Archive for the ‘Personal Injury Attorney’ Category

“ZONE OF DANGER”

We have seen that in “wrongful death” actions, the generally applicable rule in New York is that emotional trauma caused family members by the loss of a loved one is not a permissible basis for a “cause of action” in a lawsuit.

Is there ever a time when the emotional impact upon a loved one can be the basis for a lawsuit by that loved one?

The answer is “YES”. When the loved one finds themselves within what is known as the “Zone of Danger”at the time a member of their immediate family was injured or killed…

To be eligible to bring a “zone of danger” lawsuit for the emotional trauma and psychological impact an immediate family member’s accident had upon you, it would be necessary to demonstrate not only that it was an immediate family member that was involved, but that:
—You were also in such proximity to the accident victim that you could well have been injured yourself;
—You were aware of the fact the immediate family member was being seriously injured or killed as the event was occurring;
— You have valid medical proof that you suffered a psychological injury as a result of that accident (psychological or psychiatric medical treatment).

Zone of Danger cases are relatively rare since the requirements to bring such a lawsuit are very stringent. There is a general perception that whereas physical injuries are usually subject to objective tests, psychological injuries might be more susceptible to fraud and so conditions are created that make the infliction of psychological injuries more plausible.

It takes an experienced Personal Injury Attorney to recognize the possible availability of a Zone of Danger case, and to properly analyze the circumstances surrounding an accident to appropriately apply the requirements to be successful in such a lawsuit.

THE PERSONAL  INJURY  CASE
WHY PERSONAL INJURY CASES TAKE SO LONG
PART V: SETTLEMENTS AND TRIALS
B.  Trials

If settlement cannot be reached in a case, and a final trial date has been set, the attorneys come to court and are assigned to a  room where a “jury panel”, usually numbering about fifteen people from the larger jury pool, are also sent.   The attorneys take turns introducing the case and then proceed to ask questions of each of the potential jurors.  Some jurors are dismissed “for cause,” which means there is a valid legal reason to prevent that juror from sitting on the jury.  Since the aim of each attorney is to try and have a jury composed of as many individuals the attorney perceives will be favorable to their client at trial, the attorney has at his/her disposal a number (often three) of “peremptory challenges” which allow the attorneys to exclude a juror without cause.  Once those challenges are exhausted, however, the attorney will be compelled to take everyone else, other than those that can be excused “for cause”.   Arguments regarding the dismissal of jurors are referred to a judge to resolve.

Once the jury is selected, the jurors and the attorneys go to an assigned courtroom (in some jurisdictions the selection of the jurors takes place in the assigned courtroom) with an assigned judge.

After preliminary procedures are attended to, each attorney is given an opportunity to make an “Opening Statement” to the jury.   The trial then continues with the Plaintiff presenting the Plaintiff’s Case.  This will usually consist of testimony from the Plaintiff, possible witnesses, and “Expert Testimony”.   Expert Testimony can involve testimony given by treating physicians, experts in economics discussing the future earning losses of the Plaintiff, or experts in other fields such as product or roadway  design,  police procedures, etc.   The Defendant’s attorney has the opportunity to Cross Examine every one of the Plaintiff’s witnesses, as the Plaintiff will do when the Defendant presents its case.

At the conclusion of both the Plaintiff’s and Defendant’s cases, the Trial Judge will give a “Jury Charge”.  Instructions are given to the jury as to the rules of law the jury MUST apply when it considers all  the evidence, oral and tangible exhibits, that was presented to it during the trial.  The jury then deliberates.  In a civil trial there are normally six jurors (with two alternates that are dismissed when the matter goes to the jury).

Laymen are usually not aware of the fact that the decision of the jury may not be the final word.

