Archive for the ‘Personal Injury’ 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

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.

WHY  PERSONAL  INJURY  CASES  TAKE  SO  LONG PART IV: DISCOVERY :

Once a case begins, there is a “pipeline” of events through which the case must pass.   This pipeline is meant to insure that the case moves along as expeditiously as possible and that the parties to the lawsuit, and in particular their attorneys, take the necessary measures in a timely fashion so that the case will reach a conclusion within a somewhat reasonable time.  What “reasonable” consists of is undoubtedly measured differently by the client, and those used to working in the court system.

There are requirements for the submission of certain documents triggered by the initiation of the lawsuit.   After the service of the “Complaint” upon the Defendant, the Defendant must serve an “Answer” upon the Plaintiff.  The Answer virtually always contains a “Demand for a Bill of Particulars” from the  Plaintiff ..   The “Bill of Particulars”, provided to the Defendant by the Plaintiff, is then given in response to the Defendant’s Demand.  The Bill of Particulars sets forth answers to questions posed by the Defendant in the Defendant’s Demand, and usually covers many items, including the way the accident occurred and the specific injuries sustained by the Plaintiff as a result of the accident.

This “pipeline” also consists of certain required conferences where the attorneys set dates for the exchange of information between the parties, and set the dates for depositions, (commonly known as Examinations Before Trial) of the parties–opportunities for all parties to question each other about the facts of the case.   The information to be exchanged consists of such items as medical records, repair and maintenance records, employment information, school records and other items that may bear directly on the issues being raised in the particular case.

There is a target date set for when ALL discovery must be completed–often a year or more in advance of the first conference depending on the county where the case is brought–which is influenced by the case load in that court.  At that point a Note of  Issue must be filed, which places the case on the trial calendar of the court.   Your case is then “on line” waiting for a trial.  Again, depending on the county, this wait can be anywhere from several months to more than a year–depending on how crowded the trial calendar is in that county !

Delays often occur when one party or the other, for a variety of reasons, fails to provide the demanded information to the opposing party.  In that event the recourse is for the party seeking the information to make a “motion” in court asking the court to intercede and force the recalcitrant party to produce the information sought.  The aim is to attempt to complete all “Discovery” by the time set by the court for filing the “Note of Issue”. Contact one of our New York Personal Injury Attorneys today.

THE PERSONAL  INJURY CASE – WHY PERSONAL INJURY CASES TAKE SO LONG, PART II : “THE INTAKE”

Having determined that a case should be accepted into their office, attorneys will be eager to begin acting upon certain crucial matters as soon as possible. The most important of all these crucial matters are those that involve time limits.   There are many “time limits” that, if overlooked, could doom a case virtually before it gets off the ground.  Other time limits, if missed, might not doom the case completely but could amount to a financially costly error.

“Notices of Claim,” that must be timely filed in all cases involving governmental or quasi-governmental authorities or agencies, are a top priority.  Failure to file a properly completed “Notice of Claim”, within the proper time limit, upon the proper agent, and in the proper office designated specifically for that purpose will, in most instances, doom the case . (See this BLOG’s ARCHIVE for more on “NOTICES OF CLAIM”).  In motor vehicle accidents, claims for “No-Fault “ benefits must be timely filed as well as notices to “MVAIC”, the State established agency, that will be available to pay an injured vehicle occupant in the event other vehicle insurance is, for whatever reason, not available.   Failure to file appropriate documents in the prescribed fashion is a failure that can only bring gloom and doom to both an attorney and his client.   For this reason alone, the experience of the attorney you choose is an invaluable commodity!

The basis of an attorney’s relationship with a client is the “Retainer Agreement”.

This sets forth the rules governing the relationship between the attorney and the client.  It should be written in simple language, so that every client should be able to understand it.  The client should feel absolutely free to read it carefully and ask any questions that may come up.  And a client should ask for a copy of the agreement, if one is not offered by the attorney, to take with them for later review.   An attorney is also obligated to send a “Retainer Statement”, which sets forth the identity of the client, the nature of the fee arrangement, and how the client was referred to this particular attorney, to the Office of Court Administration, which is then filed and kept until an eventual “Closing Statement” is sent at the end of the case, describing how the case concluded.

