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NEW YORK PERSONAL INJURY LAW
THE MENU OF A PERSONAL INJURY CASE:
The general duty of care in accident cases and personal injury
law: A motorist is under a duty to act as an ordinary, reasonable, prudent
person with respect to avoiding the creation of unreasonable risks to others. A
failure to meet this standard means that the defendants conduct is negligent.
Causation: In addition to proving negligence, the Plaintiff must
also prove that the defendants conduct was both a proximate and direct cause of
the accident or injury complained of.
Contributory and Comparative Negligence: Comparative negligence has
replaced contributory negligence in New York Personal Injury law, meaning that
Plaintiff's recovery is not barred if his fault contributed to the accident or
injury for which the Plaintiff seeks to recover.
Burden of Proof: The laws of the State of New York support at least
three different standards of proof concerning accident and injury cases. However
the preponderance of the evidence standard applies in most civil cases for the
recovery of personal injury damages. Therefore the
plaintiffs attorney has the
burden of going forward with sufficient evidence to show that it is more
probably true than not, that the defendants conduct was negligent, and that the
negligence was a cause of the injury or accident.
Plan the strategy
It is relatively commonplace to here about large out of court settlements.
Very few plaintiff's actually desire a trial and would prefer simply receive the
settlement money out of court. However the largest damage awards come from the
jury, not the opposing party. No lawyer worth his salt can assume that the case
will settle. In New York as in most all states, a jury is instructed on issues
they will decide based on standard jury instructions as codified for example in
New York Pattern Jury Instructions. The lawyers know in advance what these are
and build a case and a trial presentation that is designed to
impact the jury
when these are ultimately recited by the judge.
Standards of Conduct
The laws which control motor vehicle
operation, ownership, maintenance, are codified in the New York
State Vehicle and Traffic Law , also known as "the rules of the road." Most
courts still hold that a violation of the "rules of the road" establish
"negligence per se" however the plaintiff must still meet the burden of proving
causation and damages.
Certain municipalities, such as New York City, promulgate their own special
rules of the road. VTL §1600 provides that the statutory rules of the road are applicable and in force throughout the state, absent express authority to local government and designated authorities to enact conflicting ordinances, rules or regulations. VTL §1642 provides that the City of New York may by local law, ordinance, rule, regulation or health code provision
regulate traffic on or pedestrian use of any highway in the City. These
provisions supersede the provisions of the Vehicle and Traffic Law.
Also note, that since the provisions of the New York City Traffic Regulations are ordinances, a violation of an ordinance is only some evidence of negligence and not negligence per se as it would be for a statute under the VTL.
Liability based on Negligence
Negligence is not a standard of care, but rather a lack of care. Negligence
is not intentional conduct and a person can be guilty of negligence for an
accidental happening. The finding of negligent conduct means that the defendant
failed to take the precautions or act within the bounds of what a reasonably
careful person would do under the same circumstances. Caldwell v. Village of Island Park, 304 N.Y. 268, 107 N.E.2d
441 (1952) set forth the original definition that is still used today, stating
that negligence is the lack of ordinary care that a reasonably prudent person
would have used under similar circumstances.
A failure to take act may be negligent. A general duty of care is imposed on
all human activity to act at least as carefully as an ordinary and moderately
careful person, in whatever that individual is doing. However, inactivity or a
failure to act may also constitute negligence. For example an owner of property
has a duty not to allow an icy condition on a public sidewalk from runoff water
from his land. His failure to act in this situation may subject him to liability
should a passerby slip and fall and injure herself.
Actionable negligence does not require any proof of intent in New York
personal injury law. However there is a correlative concept that relates to
state of mind in negligence law. In proving the case, Plaintiff's attorney must
show that the defendant acted or failed to act with respect to a foreseeable
risk of harm to a third party. New York courts take an expansive view with
respect to the foresee-ability issue.
The unforeseeable Plaintiff problem: When a defendant breaches a duty to one
person, and a second individual is injured as a consequence, issues of
foresee-ability become analytical. In Palsgraf vs. Long Island RR 248 NY,
339, a railroad employee negligently assisted a passenger in boarding a train
resulting in a dropped package which created an explosion causing a scale some
distance away to fall and injure a second passenger. Whether liability exists on
the part of the railroad for the negligence of it's employee depend on whether
the court adopts the Andrews view or the Cardozo view in the decision in that
case. According to the Andrews view, if the defendant has breached a duty of
care to someone, he also has breached a duty of care to anyone, who is injured
as a result of the negligence. Under the Cardozo view, the duty only extends to
third parties within the zone of danger of the defendants activities.
In car accident cases, motorcycle accident cases, and truck accident cases in
New York, foresee-ability is rarely litigated as a defense to an injury claim.
Any violation of the vehicle and traffic laws other than those that are strictly
administrative in purpose establish a violation of a statutory duty of care.
Also the vast bulk of case law creates common law negligence liability for
damages occasioned by the operation of an automobile.
Generally
Negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A person is only responsible for the consequences of his or her conduct if the risk of injury is reasonably foreseeable. The exact occurrence or exact injury does not have to be foreseeable; but injury as a result of negligent conduct must have been not merely possible, but probable.
There is negligence if a reasonably prudent person could foresee injury as a result of his or her conduct, and acted unreasonably in the light of what could be foreseen. On the other hand, there is no negligence if a reasonably prudent person could not have foreseen any injury as a result of his or her conduct, or acted reasonably in the light of what could have been foreseen.
Running Red Light
Defendant truck goes through a red light and hits the broadside of
plaintiff's vehicle. Plaintiff was traveling with the green light. While it
appears that the truck was negligent, negligence is not automatic. Going through a red light, under normal circumstances, is not reasonable and is a violation of statute.
However, to determine if an act is reasonable, we must look to the situation existing at the time of the incident. For example, if a police officer directing traffic waved defendant to proceed, going through the red light was not unreasonable.
Similarly, if the light was broken, reasonableness depends on how carefully the driver looked before proceeding through the intersection, not on the color of the light.
B. MOTOR VEHICLE STANDARDS
"Violating "Rules of the Road":
Nearly every aspect of motor vehicle ownership, maintenance, control
and operation is codified in the New York State Vehicle and Traffic Law ,
including speeding, following too closely, failing to keep lookout and failing
to blow horn to warn of danger.
In most instances, defendant's violation of the Vehicle and Traffic Law
establishes defendant's negligence.
The mere contact of two vehicles does not automatically show negligence.
However, it is difficult to devise a scenario where two vehicles, or a vehicle
and a pedestrian, come in contact without one of the parties violating one of
the rules of the road codified in the Vehicle and Traffic Law. Lightning
striking a vehicle and causing it to lose control and strike another car is one
example of the "act of God" scenario that explains an otherwise avoidable
accident. "Black ice" often is argued to be an "act of God" that juries
occasionally accept as a non-negligent cause of an accident.
Statutory Standard of Care Vehicle and Traffic Law Violation
The Vehicle and Traffic Law establishes rules of conduct which must be obeyed by motorists and pedestrians alike. Plaintiff claims that the defendant failed to comply with the Vehicle and Traffic Law.
In considering the evidence in this case, you must determine whether the plaintiff has proved that the defendant failed to comply with (that, those) statute(s). If you find that defendant violated (that, those) statute(s), such a violation constitutes negligence.
You cannot disregard a violation of the statute and substitute some standard of care other than that set forth in the statute.
Motorist's Duty of Care
A motorist has a long established duty to pedestrians, fellow motorists, and the general public, to keep his vehicle under control at all times. A motorist must comply with statutory and common law standards of care in the ownership, maintenance, control, and operation of the vehicle, and must respect the rights of others.
Duty Toward
Other Motorists
In General It was the duty of each of the drivers to operate
(his, her) automobile with reasonable care taking into account the actual and
potential dangers existing from weather, road, traffic and other conditions.
Each of them was under a duty to maintain a reasonably safe rate of speed; to
have (his, her) automobile under reasonable control; to keep a proper lookout
under the circumstances then existing to see and be aware of what was in (his,
her) view; and to use reasonable care to avoid an accident.
A driver is charged with the duty to see that which under the facts and
circumstances (he, she) should have seen by the proper use of (his, her) senses,
and if you find that (plaintiff, defendant) did not observe that which was there
to be seen you may find that (he, she) was negligent in failing to look or in
not looking carefully.
If you find that the driver entered the intersection against the red light in
violation of this section, you must find that the driver was negligent. A green
light is an invitation to proceed. The driver who has a green light has the
right to assume that the light is red for cross traffic and that other drivers
will stop for the red light. However, a driver who has a green light must still
use reasonable care under the circumstances. Thus, if the driver saw or should
have seen another vehicle in the intersection or so near the intersection that a
collision was likely to occur, the driver was required to use reasonable care to
avoid the collision.
