Colon and his loved ones in your thoughts and prayers.

MOTOR  VEHICLE  ACCIDENTS

Since  records of the “rate of traffic fatalities” have been kept, 2009 has recorded the lowest rate ever! “Fatality rate” involves the number of traffic fatalities combined with the number of miles traveled.

In just the last year alone, there was an 8.9% in the number of deaths reported:  37,261 in 2008 and 33,963 in 2009.  The “rate” of deaths in 2008 was 1.25 per “100 million vehicle miles traveled (VMT); in 2009 it was 1.16 per VMT–again, the lowest ever recorded!

Why the decline? According t the National Highway Traffic Safety Administration, it is due to a combination of factors including the increased  use of seat belts prompted  by national campaigns to promote seat belt use, and campaigns to reduce drunk driving and distracted driving (which involve the use of cell phones for calls and texting). In addition to these items indicated by David Strickland, NHTSA Administrator, we should also look  to the increased presence of collision avoidance devices appearing in automobiles.

Car accidents are a problem that effects most of us at least once in our lives. Some accidents are worse than others but we can help our clients with all types of accidents. Last Saturday there was an accident that left the police with a case of mistaken identity for the victim.

“Alfred and Geri Esposito of Mastic Beach were told Saturday morning that their son Freddy and another passenger had been killed in a collision with a tractor-trailer on a Pennsylvania highway.

“He [a Suffolk County police officer] gave me the name of the hospital and said the coroner would be in touch with me,” Alfred Esposito told NBCNewYork. “And said that I would need to come to Pennsylvania to identify the body.”

It turns out Freddy wasn’t dead. He was asleep on a couch in an apartment he rents with his brother. The dead man was one of his former fraternity brothers — a revelation that both relieved and upset the Espositos.”

If you are involved in a car accident contact our experienced New York legal team today for a free consultation.

Source: http://www.nbcnewyork.com

This question is not as simple as it may sound.   Under most circumstances, if you suffer an injury and another person shares some or all of the blame, then a lawsuit against that individual seems clearly your right.   It does not necessarily work that way in motor vehicle accidents in New York State.

New York State has made a tradeoff.   Regardless of whether or not and individual is responsible for a motor vehicle accident that occurred, that individual will be entitled to payments for his/her medical costs and lost  wages, and some other expenses as well.  For  passengers in vehicles, these expenses will be paid  by the insurance company of the vehicle in which you find  yourself.   Since “fault” is not an issue, these payments are known as “NO FAULT” coverage.

However, in return for this guaranteed payment for medical expenses and lost wages, the traveling public had its right to sue curtailed !   A person may only sue if the injury he/she sustained is a “SERIOUS INJURY”.

What is a “SERIOUS INJURY”?   That is an injury that is defined by the statute.  It can be specific: any fracture (broken bone) meets the requirement–or as lawyers say, it meets the “threshold” permitting a person to sue.  More troubling, the acceptable injury may be much  more vague (see below).   What is clear is that injuries that are passing in nature, and do not involve significant permanent damage, will probably not meet the “threshold”.

Here’s the problem. If a person sues regardless of the seriousness of his/her injury, and the party being sued asks the court to throw out the case  because the injury is not serious enough, the court has the right to “dismiss” the case if the judge decides the “threshold” is not met..   And this can happen a year or two after the case has begun, at which point a significant amount of time, effort and expense has been invested in that case, which then is all lost !

Bringing a lawsuit always requires an car accident attorney well versed in the field of law involved.   This is certainly true in a case involving such a potentially confusing area as MOTOR VEHICLE ACCIDENTS.

Statutory Definition of “Serious Injury”

“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Posted by New York City Injury Lawyer Steve Orlow