The judge can play a major role in restructuring or changing the determination of a jury if the judge considers that the decision of the jury contradicts a viable legal reason for sustaining the “VERDICT” of the jury.   VERDICTS can be “set aside” “as against the weight of the evidence” and money damages awarded by a jury can be increased or decreased by a judge.   Keep in mind, too, that any action a judge takes can serve as the basis of an APPEAL to a higher court.  Appeals, however, are costly and time consuming, and are usually not resorted to under other than extraordinary circumstances.

People are very concerned about the choice of a surgeon when contemplating surgery.  A person should be no less concerned about the abilities of an attorney they choose.  Often, the expertise and reputation of your attorney can result in a favorable settlement, thereby avoiding a trial, but if a trial becomes necessary, the attorney you choose may also be crucial. At Orlow, Orlow, & Orlow we have over 30 years experience with helping you get the most from your case. Contact one of our New York City Personal Injury Attorneys today for a consultation.

Very rarely will a case will be settled at its earliest stages, before many of the procedures in this article have been instituted. That usually only occurs when the fault of an accident is clear, the injuries determined and an agreement as to value is reachable. An agreement to settle can be quickly reached if, for example, there is a limited insurance policy and that policy limit is less than the agreed upon value of the case.

Very frequently, however, an attempt to “SETTLE” a case will begin before the time of trial. Most often it begins when most, if not all, of the discovery in a case is completed. A settlement is reached after negotiations either between the Plaintiff’s attorney and the Defendant’s attorney, or as is very often the case, between the attorney for the Plaintiff and the adjuster assigned to the case by the insurance company.

The adjuster is almost always NOT a lawyer.

Settlement discussions usually begin with a “Demand” made by the Plaintiff’s attorney, followed by an “Offer” by the defendant’s attorney, or by the insurance company adjuster. If both sides are “within the same ballpark”, so to speak, they will continue the negotiations. Settlement negotiations then involve the presentation by each side of the strengths of their side’s case and the weaknesses of the opponent’s case.

It involves first, in establishing the “COMPARATIVE NEGLIGENCE” of each of the parties. What that simply means is that an effort is made to assess to what extent (usually expressed in simple percent terms) each party is at fault. Then the negotiators will try to assess the “DAMAGES”–that is they will try to place a “value” upon the injury sustained by the Plaintiff. Then, applying the determination regarding “COMPARATIVE NEGLIGENCE” to the value of the “DAMAGES”, a SETTLEMENT amount can be determined. (If, for example, a Plaintiff and Defendant are each deemed fifty percent at fault, and the injury is valued at $100,000, the Plaintiff is entitled to 50% of $100,000, or $50,000).

Settlement discussions can take place as late as the trial itself. In fact, very many cases are settled during the selection of a jury, since both parties probably realize at that time that the other party is “serious” regarding the stand they have taken with respect to settlement. Additionally, the presence of an assigned judge at the time of trial, who is actively involved in the attempt to settle the case, will very often produce a settlement that was not attainable till now. Defendant’s representatives are very familiar with the reputations of law firms representing Plaintiffs. They know full well those that are prepared to proceed to trial and those that habitually prefer to settle before trial. The potential client will hopefully have researched this factor BEFORE having made the choice of an attorney.
Failing all else, the trial commences..

Contact our New York City Attorneys at Orlow Orlow & Orlow for more information.

THE PERSONAL INJURY CASE WHY PERSONAL INJURY CASES TAKE SO LONG: Part I – PRE-INTAKE PHASE

From a purely business point of view, this phase of a case may well be the most crucial to the attorney. In the field of personal injury law, cases are routinely taken on a “contingent fee” basis. This simply means that an attorney will not earn or receive any fee for his work unless there is a successful conclusion to the case, and the client receives some amount of monetary compensation. It stands to reason, therefore, that the decision as to whether or not to accept a matter into the office is of vital financial importance to the attorney. Too many cases accepted, that end in a failure to obtain compensation, will lead not only to unhappy clients, but will also lead, eventually, to an abbreviated life span for that law office.

Through diligent and meticulous questioning, the experienced attorney will delve into various aspects of the matter being presented by the potential client.