Collision at Intersection Controlled by Stop or Yield Sign
Section 1172
of the Vehicle and Traffic Law provides [read applicable portion only here]:
"Except when directed to proceed by a police officer, every driver of a vehicle
approaching a stop sign shall stop at a clearly marked stop line, but if none,
then shall stop before entering the crosswalk on the near side of the
intersection, or in the event there is no crosswalk, at the point nearest the
intersecting roadway where the driver has a view of the approaching traffic on
the intersecting roadway before entering the intersection and the right to
proceed shall be the subject to the provisions of section eleven hundred
forty-two." In applying this provision of the statute, you must first decide
whether the (plaintiff, defendant) actually stopped as required. If you do
decide that (he, she) failed to stop as required, (plaintiff, defendant) was
negligent. If you decide that (plaintiff, defendant) did stop, (he, she) was
required to comply with the provisions of Section 1142(a), which provides:
"Except when directed to proceed by a police officer, every driver of a vehicle
approaching a stop sign shall stop...and after having stopped shall yield the
right of way to any vehicle which has entered the intersection from another
highway or which is approaching so closely on said highway as to constitute an
immediate hazard during the time when such driver is moving across or within the
intersection." This section requires that a driver, after having stopped, yield
the right of way to an approaching vehicle if a collision might occur if (he,
she) proceeds. If you decide that (plaintiff, defendant) failed to yield right
of way as required (plaintiff, defendant) was negligent.
Duty of Driver on Through Highway:
As the driver traveling on the through highway, (plaintiff, defendant) had the right to assume that vehicles traveling on intersecting streets would obey the provisions of
Vehicle and Traffic Law, Section 1142(a). However, a driver on a through highway is still required to use reasonable care and may not proceed recklessly into the intersection in disregard of a vehicle traveling on an intersecting street. A driver proceeds recklessly after (he, she) knows or has reason to know that the other vehicle has entered or is about to enter the intersection without stopping.
Duties of Motorists Where Stop Sign Is Missing or Obscured
In this case (plaintiff, defendant) contends that the stop sign was (missing, obscured). The first question for you to decide is whether the stop sign was (in place, sufficiently visible to be seen by an ordinarily observant person). If you find that it was, (plaintiff's, defendant's) failure to stop was negligence. If you find that it was not, you must decide whether (plaintiff, defendant) knew or in the use of reasonable care should have known that the intersecting highway was a through
highway. If you find that (plaintiff, defendant) knew or should have known that
fact (plaintiff's, defendant's) failure to stop was negligence. If you find that
(plaintiff, defendant) did not know and had no reason to know that the
intersecting road was a through highway, you must then decide if (plaintiff,
defendant) was negligent under the usual right-of-way rule that I just gave you.
Turning Across Traffic
A motorist turning across traffic must use care in
doing so because of the risk of an accident that such a turn creates. (He, she)
must look out for approaching cars but need only wait until conditions are such
that (he, she) may proceed safely. Other motorists must also show consideration
and use due care not to collide with the turning car. The relative rights of the
motorists depend upon distances and speeds.
Close Following
A motorist is required to comply with Section 1129 of the Vehicle and
Traffic Law, which provides: "The driver of a motor vehicle shall not follow
another vehicle more closely than is reasonable and prudent, having due regard
for the speed of such vehicles and the traffic upon and the condition of the
highway." The motorist is required to drive (his, her) car at a sufficient
distance behind the car ahead so as to be able to stop without striking the car
ahead when the car is stopped with due care. The fact that defendant CD's car
ran into plaintiff AB's car which the defendant had been following should be
considered in determining whether the defendant used reasonable care, but,
standing alone, does not require that you find that the defendant was negligent.
Sudden Stopping
A motorist, in stopping (his, her) car was required to do so with reasonable
care and with due regard to others on the highway and to comply with Section
1163(c) of the Vehicle and Traffic Law, which provides: "No person shall stop or
suddenly decrease the speed of a vehicle without first giving an appropriate
signal... to the driver of any vehicle immediately to the rear when there is
opportunity to give such signal." Such a signal must be given either by hand and
arm or by signal light. The signal must be given in enough time to give fair and
adequate warning of the impending stop to operators of other cars who are
driving with reasonable care. If you find that defendant CD made a sudden stop
without first giving an appropriate signal, that fact is to be considered in
deciding whether CD used reasonable care, but, standing alone it does not
require that you find that CD was negligent.
Skidding
The fact that defendant's motor vehicle skidded, if you find that to be the
fact, should be taken into consideration in determining whether the defendant
exercised reasonable care in its operation, but does not, standing alone,
require that you find the defendant negligent. If, taking into consideration all
of the facts and circum- stances existing at the time of the accident, including
the condition of the road and of the tires on the defendant's car, the condition
of the weather and the speed at which the defendant was operating (his, her)
vehicle, you decide that the defendant's car skidded because of (his, her)
failure to use reasonable care, you will find that (he, she) was negligent. If,
however, you decide that the skidding of the defendant's car was not caused by
(his, her) failure to exercise reasonable care, the fact that the car skidded
cannot be the basis of a finding that the defendant was negligent.
Car Leaving Road
The fact that defendant CD's motor vehicle left the road and struck [specify object] should be taken into consideration in deciding whether CD used reasonable care in driving. That fact permits you to find that CD was negligent, but, standing alone, does not require such a finding. If, taking into consideration all of the facts and circumstances existing at the time of the accident, including the condition of the road, the condition of the weather and the speed at which CD was driving you find that CD's car left the road as a result of (his, her) failure to use reasonable care, your finding will be that (he, she) was negligent. If you find that the car did not leave the road as a result of CD's failure to use reasonable care, the fact that the car left the road cannot be the basis of a finding that CD was negligent.
Altered Standards of Care
The New York Pattern Jury Instructions also include instructions for fact patterns that are out of the ordinary. There are times when a defendant is held to a lesser standard of care for reasons such as infancy, disability or insanity.
Extenuating
Circumstances
Defendant may be held to a lesser standard of care if defendant
encountered extenuating circumstances or was operating under some disability.
For example, when faced with an emergency, mere errors in judgment do not
constitute negligence on the part of the defendant who acts reasonably under the
circumstances. (driver entitled to emergency doctrine charge since jury could
find that incident was too brief and unexpected to allow time to blow horn or to
make intelligent choice of best way to avoid or minimize impending collision
when child ran out from behind an ice cream truck,);
A greater standard of care may apply if special extenuating circumstances existed or if plaintiff exhibited a disability. If plaintiff has a disability, or is too young to hold accountable at an adult standard, and defendant is or should have been aware of plaintiff's condition, the defendant may be held to a higher standard of care.
For example, a motorist must take extra precautions when driving in the vicinity
of a children's school. Likewise, a motorist proceeding within the posted speed
limits can be driving too fast under the circumstances if traffic, weather, road
or other conditions dictate a lower speed.
Emergency Situation
A person faced with an emergency and who acts without opportunity to
consider the alternatives is not negligent if (he, she) acts as a reasonably
prudent person would act in the same emergency, even if it later appears that
(he, she) did not make the safest choice or exercise the best judgment. A
mistake in judgment or wrong choice of action is not negligence if the person is
required to act quickly because of danger. This rule applies where a person is
faced with a sudden condition, which could not have been reasonably anticipated,
provided that the person did not cause or contribute to the emergency by (his,
her) own negligence.
Child Crossing Mid-block Near School
A child (plaintiff) crosses the street in the middle of the block, intending to go from the front of her school to the candy store across the street. The defendant driving on the street strikes her. The defendant claims that the child darted out in front of his car.
If defendant knew that the school was located on that block and was aware that at 3:00 p.m. children often cross the street in the middle of the block, the defendant's speed, although within the posted limit, probably was too fast under the circumstance.
Drivers must expect children, wherever they are, to act on childish instincts
and impulses, and must take appropriate precautions. (common law negligence when plaintiff under disability). *
Speed limits
whether posted or established by operation of law, have never been absolutes.
They are the maximums that must be adhered to only when conditions make them
safe. A posted speed limit of 30 mph is not acceptable if ice and snow have left
the road unusually dangerous. Statutory provisions have always said that the
speed limit is a rate of speed, reasonable under the conditions then existing,
regardless of posted or legal pre-set limitations. While under normal
circumstances it is inferred that the posted speed limit is reasonable, that
limit will give way to factors of weather, road conditions, traffic or
construction patterns. Drivers must drive at a rate of speed that is reasonable
under the circumstances, regardless of posted signs or legal requirements.
Statutory Standard of Care -Vehicle and Traffic Law
The Vehicle and Traffic Law establishes rules of conduct that must be obeyed by. motorists and pedestrians alike. Plaintiff claims that defendant failed to comply with the Vehicle and Traffic Law. "requiring the driver to proceed at a speed reasonable and prudent under the existing circumstances..." In considering the evidence of this case, you must determine whether plaintiff has proved that defendant failed to comply with that,
statute's. If you find that defendant violated that statute(s) such a violation
constitutes negligence. You cannot disregard a violation of the statute and
substitute some standard of care other than that set forth in the statute.
Duty of Maintenance
The motorist must use reasonable care to inspect, repair and maintain the
vehicle in safe condition and equip it properly for operation so it is not a
source of danger to others.
The motorist is responsible for: A passenger's injury caused by an
non-apparent mechanical defect or condition, in the vehicle, if the motorist was
aware of the defect and did not notify the passenger Injury to others caused by
a defect known to the motorist, or by an unknown defect a reasonably prudent
person would have discovered
Motor Vehicle Accidents Motorist's Duty Re: Maintenance It is the duty of
the (owner, operator) of a motor vehicle to use reasonable care to have it in a
reasonably safe condition and properly equipped for operation so that the
vehicle may be controlled and not be a source of danger to others. It is the
(owner's, operator's) duty to use such care in the inspection, maintenance and
repair of the vehicle that a reasonably prudent (owner, operator) would use
under the same circumstances.