The work immediately following intake does not stop there.  Investigations necessary to the eventual success of a case often begin at once.  Scenes of accidents examined and photographed, witnesses interviewed while the incident is still fresh, clients advised NOT TO SPEAK AT ALL WITH INSURANCE COMPANY AGENTS, hospital records ordered, and a myriad of other items, each specific to the needs of the individual case before the attorney, are tackled at this early stage.  There will be plenty to do later on as the case develops to make it worthwhile to see these important preliminary steps are attended to now. At Orlow, Orlow, & Orlow our New York City Personal Injury Attorneys can help you with your case. Call us today.

THE  PERSONAL  INJURY CASE: WHY PERSONAL INJURY CASES TAKE SO LONG: Introduction

One of the inevitable questions a new, or potentially new, client will ask is how long can he or she anticipate it will take until their case is finished.   The honest answer is seldom welcome: though cases have been known to finish in a matter of months, these are the very rare exceptions.  The client should realistically expect the case to last two to four years, with two and a half to three years being average!

It is fair for the client to wonder why a case should take so long.

The purpose of  the articles in this series is to make an attempt to explain why such a seemingly long time is needed to complete this task. At Orlow, Orlow, & Orlow we want our clients to understand every aspect of their case. While the explanation may not alleviate the distress at the long haul involved, it will, hopefully, clarify the reasons and thereby give the client a basis for seeing at least some benefit to this lengthy time factor.

Our New York City Personal Injury Attorney series will begin with the “Pre-Intake” phase, followed by “The Intake”, “Beginning Litigation”, “Discovery” and then “Settlement or Trial”.

Notice • Actual Notice • Constructive Notice

You fall on a bunch of grapes on the floor of a supermarket and injure yourself.   Is the supermarket responsible?     You fall down a stairway in your apartment building when you trip on a loose stairway tile and end up in the hospital. Can the landlord be held legally responsible?   The lighting in the hallway of an office building is not working and you fall over some boxes left in that hallway by one of the tenants, suffering a fractured nose..  Will you be successful in a lawsuit against the building owner?

While each of these scenarios may seem quite different, each has an element in common.  It is an element that may well be one of the most important issues in almost every type of injury lawsuit.   It is an element that can, and often does, spell the difference between success and failure in many, if not most, lawsuits.

Lawyers call this element “NOTICE”.   What lawyers are asking is whether or not a person who might be held to be legally responsible for an injury actually knew about the defect or condition that caused the injury (“ACTUAL NOTICE”).    In the event the potentially responsible person did NOT know of the defect or condition that caused the accident, an equally important question will be whether that person SHOULD HAVE KNOWN about that defect or condition .

When we ask whether that potentially legally responsible person SHOULD HAVE KNOWN, we are asking whether or not the defect or condition existed for a long enough period of time that the potentially responsible person can be reasonably expected to have found out about that defect or condition within that time – regardless of whether or not they actually did find out (“CONSTRUCTIVE NOTICE”)!!

In our first example, when did the grapes fall onto the floor of the supermarket?  Were the grapes dropped by another customer just a minute or two before our victim slipped and fell on the grapes?   Or were the grapes on the floor a half hour earlier during which time supermarket employees probably passed that location, or could reasonably have been expected to pass that spot,  several times, but failed to pick the grapes up.  PROBLEM: Proving how long the grapes were on the floor.   If the issue are tiles on a building stairway or light in a hallway, the testimony of witnesses, such as other tenants in that building, would easily show the existence of the defective condition for a period of time.   It is much more difficult in the supermarket situation.  We would usually have to rely either on other customers (forget about store employees !!) or even on the “victim” him/herself if, for example, the “victim” passed the exact spot where the grapes were located fifteen minutes or a half hour earlier and could state, with certainty, he/she saw the grapes on the floor at that time.

Another problem: if the “victim had seen the grapes earlier, why didn’t she/he avoid them the second time around?–Which is why you need a good lawyer !!.

Most often, if there is no ACTUAL NOTICE or CONSTRUCTIVE NOTICE, then a lawsuit will not be successful.  There are many exceptions, often created by law, and it is essential that you consult an experienced attorney to discuss your individual situation.