Questions relating to time, location, parties involved, conditions at the scene, preceding events, injuries sustained, relationships of parties and myriad other questions are all designed to see first, whether there is a viable case and second, whether the case has the possibility of ending in a way that both the client and the attorney can view as “successful.”

Issues involving Statues of Limitations (legal time limits for bringing a case), Damages (injuries suffered), Liability (fault of each party involved) and Coverage (available funds from insurance or other readily available sources)are all of pivotal importance to the experienced attorney at the Pre-Intake stage. At Orlow, Orlow, & Orlow we have been handling personal injury cases in New York City for over 30 years.

POLICE MISCONDUCT | SCHOOL SAFETY OFFICERS

In 1998 the New York City Police Department assumed direct responsibility for safety in the New York City public school system. While there are some police officers assigned to schools, the overwhelming number of Police Department personnel assigned to the public schools, for the purpose of maintaining a safe environment, are civilian employees of the Police Department known as “School Safety Officers.” School safety officers have the authority to stop and frisk students as well as question, search and even arrest students. Of singular note is that school administrators have no authority at all over the school safety officers in their school !

School safety officers receive 14 weeks of training before they are sent to their school assignment. A NYC police officer goes through a six month training course. Is it any wonder that the actions of many school safety officers often defy reason. It was the persistent and blatant disregard for the appropriate guidelines, leading to unlawful arrests and other abusive activity, that prompted the American Civil Liberties Union, together with the NY Civil Liberties Union, to bring a federal civil action calling for a drastic change in procedures. The ACLU stated that “Despite mounting evidence of systemic misconduct by police personnel in the schools, the NYPD refuses to even acknowledge any problems with its school policing practices.”

School Safety Officers have routinely broken school policing rules, used unwarranted excessive force, and have violated other school safety regulations and procedures.

According to the New York Daily News (January 21, 2010, page 26) the City of New York averaged 500 complaints against school safety personnel between the years 2002 to 2007. In 2008 that number jumped, according to the News, to 1159.School based personnel are subject to virtually the same rules, regulations and laws as would any other police personnel on the street, in dealing with the public. In fact, the population with which school safety personnel are dealing is entitled to extra consideration, not less, because they are, invariably, minors. Any act or behavior on the part of school safety personnel that deviates from acceptable norms and standards is, and should be, the subject not only of disciplinary action within the police department, but the party harmed should seriously consider a civil lawsuit for actions that are truly outrageous and unacceptable.

If contemplating a lawsuit, the injured party should not only seek a competent Personal Injury Attorney, but look specifically for one well versed in the area of police misconduct and abuse, including cases involving excessive force and false arrest.

Federal class-action lawsuit charges school safety officers subjected kids to ‘excessive force’

Read an article from the New York Daily News titled ” Federal class-action lawsuit charges school safety officers subjected kids to ‘excessive force”‘ by CLICKING HERE

MUNICIPAL LIABILITY | CAN I SUE THE CITY? | CASES AGAINST NEW YORK CITY | “SPECIAL DUTY”

There is a basic rule that is applied when a lawsuit is contemplated against a municipal entity, such as the City of New York. That rule gives the City, or any municipality, “absolute immunity” for the acts of that government’s employees. This holds true even if those employees failed to act when they should have, or having acted, they did so in a negligent manner.

An individual resident of the City will have no basis for a successful lawsuit for injuries sustained through the acts of the City’s employees UNLESS that individual can demonstrate that a “SPECIAL DUTY” existed on the part of the City in favor of that particular individual.

The New York Court of Appeals (New York’s highest court) established four “elements” that create a “SPECIAL DUTY” relationship between a municipality and an individual:
— the municipality assumes a duty to act on behalf of the individual;
— the municipality’s employees must be aware of the fact that a failure to act may result in harm to that individual;
— there must have been some direct contact between the municipality’s employees or agents and the affected individual; and
— the individual harmed must have been justified in relying upon the assurance given to him/her by the city’s employees or agents.
Without demonstrating the existence of each and every one of these four elements, the injury incurred through the acts or omissions of municipal employees may go entirely uncompensated.