Brakes
New York's Vehicle and Traffic Laws require that every motor vehicle be
equipped with brakes in good working order. Where brake failure is an issue, there is a specific charge: PJI 2:86.1
Vehicle and Traffic Law §375(1) provides: "Every motor vehicle...shall be provided with adequate brakes...in good working order and sufficient to control such vehicle
at all times when the same is in use..." If you find that the defendant's brakes were not in good working order, your finding will be that the defendant was negligent unless you further find that the failure of the brakes was unexpected and that the defendant had used reasonable care to keep the brakes in good working order.
Pedestrian
Crossing Street
Common law negligence principles, the New York Vehicle and Traffic Law, and some local ordinances establish standards of conduct for pedestrians. Like the motorist, the pedestrian has a duty to exercise the same care that a "reasonably prudent person" in the same circumstances would exercise.
In certain circumstances a pedestrian in violation of the New York Vehicle and Traffic Law may be found negligent.
Generally, a pedestrian in the crosswalk has the right of way if
crossing with the light.
A driver must allow a pedestrian to complete their crossing if the light changes while the pedestrian is in the intersection. VTL 1151(a). Unlike some states, however, New York does not give the pedestrian the right of way every time he steps off the sidewalk. See, e.g., VTL §1151(b). A pedestrian out of the intersection must yield to oncoming traffic. VTL §1152.
Review the following instructions when dealing with accidents involving pedestrians:
Pedestrian crossing highway. PJI 2:75.
Pedestrian walking along roadway. PJI 2:76.
§3:120 Local Ordinances
A pedestrian's violation of a local ordinance or regulation, such as New York City's anti-"jaywalking" ordinances, is "some" evidence of the pedestrian's negligence if the violation was a substantial factor in bringing about an accident.
Furthermore, in some cases, local law, ordinance, rule or regulation may supersede the New York Vehicle and Traffic Law. For example, the New York Vehicle and Traffic Laws do not prohibit crossing outside of a crosswalk per se, but do prohibit crossing diagonally.
However, New York City's anti-jaywalking ordinances make crossing in
the middle of the block a violation punishable by fine. Therefore, if jaywalking
in New York City is a substantial factor in causing an accident, a jury could
find the pedestrian negligent.
Vicarious Liability of Owner
There are certain instances in which the owner of a motor vehicle may be held responsible for the injuries of another caused by the operator of the vehicle, regardless of the fact that the operator was someone other than the owner.
Responsibility for Driver's Actions
There is a presumption that a vehicle owner is responsible for the actions of a driver using the vehicle with the owner's permission, regardless of how the vehicle is used.
Permission can be express or implied. Pursuant to CPLR §388, an owner of an automobile can be held liable for the negligence of the drivers of his or her automobile. The pertinent part of the statute states that "[every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner...." A recent Court of Appeals case clarified the meaning of the phrase "use or operation" of a vehicle as it appears in the CPLR and distinguished its meaning from the same phrase that is used in the Insurance Law section 5103(n)(l) setting when defining entitlement to No-fault benefits.
In Argentina v. Emery World Wide Delivery
Corp., 93 N.Y.2d 554, 693 N.Y.S2d 493
(1999), the Court of Appeals interpreted the
purpose of §388(1) of the Vehicle and Traffic
Law and determined that it is different than
the No-fault law. It held that interpretations of
"use or operation" of an automobile applied in
the No-fault setting should not be adopted in
the negligence setting. The Court stated that
the purpose of §388(1) of the Vehicle and
Traffic Law is "to ensure recourse to the vehicle's owner, a financially responsible party." The Court further determined that
a vehicle's owner can be vicariously liable under §388(1) for injuries resulting
from a permissive user's negligent loading and unloading. It need not be shown
that a person's injuries while loading or unloading a vehicle were produced by
the vehicle. The fact that the injuries were caused by an instrumentality other
than the vehicle will not be fatal to plaintiff's claim, The Court also ruled that reading a proximate
cause limitation into the statute was unnecessary because negligence must be established
under VTL §388. In order to establish liability
in the "use" of a vehicle, negligence must be
shown, and that negligence must be a cause of the injury.
Vicarious Responsibility Owner of Vehicle, for Acts of Operator Permission, Express or Implied
Since the vehicle which plaintiff claims caused (his, her) injury was not being operated by the owner at the time of the accident, you must decide if such operation or use was within the express or implied permission of the owner. Section 388, subdivision, of the Vehicle and Traffic Law provides in part as follows:
Under this statute an owner of a vehicle, although not personally (driving, riding in) it, is fully responsible for injuries resulting from its negligent (operation, use) by another regardless of the purpose for which it was being (operated, used), if in fact such (operation, use) was within the express or implied permission of the owner.
"Express" permission may consist of direct statements or acts by or on behalf of the owner that clearly show consent to such operation or use. "Implied" permission may be shown by more general evidence including, among other things, the relationship of the owner and the operator or user, their previous conduct with respect to this vehicle or other similar vehicles, their conduct immediately preceding the operation or use, and the particular use of the vehicle on the occasion in question.
Restricting Driver's Use of Vehicle
The owner may limit his liability in the first instance by limiting the use of the vehicle. Specifically, the owner may restrict permission to use the vehicle within a specified area or purpose.
If the vehicle is operated outside the specific area or purpose, the owner could
not be liable for the acts of the operator. Id. Moreover, the owner can remove
his vicarious liability for passengers of the vehicle if he specifically forbids
the operator from allowing passengers to ride in the vehicle. It is up to
the jury to decide whether the owner made these restrictions known to the
driver. Conversely, an owner's restrictions on the manner of operation of the
vehicle (for example: "don't drive over 60 mph") do not relieve his liability to
injured parties. The owner is not relieved of liability even if the person who was given the permission to operate the vehicle is not actually operating the vehicle,
as long as he is person is in the vehicle at the time.
The issue of vicarious liability docs not prevent the owner from recovery of damages
from the operator who was at fault. Finally, the owner of the vehicle may be held liable for the injuries of another even if
the vehicle was stolen if the vehicle was stolen because the keys were left in the ignition by the owner or the person driving with the owner's permission.
Vicarious Responsibility Owner of Vehicle, for Acts of Operator Limitation on Use Area, Purpose
In granting permission for the use of a vehicle, an owner may restrict such use to a specified area or purpose. Use of the vehicle beyond such area or for another purpose would then be without the owner's permission, and in that event the owner may not be held responsible for the user's negligence.
Vicarious Responsibility Owner of Vehicle, for Acts of Operator Use or
Operation Under the statute an owner may be held liable for injuries resulting
from negligence in the use or operation of the vehicle by a person using or
operating it with the owner's permission. It is not necessary that the person to
whom the owner granted permission be actually operating the vehicle; if such
person is present in the vehicle while it is being operated by someone else, he
or she is using it with the owner's permission, and the owner will be liable for
any injury caused by the driver's negligence.
Contributory Fault not Imputed
- Vicarious Responsibility Owner of Vehicle, for Acts of Operator Contributory Fault not
imputed: I have already instructed you that a vehicle owner who is sued as a defendant may, under certain circumstances, be held responsible for the negligence of the driver of the vehicle. However, the principle that the owner may be held responsible for the negligence of the driver does not apply .to the owner's own lawsuit to recover for (personal injuries, property damage) sustained by the owner. The owner may recover for (personal injuries, properly damages), even though negligence of the
driver of the vehicle may have contributed to causing such (injuries, damages).
The negligence of the driver, if any, has no effect on whether the owner may
recover for (personal injuries, property damage).
Vicarious Responsibility Owner of Stolen Vehicle Keys Left in Ignition
The automobile which (struck, collided) with plaintiff had been stolen. Plaintiff claims that defendant is liable for the injuries (he, she) sustained as a result of that collision because (defendant, person driving with defendant's permission) negligently left the keys in the ignition switch of defendant's automobile when (he, she) parked it.
Section 1210 of the Vehicle and Traffic Law provides:
"Unattended Motor Vehicle.
(a) No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the vehicle, provided, however, the provision for removing the key from the vehicle shall not require the removal of keys hidden from sight about the vehicle for convenience or emergency."
A violation of the Vehicle and Traffic Law constitutes negligence.
In order to recover in this lawsuit, plaintiff has the burden of proving:
(1) that (defendant, person driving with defendant's permission) was negligent in that (he, she) left the defendant's automobile unattended without (removing, concealing the ignition key), and
(2) that such negligence was a substantial factor in causing plaintiff's injuries.
Double-Parked Vehicle
When a car traveling down a street has its right of way narrowed because of an illegally doubled-parked vehicle and an accident occurs, do not overlook the double-parked car as a possible defendant. This is especially true if the car has been ticketed or noted on the police blotter.
While the double-parked defendant will often move for summary judgment, claiming that a double-parked vehicle docs not directly impact on the accident and therefore cannot be a proximate cause of the accident, the only authority for such a principle is found in cases decided at a time when contributory negligence was a total bar to recovery, rather than the modern law of comparative negligence resulting in apportionment.
Current case law contradicts defense counsel's legal conclusions that the double-parked car is not at least partially responsible for the occurrence.
