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

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.

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

DRAM SHOP ACT

RECENT CASE A TWIST ON WHO CAN SUE THE BAR OWNER

As we saw in the previous post on Drunk Driving Lawsuits in New York, an injured person may sue the bar that provided liquor to a visibly intoxicated person, who caused the injury. If the person that was intoxicated injured themselves, the intoxicated person could NOT bring a lawsuit against the New York bar under the Dram Shop Act : The seller of liquor has no obligation to protect a consumer against the consequences of his own voluntary intoxication.
In this case, an injured lady had consumed very much alcohol at a bar, after she had ingested pain medication. When she left the bar, at about 5 AM, she attempted to cross a parkway. She was hit by a car. She sued the owner and driver of the car. (As noted above, she did not have the right to sue the bar that sold her the liquor).
The owner and driver of the car that hit the women then decided to bring the bar owner into the lawsuit. They made the point that the fact their vehicle hit the lady was due, in some significant way, to the fact that the bar allowed the lady to become excessively inebriated. Here, we have someone other than an injured party, seeking to make a bar owner partially or totally responsible for an injury, under the Dram Shop Act !
The trial (lower) court said this was NOT valid under the Dram Shop law. The Appeals Court (higher court) said it WAS a proper application of the intent of the Dram Shop law, and allowed the case to go forward !
The higher court ruled that the Dram Shop Act’s intention was to protect the communities of New York from the dangers that intoxicated people can cause the community, and allowing this lawsuit would further that intent.

It is interesting to see how the Dram Shop Laws will play out in the recent case against a New York City Police Officer Accused of Drunk Driving and Killing A Ministers Daughter in Brooklyn.

It is truly unfortunate whenever those sworn to uphold the laws upon which our society is based proceed to violate those very same laws. It was our founding father, John Adams, who first stated the now often heard truism that the United States is “a nation of laws, not of men”. That regardless of a person’s station in life, the laws apply to each and every individual.
As Mayor Bloomberg says in the accompanying video on a recent post about the NYPD officer who killed the minister’s Daughter crossing the street, it is precisely because of the trust and responsibility we assign to police officers in our society, that they are to be held to an even higher standard than others. To be so very irresponsible as to become intoxicated, and then get behind the wheel of a car, flies directly in the face of the standards we must set for someone who walks among us with a badge and a loaded weapon !

DRIVING WHILE IMPAIRED | CELL PHONE USE WHILE DRIVING | TEXTING WHILE DRIVING

On January 11, 2010 the New York Times, in its “Technology” section, published some interesting, yet disturbing, statistics: 11% of drivers, at any one time, talk on their cell phones while driving (per a federal study); Drivers using cell phones cause 2600 deaths each year (per a Harvard study)*; 570,000 accidents causing minor and major injuries are the result of cell phone usage (Harvard study);

With the growing awareness by Americans of the hazards of cell phone usage in cars, the NYTimes also found (in a NYT/CBS NEWS poll) that 50% of Americans hold the view that texting and driving should be punished at least as harshly as drunk driving.

This attitude is fortified by published studies indicating that drivers using cell phones are four times more likely to have an accident than other drivers.   In fact, the likelihood that someone using a cell phone will crash has been shown to equal that of a driver with a .08 percent blood alcohol level, the level considered “impaired” in many, if not most, states.

While the dangers of cell phones usage, in ALL its forms, is well established (texting, hands free, hand held),

no state has banned the use of cell phones while driving entirely.  The most that has been restricted is the use of hand held devices.  Federal employees are not allowed to text while driving, pursuant to an executive order issued by President Obama.

For the Personal Injury Attorney, the issue of distracted or impaired driving while using a cell phone has become an entirely new area to be investigated in automobile accident cases.  This is also a new area for litigation and discovery.  There will, undoubtedly, be judges across the country that will be reluctant to permit opposing parties access to the cell phone records of their adversaries.  Nevertheless, as knowledge about the horrific hazards cell phone usage poses while driving becomes more widespread, our courts will hopefully expand dramatically their tolerance for the discovery of cell phone records.

Currently, any experienced Personal Injury attorney will make every effort to obtain cell phone records of an opposing party if there is the slightest indication that cell phone usage may have been a contributing cause of the accident involved.

*Transportation Secretary LaHood states the annual death toll from cell phone distraction amounts to 5,800