An experienced Personal Injury Attorney will also be aware of the fact that certain broad areas of acts by municipal employees are not considered “governmental” in nature–which acts ARE subject to the rules of “Special Duty Relationships”—but are , rather, considered “proprietary” in nature, and are instead decided by ordinary rules of liability and do not require the establishment of a “special duty” in order for the city to be held liable.

ELEVATOR ACCIDENTS | WORKERS COMPENSATION | THIRD PARTY ACTIONS | NEW YORK LABOR LAW CASES

In an effort to repair an elevator in a five story cooperative in Manhattan, a repairman lost his life on Wednesday, January 13, 2010. While the exact method of the repairman’s death is not yet determined, speculation is divided between a fall in the elevator shaft or electrocution. The repairman was there to deal with tenant complaints of elevator misalignment with the floor, and with “squeaking” sounds.

Having died in the course of his employment, the representatives of the deceased will look to Workers Compensation for their remedy.

Without explaining the intricacies of the New York Labor Law, whether the repairman’s estate will have a viable THIRD PARTY lawsuit against the owner of the building, in addition to the Workers compensation claim, may well rest on a judicial determination as to whether a “repair”, as opposed to “maintenance,” was involved in the work being performed by the repairman at the time of his death !! The availability of a THIRD PARTY action could make a significant difference in the eventual amount recovered.

The laws surrounding injuries sustained by workers in the construction trades and allied fields are very protective but also very complicated at times.

The difference to the injured party and that party’s dear ones can be very substantial since, as an almost inviolable rule, THIRD PARTY actions result in recoveries significantly greater than awards under Workers Compensation.

An attorney with considerable experience in handling THIRD PARTY LABOR LAW cases is essential to safeguard the vital financial interests of those grievously affected by a worker’s accident. If you or your family member have been injured contact Orlow, Orlow, & Orlow today.

LEAD POISON IN BUILDINGS: 2009 UPDATE

In 1960, New York City was the first city to ban lead paint. Since then, New York City has strengthened that law on two occasions. The last time the law was upgraded was in 2004, when the NEW YORK CITY LEAD POISONING PREVENTION ACT (Local Law 1) was passed.

The results of the City’s actions have been notable.

The City’s Department of Health and Mental Hygiene reports that in the period from 1995 until 2007 the number of children reported with elevated blood levels dropped astonishingly from 19,000 to just 1900, a decrease of 90%.

Local Law 1 placed significant burdens upon landlords :
1: informing tenants about lead hazards;
2: inspect apartments where children under 6 years old reside;
3: correct and remove any identified lead problems and do so in a recognized and safe manner.

The United States Department of Health and Human Services has set a national goal of eliminating all new cases of lead poisoning by this year, 2010.

The likelihood of New York City reaching this goal seems remote at the present time. David Powell, of the Tenants and Neighbors organization in New York State, stated that a major obstacle in achieving this goal is the lack of adequate enforcement by the New York City Department of Housing Preservation and Development. Unfortunately, the Department’s budget in 2010 is $20.6 million, while last year it was $25.8 million ! The national economy negatively affects lead poisoning prevention efforts, as it does so much else.

Nevertheless, the admirable reduction so far in lead paint cases among children is due, in the main, to increased awareness on the part of parents to the hazards of lead paint. ANYONE THAT BELIEVES THEIR CHILDREN MAY FACE LEAD POISON HAZARDS SHOULD CONTACT 311 FOR ASSISTANCE. If, unfortunately, your child seems to have been effected by lead paint poisoning, which is indicated through lead testing by your doctor or at a hospital, contact a reputable personal injury attorney, experienced in lead poison cases, as soon as possible.

To read the New York City Local Law 1 go to:

http://www.nyc.gov/html/hpd/downloads/pdf/lead-local-local1-2004.pdf