The Second Department has recently restated its position that, "it is well settled that owners of improperly parked cars may be held liable to plaintiffs injured by negligent drivers of other vehicles".
The question of whether the defendant's breach of the parking violation was a
proximate cause of a reasonable, foreseeable accident is a question of fact for
a jury." The Court of Appeals addressed the issue when a double-parked vehicle was found to be a proximate cause of an accident, which happened in the adjacent moving lane of traffic. There the Court found that "it also takes no stretch of the imagination to appreciate that but for the van's unlawful double parking the Harris car would not have had to travel so close to the east side of the street... more directly absent the van the westerly traveling lane would have been an unblocked avenue into which Harris might have maneuvered to avoid the accident. In short to say the least, the connection between the disobedience of the traffic regulation and the happening of the accident was logical and immediate enough to permit a jury to find that Javidan's negligence [the double-parked vehicle] was a substantial proximate cause of the event which produced the injury,"
CAUSATION
Proximate Cause
To establish liability for negligence, defendant's act or omission must be a proximate cause of plaintiff's injury. In order for the jury to determine whether proximate cause exists, the plaintiff must establish that the defendant's act was a substantial factor in bringing about the injury to the plaintiff. Galioto v. Lakeside Hospital, 123 A.D. 421, 506 N.Y.S.2d 725 (Second Dept. 1986); Pedersen v. Balzan, 117 A.D. 239, 499 N.Y.S.2d 239 (Third Dept. 19^6). See also, PJ1 §2:70 (§3:153).'
§3:151 Case Illustration: Drunk Driver Rear-ended
A drunk driver, Motorist A, is lawfully stopped at a traffic light wailing for the light to change and is hit in the rear by Motorist B. Drunkenness behind the wheel is negligent as a matter of law. VTL §1192; see also PJ1 2:29. However, a drunken driver is not liable for negligence unless his acts or omissions proximately cause an injury. In this example, Motorist A's drunkenness is not the proximate cause because it did not bring about the collision, Instead, Motorist B's failure to see and stop for Motorist A's lawfully stopped vehicle caused the accident.
Unlicensed Driver
Driving without a valid driver's license docs not establish proximate cause in a vehicle accident case. The fact that a motorist
not licensed to drive is immaterial to the issue of causation. The test of causation is whether the manner in which the motorist operated a vehicle caused the accident.
Proximate Cause In General
An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury.
New York Pattern Jury Instructions - Civil, Volume 1A, Third Edition, Unified Court System, 1997, published by West Group.
Practice Tip: Judges often "misspeak" and substitute "the" for "a" in the charge. Be alert for such a change as you are entitled to the proper charge, and upon objection, it constitutes reversible error. Capicchioni v. Morrisey, 205 A.D.2d 959, 613 N.Y.S.2d 499 (Third Dept. 1994).
Multiple Proximate Causes
An accident can have multiple proximate causes. To establish defendant's liability for an injury that had more than one cause, plaintiff must prove that defendant's act or omission was:
One of the proximate causes of the injury, and
A substantial factor in bringing about the injury: For example, an icy road condition is clearly a proximate cause in a skidding accident. However, failing to drive slow enough to control a vehicle in icy conditions may also be a proximate cause, i.e., a concurrent proximate cause of an accident, and may establish the driver's liability for negligence. SeeAyotte v. Garvasio, 186 A.D. 963, 589 N.Y.S.2d 372, aff'd. 81 N.Y.2d 1062, 601 N.YS.2d 463 (1993) (concurrent causes with two motorists); PJI 2:71 (§3:161).
§3:161 PJI 2:71.
Proximate Cause Concurrent Causes PJI 2:71. Proximate Cause Concurrent
Causes There may be more than one cause of an injury. Where the independent and
negligent acts or omissions of two or more parties cause injury to another, each
of those negligent acts or omissions is regarded as a cause of that injury
provided that it was a substantial factor in bringing about that injury. New
York Pattern Jury Instructions - Civil, Volume 1A, Third Edition, Unified Court
System, 1997, published by West Group. For example, assume a pedestrian walking
along the side of the road is struck by a vehicle and left lying in the road.
Shortly thereafter, another vehicle runs over the victim and drags him under the
car. The plaintiff does not survive and it is impossible to distinguish between
the injuries inflicted by the first vehicle from those inflicted by the second
vehicle. The jury is entitled to find both drivers negligent and that the
negligence of each is a "substantial factor" in bringing about plaintiff's
injuries and death. Hawkes v. Goll, 256 A.D. 940, 9 N.Y.S.2d 924, aff'd. 281
N.Y. 808(1939).
IV.
COMPARATIVE NEGLIGENCE
General Principles
Even if the defendant's negligence, causation, and serious injury thresholds have been met, it is still necessary to determine if the plaintiff also was negligent. If defendant pleads and produces credible evidence of plaintiff's own culpable conduct, plaintiff's recovery will be reduced in proportion to plaintiff's share of negligence. CPLR §1411.
This means that a small claim with any comparative negligence may not be worth accepting, while a major injury case with significant negligence on behalf of plaintiff still may be worth accepting.
Note: The comparative negligence system replaced the contributory negligence system in 1975. Prior to September 1, 1975, any negligence on the part of the plaintiff was a total bar to recovery.
Raising and
Litigating Issue:
To raise the issue of plaintiff's negligence, defendant must plead comparative negligence as an affirmative defense in the answer. See CPLR §3211, For example, the defense pleads:
For a separate and distinct affirmative defense to the alleged cause(s) of action of plaintiff(s) and in diminution of damages, defendant(s), allege(s), upon information and belief:
1. That whatever injuries or damages the plaintiff(s) may have sustained at the time and place mentioned in the verified com-
plaint, were cause, in whole or part, by the culpable conduct including but not limited to assumption of risk, if applicable, of the said plaintiff(s), said conduct having contributed thereto.
2. The amount of damages recovered, if any, shall therefore be diminished in the proportion which the said culpable conduct including, but not limited to assumption of risk, if applicable, attributable to the plaintiffs), bears to the conduct which caused the said damages.
Defendant then has the burden of proving plaintiff's negligence. CPLR §1412; Inglut v. Consolidated Rail Corp., 185 A.D.2d 614, 586 N.Y.S.2d 41 (Fourth Dept. 1992) (error for trial court to submit plaintiff's negligence to jury when defendant had failed to plead plaintiff's culpable conduct). If defendant alleges plaintiff negligence and presents supporting evidence, the court may submit the issue to the jury to apportion fault. See PJI 2:36 (§3:211); and see PJI 2:36.1.
§3:211 PJI 2:36 (part). Comparative Negligence
PJI 2:36.
Comparative Negligence Bifurcated Trial
If you find that the defendant was negligent and that defendant's negligence contributed to causing (the accident or other appropriate characterization of the event), you must next consider whether plaintiff (decedent) was also negligent and whether plaintiff's (decedent's) conduct contributed to causing (the accident or other appropriate characterization of the event).
The burden is on the defendant to prove that plaintiff (decedent) was negligent and that (his, her) negligence contributed to
causing (the accident or other appropriate characterization of the event).
If you find that plaintiff (decedent) was not negligent, or if negligent, that (his, her) negligence did not contribute to causing (describe, e.g., the accident or other appropriate characterization of the event), you should go no further and report your findings to the court.
New York Pattern Jury Instructions - Civil, Volume 1A, Third Edition, Unified Court System, 1997, published by West Group.
§3:220 Apportioning Fault
The comparative negligence system provides for an apportionment of responsibility, resulting in a decrease in plaintiff's award based on plaintiff's share of responsibility. The court instructs the jury to determine
(1) the full amount of damages the plaintiff sustained, and (2) what percentage of negligence to attribute to plaintiff's own conduct, if any. See PJI 2:36 (Apportionment) (§3:221). Using the jury's determinations, the court computes a reduction of the damages based on the percentage of plaintiff's culpable conduct. CPLR §1411.
§3:221 PJI 2:36.
Apportionment
PJI 2:36 (part).
Comparative Negligence Bifurcated Trial
If, however, you find that plaintiff (decedent) was negligent and that (his, her) negligence contributed to causing (the accident or other appropriate characterization of the event), you must then apportion the fault between plaintiff (decedent) and
defendant (and, where appropriate, AB, a third person).
Weighing all the facts and circumstances, you must consider the total negligence, that is, negligence of both plaintiff (decedent) and defendant (and where appropriate, AB) which contributed to causing (describe, e.g., the accident or other appropriate characterization of the event) and determine what percentage of fault is chargeable to each. In your verdict, you will state the percentages you find. The total of those percentages must equal one hundred percent. . . .
New York Pattern Jury Instructions - Civil, Volume 1A, Third Edition, Unified Court System, 1997, published by West Group.
Safety Belt Defense
Plaintiff's failure to use a safety belt may affect the outcome of a case. Plaintiff may not recover for injuries that the use of an available and operational seatbelt would have prevented. Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916 (1974). The seatbelt defense requires that functioning seatbelts must have been available to the plaintiff. DiMauro v. Metropolitan Suburban Bus Authority, 105 A.D.2d 236, 483 N.Y.S.2d 383 (Second Dept. 1984), citing Spier. VTL §383 requires seatbelts
in all vehicles manufactured after June 30, 1964 and sold in New York. Whether,
at the time of the accident, seatbelts were installed, working and available is
a question of fact.