Posted by New York Personal Injury Lawyer Steve Orlow

TRIP & FALL CASES

“UNKNOWN CAUSE”

Countering the “Open and Obvious” and “Not Inherently Dangerous” Arguments

If the victim of a slip or trip and fall accident is unable to identify the cause of the fall, then the general rule applied by virtually all attorneys is that there is no viable case.  It is ultimately not sustainable  to attempt  to  hold another party responsible  for one’s injury if the cause, attributable to that alleged  responsible party, is only based  on speculation.

Experienced Personal Injury Attorneys, however, will not be quick to dismiss the possibility of a lawsuit based on the first hint of an “unknown cause”.  Truth be told, what may well not be evident to the layman that was injured, may be self-evident to a more experienced eye or to an expert.  A most obvious example may be the absence of a handrail which, to the average person, may not amount to an obvious defect.  Nevertheless, the absence of a handrail could well be the basis for a successful lawsuit.

The apparent absence of a cause of an accident is common in “single step” cases.  A person falls down a  single step.  The  potential defendant argues the absence of liability both  because the step  was “open and obvious” and certainly “not inherently dangerous”.    Both of  these  positions are traditional grounds  for granting defendants “summary judgment” (dismissal) of lawsuits.  The presence of “warning signs”, advising passers-by of dangerous conditions, adds  substance  to  such  defense  positions.

It is up to the Plaintiff’s team, the attorney backed by an expert, to direct the court’s attention to any existing defect – such as lack of handrails, a dangerous  slope, a riser that violates the building code, a cracked or defective lip, etc. that would resurrect  a potentially moribund lawsuit.  What the seasoned Personal Injury Attorney will do is anticipate arguments the defense will interject, and prepare the appropriate groundwork in  both  paperwork and deposition testimony, to give support  to countering those defense positions.

HALF OF SUPER LONG DELAYED FLIGHTS ARE IN NEW YORK AIRPORTS : JFK, LAGUARDIA, NEWARK

THE NECESSARY EXPERTISE OF THE PERSONAL INJURY LAWYER

“Ignorance is no excuse”!

How often have we heard that expression. And nowhere is that expression more appropriate, and often times more painful, than when applied to cases that require, as a condition to beginning a lawsuit, the proper filing of a “Notice of Claim”. If, for almost any reason whatsoever, you do not file a Notice of Claim upon the proper governmental or quasi-governmental agency within the required time (most often 90 days within New York City), your chances of getting a court to grant you permission to file a “Late Notice of Claim” ranges between slim to none !

This is not to say that permission to file a “Late Notice of Claim” is never granted. You must show the court “good cause.” “But I didn’t know about the rules” is most definitely NOT among the “good causes”. (As a long time practicing attorney, there are few things more frustrating than receiving a call from a potential client, with what would have been a very viable
case, only to have to turn the client away because he or she did not call in time to file a timely Notice of Claim).

When might a Late Notice of Claim be granted?

If the accident placed you in a hospital, in a coma, which lasted beyond the required period, a court may well be sympathetic to a circumstance as extreme as that. Courts are also sympathetic to “infants” (individuals under the age of 18 years in New York). A court will be reluctant to have a child be deprived of its day in court because of the failings of a parent. What may well happen is that the court will allow the fling of a “Late Notice of Claim” on behalf of the child, but if the adult had a valid case along with the child, the adult will be denied that same right. The basis for the court granting any request to file a “Late Notice of Claim” is determining whether or not the municipality or governmental agency will be “prejudiced” by granting the permission. The usual test to determine whether prejudice exists is to decide whether or not the entity or agency to be sued will still be able to carry on a thorough and complete investigation even though they receive the Notice of Claim in an untimely manner. For that reason, one of the issues the court will examine is whether or not the entity being sued had all of the information it needed, from other sources, to carry on a complete investigation, even though they did not have the Notice of Claim

If ever an experienced lawyer MUST BE consulted, it is in all instances where a Notice of Claim has to, or had to, be filed. If you failed to file a Notice of Claim within the required period, then the experience of the lawyer you choose to consult becomes all the more important. At Orlow, Orlow, & Orlow we can educate you on the proper way to file all your paperwork. We will work hard to defend your rights.