Seatbelt Charge
The defendant claims that some or all of the plaintiff's claimed injuries were caused by (his, her) failure to use an available seatbelt and that plaintiff cannot recover for those injuries.
The defendant has the burden of proving that some or all of the plaintiff's injuries were caused by (his, her) failure to use an available seatbelt.
If you find that plaintiff failed to use an available seatbelt and that some or all of the plaintiff's injuries resulted from (his, her) failure to use the seatbelt, you may not make any award for those injuries you find (he, she) sustained because of such failure to use the seatbelt....
New York Pattern Jury Instructions - Civil, Volume 1A, Third Edition, Unified Court System, 1997, published by West Group.
Practice Tip: In many older vehicles, only lap belts are available in the rear seats. There is a substantial body of literature and research documenting the fact that wearing just a lap belt often causes more severe injuries or death than going without. If this is the structure of your case, retain a good seatbelt expert and you will be able to overcome this defense.
Infant's Comparative Negligence
In comparative negligence cases, an infant plaintiff is held to the standard of care exercised by a reasonably prudent child of like years, experience, intelligence and degree of development under the same circumstances. Thus, a child who ran into the street from between two parked vehicles and was struck by a car might still recover against a driver who was not paying attention, despite the
child's own culpable conduct. Dugan v. Dieber, 32 A.D.2d 815, 302 N.Y.S.2d 423 (Second Dept. 1969). See also, PJI 2:48 (infant's standard of care in comparative negligence case); PJI 2:49 (infant plaintiff's violation of statute).
Note: In general, an injured infant pedestrian can overcome a comparative negligence defense more readily than can an injured adult pedestrian.
Mentally Deficient Plaintiff's Comparative Negligence
Persons who are considered mentally deficient by reason of insanity, weak-mindedness or old age are held to the standard of care for their own safety for which they are capable and for which reasonable persons with the same mental capacity would be capable of avoiding danger. Horton v. Niagara Falls Memorial Medical Center, 51 A.D.2d 152, 380 N.Y.S.2d 116 (Fourth Dept. 1976).
Intoxication
If there has been drinking, even if you have a passenger, your case may be very weak or even without merit. There are several defenses to be familiar with before you sign up the client and before you make
representations about what a great case he has. If both parties have been drinking and are intoxicated, then the courts commonly hold that this was a "joint participation and contribution" and dismiss the action upon summary judgment motion at the completion of discovery. This doctrine is found in Harris v. Hurlburt, 373 N.Y.S.2d 480 (Sup. Ct, Seneca County, 1975). There both the driver and passenger were intoxicated. The passenger, who ended up as a paraplegic, was "no caused" and the verdict sustained. See also, Prunty v. Keltic's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 (Second Dept. 1990);
(Rev. 1,7AX»
General Obligations Law §11-101. But see, Ciserano v. Sforza, 130 A.D.2d 618, 515 N.Y.S.2d 548 (Second Dept. 1987).
Ciserano, a passenger case, was not dismissed despite significant testimony indicating the passenger's culpability. Testimony was given that the passenger was "hanging out" of the window on the passenger side with a bottle of liquor as the vehicle traveled between 60- and 80-miles per hour. The Appellate Division held that the question of whether the passenger assumed the risks inherent in riding with a known intoxicated driver and his comparative negligence should be contained in one jury question. Ciserano v. Sforza, supra.
The recognized exception is where you are able to establish that the passenger/plaintiff not only did not contribute to the driver's intoxication, but also was not even aware of the fact. That can occur where they were on opposite sides of the room during the evening and when they left, the driver "appeared" sober and in control. These are facts you must establish.
There may be another collateral claim and additional coverage here if the intoxicated driver was underage. If he had been provided alcohol by a third party, not the claimant, then that third party might be a proper party and his homeowners' coverage would apply, even in this automobile situation. If the driver was supplied additional alcohol once he appeared to be impaired, even where ho was not underage, the person supplying the alcohol can be liable to injured third parties under the New York Dram Shop act. General Obligation Law §11-101.
Joint Contribution
Another dangerous situation that can render a passenger case unacceptable is one involving "joint contribution." It is similar to the above but differs as articulated in the Court of Appeals case of Mitchell v. Shoals Inc., 19 N.Y.2d 338, 280 N.Y.S.2d 113 (1967). There a
woman and her boyfriend were drinking to excess. The woman passed out at the bar. The man continued drinking to the point of intoxication whereupon he climbed into his car and promptly had an accident. The woman had been loaded into the car, unconscious. The court held that she had not assumed the risk of riding with the intoxicated driver because she was not conscious when she got into the car. Furthermore, since she had not purchased any drinks for the driver, she cannot be held to have contributed to his intoxication.
In contrast, however, in Bergemn v. Hyer, 55 A.D. 1001,391 N.Y.S.2d 767 (Fourth Dept. 1977), the plaintiff claimed to have been asleep when the intoxicated defendant drove the vehicle away from the bar and into a detour sign. The defendant testified that they had a conversation in the vehicle just before he left. As such, it became a question of fact for the jury. In Schrader v. Carney, 198 A.D.2d 779, 604 N.Y.S.2d 376 (Fourth Dept. 1993), the principle was expanded such that if the plaintiff had purchased even one drink, her action would be totally barred. The plaintiff in Schrader, made a very small, unspecified contribution toward the purchase of beer some of which was ultimately consumed by the driver. The appellate division affirmed summary judgment in favor of the defendant because "her monetary contribution constitutes 'guilty participation in his intoxication.'"
§3:280 Social Host
General Obligations Law 11-100 permits claims against the social host who provides alcohol to a minor, which in turn contributes to an accident. Note that Article 16 of the CPLR has been held to apply such dial the social host is only responsible for their percentage of liability. Van Vlack v. Baker, 242 A.D.2d 704, 663 N.Y.S.2d 49 (Second Dept. 1997).
§3:290 [Reserved]
BURDEN OF PROOF
General principles
In assessing the liability factor , the most crucial judgment is whether
there is enough credible evidence to persuade the jury to accept plaintiff's
version of the events. Ask yourself the question: does the evidence that
supports plaintiff's claim more nearly represent what took place than the
evidence opposed to the claim? If the answer is not a fairly strong "yes,"
decline the case. The burden of proof in a civil case (fair preponderance of the
credible evidence) is much less stringent than the burden of proof in criminal
cases (i.e., guilt beyond a reasonable doubt). Nonetheless, the preponderance
standard requires plaintiff to convince the jury that the events took place
substantially in the manner plaintiff alleges. If the preponderance of evidence
does not favor one side or the other, the jury must decide in favor of
defendant.
Differing Burdens of Proof
When Burden Differs on Different Issues
To say that a party has the burden of proof on a particular issue means that, considering all the evidence in the case, the party's claim on that issue must be established by a fair preponderance of the credible evidence. The credible evidence means the testimony or exhibits that you find worthy of belief. A preponderance means the greater part of the evidence. That does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase preponderance of the evidence refers to the quality of the evidence, its weight, and the effect that it has on your minds. In order for a party to prevail on an issue on which he or she has the burden of proof, the evidence that supports his or her claim on that issue must appeal to you as more nearly representing what happened than the evidence opposed to it. If it does not or if it weighs so evenly that you are unable to say that there is preponderance on either side, you must decide the question against the party who has the burden of proof and in favor of the opposing party.
New York Pattern Jury Instructions - Civil, Volume 1A, Third Edition, Unified Court System, 1997, published by West Group.
Reduced Burden:
Death
In a negligence case (not involving wrongful death), the standard for the burden of proof on a particular issue is a fair preponderance of the credible evidence. However, in wrongful death cases the plaintiff need only convince the jury that it is more probable than not that the defendant was negligent and that negligence was a substantial factor causing the deceased's death. Noseworthy v. The City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948); Nieves v. New York City Housing Authority, 200 A.D.2d 427, 606 N.Y.S.2d 224 (First Dept. 1994). See PJI 1:61.
This jury instruction (PJI 1:61) is called the Noseworthy charge, after the Noseworthy case, supra. The Court of Appeals in Noseworthy held that a plaintiff who died as a result of somehow getting down from the platform in defendant's subway station and being struck by a subway train is not held to as high a degree of proof of the cause of action as a plaintiff who survived and could explain the occurrence himself.
This reduced burden obviously helps the plaintiff's case. It even applies if witnesses are available to describe the accident. Schafer v. The Mayor of New York, 154 N.Y. 466 (1897). That the defendant also died as a result of the same occurrence has no effect on plaintiff's burden of proof. Cole v. Swagler, 308 N.Y. 325, 125 N.E.2d 592 (1955).
Until recently, PJI 1:61 applied only in cases where plaintiff (the personal representative) alleged that the accident at issue resulted in the injured party's death. Schechter v. Klanfer, 28 N.Y.2d 228, 321 N.Y.S.2d 99 (1971). However, in Farrell v. State, 46 A.D.2d 697, 359 N.Y.S.2d 922 (Third Dept. 1974), the court applied the reduced burden where the party injured in the accident died before trial from causes unrelated to the accident.
Reduced Burden: Amnesia
The burden of proof for a plaintiff who cannot recount the events of the accident because of amnesia caused by the accident is less than the burden of proof for a plaintiff who could remember and describe the accident. Sawyer v. Dries & Krump Manufacturing Co., 67 N.Y.2d 328, 502 N.Y.S.2d 696 (1986). See also, PJI 1:62. Plaintiff has the burden of proving, by clear and convincing evidence, that plaintiff suffers a loss of memory caused by the accident. This must be accomplished by competent medical testimony.Plaintiff's Noseworthy claim can be grounds supporting plaintiff's motion for a non-bifurcated trial. The rationale is that medical testimony will be required in the liability portion of the trial and it would be redundant to require the physician to make a second appearance. The Second Department requires a bifurcated trial, and other depart-
ments are using bifurcated trials more frequently, therefore using the Noseworthy argument may help avoid the new trend towards bifurcated trials and permit a single trial on all the issues.
FINAL DECISION
Assessing Liability
Now return to the first section and reread the list of questions. Have they all been answered? If not, further investigation is needed. If they have been, then determine if the defendant's negligent conduct, causation and burden of proof issues have been answered in the affirmative. If any question has not been answered affirmatively,
the case may be in jeopardy.
If all three questions have been answered affirmatively, then consider the plaintiff's conduct issues and ask:
Is there credible evidence of the plaintiff's own culpable conduct?
If the answer is no, accept the case. If the answer is yes, then ask yourself:
Does the remainder of potential recovery minus plaintiff's share of culpability reduce the expected recovery enough to minimize attorney profit? If yes,
the case may be in jdeopardy.
Unlike the criminal justice system, which was designed in part to punish and
rehabilitate the defendant, a principal goal of the civil system is to fairly
compensate the injured party (i.e., plaintiff) for the injuries he or she
sustained. The purpose of the award of damages is to restore the plaintiff to
the position plaintiff held prior to the injury. In the case of a motor vehicle
accident this means that the plaintiff should be compensated for any property
damage, medical expenses and lost wages occasioned by the defendant's negligence
as well as awarding a sum that fairly and adequately compensates the victim for
any pain and suffering that was caused by the accident.
Damages General
If you find that the plaintiff is entitled to recover from the defendant, you must render a verdict in a sum of money which will justly and fairly compensate the plaintiff for all loss resulting from the injuries (he, she) sustained.
New York Pattern Jury Instructions - Civil, Volume 1A, Third Edition, Unified Court System, 1997, published by West Group.
Case Acceptance Criteria
The potential damage award is one of the most critical factors in determining case
acceptability. Before accepting a plaintiff's case, estimate the client's potential recovery. This requires a complete analysis of the damages sustained, i.e., each element of potential recovery. But, first and foremost, you must determine if the case even qualifies for civil action under New York State Ins. L. Article 51 (the "No-fault" laws). "Serious injury"
Requirement of No-fault Law
Before estimating the amount of recovery, first determine if the client is entitled to any recovery at all. New York's No-fault law [Insurance Law, Art. 51], restricts the availability of civil damages in auto cases, and consequently limits the exposure of auto accident insurers.
Under the No-fault system, to recover any civil damages for "non-economic loss" (e.g., pain and suffering) an auto accident victim must have sustained a "serious injury" as defined by statute. See Ins. L. §§5102(c) and (d), 5104, and see §5:50 et seq. for more on definitions of "serious injuries". If an injury fails to meet the serious injury threshold for civil damages, the injured party's recourse is an insurance claim subject
to statutory recovery limits.
Note, however, that when an injured party sues a non-covered party, proof of a serious injury is not required. Ins. L. 5104(b). For example, when a passenger on a motorcycle is injured, he need not suffer a "serious injury" to maintain an action, as motorcycles arc not covered by No-fault, therefore the No-fault laws do not affect the personal injury claim of
the passenger against the "non-covered person."
Past and Future Damages
Plaintiff is entitled to compensation for:
Generally, all expenses and losses actually incurred up to the date of the verdict that are not collaterally reimbursed. See CPLR 4545 for further clarification.
Losses that, plaintiff reasonably can be expected to incur in the future as a direct result of the occurrence. See Personal Injury Actions, Defenses and Damages §3.03 (1) Matthew Bender.
Past damages include past:
Ambulance fees
Emergency room fees
Hospital costs and expenses
Physician's fees
Other medical costs such as nursing and therapy
Prescription and non-prescription drugs
Prosthetic devices, canes, walkers, etc.
Lost earnings
Reasonable transportation to medical care
Household help
Non-economic loss, such as pain and suffering
Future damages must be non-speculative and include future:
Hospital costs and expenses
Physician's fees
Medical costs such as nursing and therapy
Prescription and non-prescription drugs
Prosthetic devices, canes, walkers, etc.
Reasonable transportation to medical care
Household help
Loss or diminution of earning capacity
Non-economic loss (e.g., pain and suffering)
See Personal Injury Actions, Defenses and Damages, §3.04(1) Matthew Bender.
§4:13 Case Acceptance Decision "Minor" Injuries
Without injury, it does not matter how strong the case for liability. As the factual situation complicates, so too must the analysis. Assume you are approached by a driver with a case that is light on the injuries. There are no fractures and only some slight lacerations that required suturing. Next, evaluate the likelihood of permanent scarring or disfigurement. Obviously, if the scarring is very significant, your decision will be easy. But if it is slight or minimal, you must make a value judgment that you will live with for several years and in which you will be investing several thousand dollars in disbursements.
The Fourth Department generally has been sympathetic in scar cases us qualifying under the No-fault statute. A significant factor contributing to a favorable decision is the availability of supporting photographs. If you decide to accept the case, those must be taken to preserve the fresh, and very visible, effects of the injury. In fact, without photographs, the record is not preserved on that issue for judicial review. Photographs were the deciding factor in cases taken to the appellate divisions from unfavorable verdicts in numerous cases such as:
Gushing v. Seemann, 247 A.D.2d 891, 668 N.Y.S.2d 791 (Fourth Dept. 1998) (permanent, visible scar on the scalp that is seven (7) inches long)
Landsman v. Bunker, 142 A.D.2d 986, 530 N.Y.S.2d 407 (Fourth Dept. 1988) (one-and-one-quarter [1-1/4] inch "depressed scar on plaintiff's chin" is a qualifying injury)
Zulawski v. Zulawski, 170 A.D.2d 979, 566 N.Y.S.2d 141 (Fourth Dept. 1991) (two-and-one-half [2-1/2] inch scar in the hairline; photograph demonstrated that the plaintiff had a receding hairline as did some of the reviewing Justices)
Hutchinson v. Beth Cab Corp., 204 A.D.2d 151, 612
N.Y.S.2d 10 (First Dept. 1994). First Department case did not find a serious
injury for a two-inch laceration above the right eyebrow. The scar had healed
with a good result and the First Department only had pre-healing photos that were "photocopies of photocopies".
Also note that the statute describes "significant disfigurement" as that which would make an individual "the object of pity or scorn". PJI §2:88B; Waldron v. Wild, 468 N.Y.S.2d 244 (Fourth Dept. 1983). It is very possible that extreme abrasions and bruises could be a "significant disfigurement" though they are not permanent. This result has been reached in other jurisdictions with similar statutes. See, Arkin
v. Industrial Com. of Colorado, 358 P.2d 879 (Colo. 1961); Cagle v. Clinton
Cotton Mills, 56 S.E.2d 747 (SC 1949)
Presumably, significant abrasions and bruising might qualify. Since those
injuries do heal, photographs taken Immediately depicting those conditions can
be the difference between accepting or rejecting the case.
90/180-Day Disability
Assume that the client again complains to you of back pain but this client does not have a 90-day period of
disability. This client is 67 years old and presents with neck complaints. He had been a construction worker before he retired.
Causal relationship is always a factor in No-fault cases, but do not overlook the possibility of the aggravation or exacerbation of a pre-existing condition. An asymptomatic condition can be exacerbated to the point that it becomes debilitating. With the properly worded medical report, an exacerbation can constitute a "serious injury". In these type of cases, it is recommended that you arrange a personal meeting with the doctor to ask the appropriate questions.
Case Study: Client with Back or Neck Pain
Say the potential client, driver or passenger, comes to you with a report of severe back pain and/or neck complaints that the client attributes to the recent motor vehicle accident. And assume that there has been no spinal surgery resulting from the accident. Scrutinize this client carefully, as there are numerous potential pitfalls that can undermine the claim and result in summary judgment against the client.
First determine whether there are. other qualifying injuries. Of course you ask about fractures and lacerations and operations. Absent any positive responses, next evaluate the possibility of a 90/180 day disability that qualifies the client regardless the extent of his back injuries. That section provides:
"...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."
Insurance Law §5102(d). In simplest terms, ask the client whether he was unable to work at his job for three of the first six months after the accident. If he was able to work at his job, then in all likelihood he does not qualify under this section of the statute.
You can evaluate the seriousness of the injuries and disability to a degree based upon the answers and discussion to this series of questions.
Did you incur any fractures?
Did you break (fracture) any teeth?
Did you sustain any cuts or lacerations requiring suturing?
If so, where are they located?
Are they on a visible part of your body?
Do you have photographs?
Were the photographs taken while the sutures were still in place?
Do you have photographs taken within six months of the accident?
Were you off work for three months during the first six after the accident?
If your back was injured,
What treatment are you receiving?
Did you receive chiropractic treatments?
Are you or have you seen a neurologist?
Has anyone recommended an MRI or an EMG?
If you had an MRI, read the findings to me or fax them in.
Are the MRI findings acute or degenerative?
Have you had prior back problems?
If you have extreme headaches,
Does your jaw "click" when you open it?
Have you seen your dentist?
Have you been evaluated for TMJ?
These are not necessarily "yes" or "no" questions. It may take some probing on your part. If sufficient time has not lapsed to permit you to determine whether there will be a three-month disability, you must decide whether you will retain the client at that point or delay until you are more certain about the qualifying injury. However, unless there is a strong suggestion or proof that the case has a qualifying injury, decline the case with the caveat that if things worsen, the client should call you back and report any significant changes.
In the meantime, you are not spending your time following ten or twenty non-qualifying cases. Spend your time on the cases that you have a reasonable expectation will be worthwhile.
Case Study: Back Injury and Disc Herniation
The interplay of Ins. L. §5102 (d) with the back injury and disc herniation
often presents as follows: The client above does not have a 90-day qualifying
injury, is 67 years old and presents with the back complaints. He shows you a MRI that demonstrates three herniated discs at C3-4, C4-5 and C5-6. Fusion surgery has been recommended for C5-6 as soon as it can be scheduled. This has the makings of a very good case. You retain the client and send out for the medical records. However, in this case, too, there are pitfalls. There is no treatment upon failure of the second procedure.
You could have a very young client with permanent, severe unremitting pain. There is no surgical treatment after the second surgery. This condition is permanent, invasive, leaves small scars about the ear and constitutes a qualifying injury. Benz v. Hannon, 170 A.D.2d 141, 652 N.Y.S.2d 460 (Fourth Dept. 1996); Zulawski v. Zulawski, 566 N.Y.S.2d 141 (Fourth Dept. 1991) (laceration on the forehead of the plaintiff that required twenty stitches, leaving a two to two-and-a-half inch scar and was still visible after six-and-a-half years qualified as disfigurement required for threshold).
Practice Tip: TMJ often is undiagnosed by the treating general practitioners who may not have a great deal of exposure to traumatically induced TMJ. Unless you are alert for this condition, you may decline a serious case because you believe the physician's diagnosis of migraines or even psychosomatic disorder. Consider asking the following questions to your standard intake form:
Do you have an increased number of headaches since your accident?
Are the headaches significantly worse than what you experienced prior to the accident?
Are the headaches relieved by medication?
Are you photophobic?
Are you able to eat solid foods as before or is there a change?
Have you consulted with a dentist since the accident?
Did he consider or talk to you about TMJ?
Have you been evaluated for TMJ by any medical practitioner since the accident?
When you open your jaw, do you hear, feel or experience a "clicking"?
Did you ever have the clicking symptom prior to the accident ?
Since headaches and "clicking" are recognized symptoms of TMJ, until your client with these symptoms has been evaluated for the condition, do not decline the case. In a like manner, you might want to refer the client to a TMJ specialist for an evaluation.
Acceptability/
Profitability Standard
Even if a case settles easily, it still takes more than 75 separate
steps to open the file, collect the medicals and specials, negotiate the file,
get the client's consent and then collect and disburse the funds. A case must be
worth more than $2500, even in jurisdictions that have low disbursements and
overhead, or it cannot be taken and handled profitably. If liability or
threshold is contestable, the recovery must be equal to at least triple that
figure, even if the case will settle. Any case that will require a trial must be
worth more than $25,000 or it will cause a loss to the attorney who handles it.
Pain and Suffering
Conscious pain and suffering damages compensate the victim for various forms of non-economic injury. Il is the hope of the system that through an award of damages, the plaintiff can be restored to his or her pre-accident condition. In addition to the physical pain caused by plaintiff's injury, plaintiff can recover for mental and emotional suffering caused by his or her injuries. Specifically, the jury may consider and award damages for:
Emotional upset of the injured party; Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65 (1969) (woman's emotional upset caused by miscarriage following auto accident is compensate)
Even if there is no history of prior back complaints in any of the medical records, you still must verify the causal relationship early on. This must appear in a medical report. If it is not in writing, the prima facie case has not as yet been made. Establish this before the case is placed into suit or any significant expenses are incurred. The problems you face are that with someone "elderly", there is going to be degenerative changes in the spine. No doubt the MRI also refers to osteophytes narrowing the spinal canal. The "herniated" discs also may be degenerative in nature as opposed to traumatic. Do not assume that the accident caused them. A physician must state that the injuries were caused by the accident. Pose this question directly and get the answer early.
In a significant number of instances, the treating physician and surgeon will not support a traumatic, causal relationship. In order to properly evaluate and pursue the case, you must know whether:
Injury is really a herniated disc requiring surgical intervention
Injury is an aggravation of a pre-existing degenerative condition that has been activated to the point that it now needs surgical intervention, or
Whether there will be no supportive medical causal connection and you are dealing solely with a 90-day disability.
Since this case has significant potential damages, you did retain the client. However, you must be careful to establish causation. Therefore, unless there are statute of limitations problems, do not put it into suit until the causal connection is established. If there is no causal connection of any nature and there is no 90-day threshold, then decline the case at this pre-suit juncture. This rationale applies even if the client was a safety-belted passenger in a car that was rear-ended by a "deep pocket" defendant.
No matter how favorable the liability and the coverage, the client must have demonstrable injuries with objective signs and symptoms. Assume he has severe neck pain for which he has seen and been treated by physicians and chiropractors. The pain caused him to miss approximately one month from work. He advises you that the pain has been constant and chronic. Ultimately, this is a case you will have to decline, or in the alternative, 117 to survive summary judgment. The Court of Appeals has held that subjective complaints of pain, even those where a physician has testified that the pain is caused by small ripping of the muscle resulting in intramuscular scar tissue, do not meet the No-fault threshold. Scheer v. Koubek, 70 N.Y.2d 788, 518 N.Y.S.2d 788 (1987).
Temporal Mandibular Joint (TMJ)
Your client registers complaints to you of significant headaches that are totally new and not related to any prior conditions or problems. He does not have any significant spinal or back pathology that would explain the symptoms. The physicians are not being helpful or supportive. Do not decline the case out of hand.
Ask the client if he has any "clicking" in his jaw. If he replies in the affirmative and also tells you that this is a new symptom, refer him to a temporal mandibular joint (TMJ)
specialist. This is a condition that is often overlooked by the neurological
specialists. When the condition is traumatically related, it frequently is only
treatable by surgery. This is a complicated surgery that repositions the disc
between the mandible and the upper jaw and has a twelve percent (12%) failure
rate. For the 12% for whom the surgery docs not relieve the symptoms, a second
surgery is required. The disc is totally removed with the expectation that scar
tissue will form a pseudo disc. This surgery only has a thirty percent (30%)
sue- Plaintiff's ability to enjoy life, also referred to as hedonistic
damages, includes ability to perform daily tasks, participate in activities that
were part of the victim's life before the injury, and experience the pleasures
of life.
Personal Injury Injury and Pain and Suffering
If you decide that defendant is liable, plaintiff is entitled to recover a sum of money which will justly and fairly compensate (him, her) for any injury and conscious pain and suffering to date caused by defendant. [If there is an issue relative to the level of plaintiffs awareness, the following should be charged.] Conscious pain and suffering means pain and suffering of which there was some level of awareness by plaintiff (decedent).
Loss of Enjoyment of Life
In determining the amount, if any, to be awarded plaintiff for pain and suffering, you may take into consideration the effect that plaintiff's (decedent's) injuries have had on plaintiff's ability to enjoy life (have had on decedent's ability to enjoy life up to the time of death). Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in the activities which were a part of the person's life before the injury, and to experience the pleasures of life. However, a person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that (he, she) has suffered.
If you find that plaintiff (decedent), as a result of (his, her) injuries, suffered some loss of the ability to enjoy life and that plaintiff (decedent) was aware, at some level, of a loss, you may take that loss into consideration in determining the amount to be awarded to plaintiff for pain and suffering to dale.
New York Pattern Jury Instructions - Civil, Volume 1A, Third Edition, Unified Court System, 1997, published by West Group.
Valuation Left to Jury
No definitive guidelines aid the jury in placing a value on intangible items such as pain and suffering. The amount of compensation is left to the jury's collective conscience, but is subject to review by the trial court as well as the appellate courts. See CPLR §5501.
Awareness Required
To recover pain and suffering damages, the plaintiff must be conscious of the pain or suffering. A victim in a coma is not entitled to an award for conscious pain and suffering because the victim lacks cognitive awareness.
The mere inability to describe the injury, however, will not bar recovery for this clement of damages. Scolavino
v. State, 62 N.Y.S.2d 17 (1946) (Court of Claims) (mentally retarded plaintiff
entitled to pain and suffering damages even though incapable of describing
feeling he had), modified on other grounds, 67 N.Y.S.2d 202 (1946).
Testimony that an infant cried upon receiving painful stimuli, and smiled or laughed at pleasurable stimuli, can prove cognitive awareness. Walsh v. Stolen Island OB/GYN
Assoc., 598N.Y.S.2d 17 (Second Dept. 1993), appeal denied 606 N.Y.S.2d 517 (1993) ($650,000 pain and suffering award upheld for infant victim who lived eight years in vegetative state but responded to painful and pleasant stimuli).
Causal Relationship
In addition to proving defendant caused the accident plaintiff must prove that the accident caused plaintiff's injury. Otherwise, plaintiff cannot recover damages for plaintiff's injury even against a negligent defendant.
The jury determines if the accident proximately caused plaintiff's injury. Proving causation does not always require medical testimony, but usually will. When the injurious results of the negligent acts are within the experience and observation of a layperson, the jury can infer the causal relationship from the facts. Shaw v, Tague, 257 NY 193, 177 NE 417 (1931).
In Aylesworth v. Evans, 225 A.D.2d 850, 638 N.Y.S.2d 982 (Third Dept. 1996), The decedent had struck her head on the car windshield, which led to her
hospitalization, and died less than one month after the accident. The court held that a finding that passenger's Alzheimer's disease and not the automobile accident was the proximate cause of her death was supported by expert testimony to the effect that passenger sustained a "piddling" head injury. Alzheimer's disease prevented her from becoming oriented to hospital, which led to exacerbation of passenger's congestive heart failure and ultimately to pneumonia, which was probable immediate cause of death. See also, Cheng v. Met Transport, 213 A.D.2d 581, 624 N.Y,S.2d 268 (Second Dept. 1995), as an example of an injury not proximately caused by the accident.
VEHICLE ACCIDENTS Case Study: Heart Attack
Plaintiff's vehicle is hit in the rear while waiting at a traffic light. Plaintiff gets out of the car, says he feels fine, but appears pale and sweaty. He sits down and awaits the police, refuses medical attention, and drives himself home. Later that night he feels lightheaded and has a pain that he attributes to overeating. He goes to sleep and dies of a heart attack during the night. He had a history of chest pain and occasional shortness of breath, but no major history of cardiac problem. In an unreported opinion, the trial judge ruled that the jury would decide if the accident caused the heart attack death.
Aggravation and
Activation of Injuries
The aggravation or exacerbation of a preexisting condition, or the activation of a latent condition, can be as actionable as a direct injury. To be liable, the defendant must proximately cause the aggravation or activation. Ortiz v. Mendolia, 116 A.D.2d 707, 497 N.Y.S.2d 761 (Second Dept.
1986), and the aggravation or activation must be pleaded properly.
If plaintiff sustained an aggravation of a pre-existing condition, damages
are reduced by the pre-existing problem. "Where defendant's wrongful act does not cause a diseased condition but only aggravates and increases the severity of a condition existing at the time of the injury, plaintiff may recover only for such increased or augmented sufferings as are the natural and proximate result of defendant's act."
Bowen v. State, 24 Misc.2d 962, 207 N.Y.S.2d 348,
354 (1960)(Court of Claims), citing 25 CJS Damages §21, pp. 479-480.
If plaintiff sustained an activation of a preexisting condition, there is no
reduction. Owen v. Rochester-Penfield Bus Co., 304 N.Y. 457, 108 N.E. 606
(1952).
Asserting Claim
To recover damages for aggravation or activation, plaintiff must:
include in the pleadings a claim for aggravation or exacerbation of the preexisting condition, or activation of the latent pre-existing condition. De Mento v. Nehi Beverages, Inc., 55 A.D.2d 794, 389 N.Y.S.2d 909 (Third Dept. 1976).
Specify in the bill of particulars that plaintiff will rely on a claim of aggravation of a pre-existing condition, or activation of latent pre-existing condition. Weisent v. City of New York, 29 A.D.2d 776, 287 N.Y,S,2d 702 (Second Dept. 1968).
Serve on defendant before trial, an expert witness disclosure notice, pursuant to CPLR §3101(d)(l), indicating plaintiff will introduce expert medical testimony of aggravation or activation of plaintiff's pre-existing condition There must he
an exchange that indicates that plaintiff will rely on testimony of either aggravation or activation. It is not enough to rely on an indication in the physician's narrative report that there were pre-existing conditions, the bill of particulars also must state clearly that plaintiff will make the claim of aggravation or exacerbation.
Similarly, defendant also must give notice that his medical expert will claim that plaintiff's injuries are due to a prior condition. If a party fails to serve and file an expert witness disclosure notice, specifying the subject of (he
expert testimony, the court can preclude that party from introducing expert testimony regarding pre-existing conditions. Kirschhoffer v. Van Dyke, 173 A.D.2d 7, 577 N.Y.S.2d 512 (Third Dept. 1991).
Caution: Never omit or ignore a pre-existing condition. Computerized medical record retrieval systems make discovery of the pre-existing condition a near certainty. Acknowledge the preexisting condition in the initial pleadings and in discovery responses, and develop plaintiff's case strategy accordingly.
Defense Tactics
The defendant may show that the plaintiff's current condition would have developed regardless of the accident. Mona/ian v. Weidiert, 82 A.D.2d 102, 442 N.Y.S.2d 295 (Fourth Dept. 1981). This does not require an affirmative defense but does allow the issue to be presented to the jury in the form of proximate cause. Plaintiffs have always had the burden of proving that the accident was the proximate cause of an injury and have had to reasonably exclude other potential claims. Aggravations as well as exacerbations fall within that principle. It is therefore incumbent on the plaintiff's attorney to establisll llumigh medical proof Unit williin a icnsoiuible degree of medical certainty the condition was proximntcly caused by the occurrence complained of.
Aggravation
A pre-existing injury is aggravated or exacerbated when it is enhanced or made more severe or less tolerable. Orliz v. Mendolia, 116 A.D.2d 707, 497 N.Y.S.2d 761 (Second Dept. 1986). For example, a plaintiff with mild lower back pain prior to the accident sustains an injury aggravation if the accident causes the development of severe lower back pain, possibly requiring surgery,
Reduced Damages
In a claim for aggravation, the jury must distinguish between injuries that existed prior to the accident and injuries caused by the accident. The court must instruct the jury to consider plaintiff's pre-existing condition and limit the award to the extent to which plaintiff is further disabled as a result of defendant's negligence, Lopato v. Kinney Rent-A-Car, Inc., 73 A.D.2d 565, 423 N.Y.S.2d 42 (First Dept.
1979).
Personal Injury Aggravation of Pre-existing Injury
If you find that before this (accident, occurrence) the plaintiff had a [specify the particular condition] and further find that because of the (accident, occurrence) this condition was aggravated so as to cause (increased) suffering and disability, then the plaintiff is entitled to recover for any (increased) disability or pain resulting from such aggravation. (He, she) is not, however, entitled to recover for any physical ailment or disability which existed prior to the (accident, occurrence) or for any injuries from which (he, she) may now be suffering which were not caused or contributed lo by the (accident, occurrence). The plaintiff can recover only for damage caused by aggravation of the pre-existing condition, not the condition itself. The plaintiff should be compensated only to the extent that you find (his, her) condition was made worse by the defendant's negligence.
New York Pattern Jury Instructions - Civil, Volume 1A, Third Edition, Unified Court System, 1997, published by West Group.
Activation Defined
An activation or precipitation of a latent condition makes an asymptomatic condition symptomatic, and increases or accelerates the problem. Tobin v. Sleisel, 64 N.Y.2d 254, 485 N.Y.S.2d 730 (1985). Activation worsens a previously asymptomatic condition and transforms it into an actionable injury. Perez v. Pearl-Wiok Corp., 56 A.D.2d 239, 392 N.Y.S.2d 496 (Third Dcpt. 1977).
Defendant's Liability
New York law has steadfastly embraced the "eggshell-skull" concept that defendant "lakes the plaintiff as he finds him." A negligent person "is responsible for the direct effects of his acts, even if more serious, in cases of the sick and infirm, than in the case of those of healthy robust people..." McCahill
v. New York Transportation Co., Defendant's responsibility does not depend on
defendant's knowledge or ignorance of plaintiff's pre-existing condition.
Damages Not Reduced
In an activation claim, plaintiff is entitled to compensation for all the injuries
plaintiff sustained (and defendant caused). Plaintiff's compromised health condition, weakness, or predisposition to suffer harm before the accident does not reduce defendant's
responsibility or the amount of damages awarded to plaintiff. King v. State, 58 A.D.2d 934, 396 N.Y.S.2d 919 (Third Dept. 1971).
Case Study: Hemophiliac Victim ("Eggshell Skull" Rule)
A plaintiff with hemophilia receives cuts in a collision caused by the defendant, and bleeds to death. The defendant is responsible for the wrongful death of the plaintiff, even though the death would not have resulted had the plaintiff not been a hemophiliac. The defendant's lack of knowledge of plaintiff's hemophilia is not a defense to plaintiff's wrongful death claim, and does not reduce defendant's liability. See Bernstein v. Western Union Telegraph Co., 174 Misc. 74, 18 N.Y.S.2d 856 (Municipal Ct. 1940); Restatement of Torts 2d, §461.
Precipitation or Activation of Latent Disease or Condition
If you find that the plaintiff had a bodily condition which made (him, her) more subject to injury than a person in normal health, the defendant is nevertheless legally responsible for such injuries, if any, as you find the plaintiff suffered as a result of the negligence of the defendant even though those injuries, due to the condition, may have been greater than those which would have been suffered by a normal person under the same circumstances.
New York Pattern Jury Instructions - Civil, Volume 1A, Third Edition, Unified Court System, 1997, published by West Group.
RESOURCES FOR EVALUATING INJURY VALUES
New York Jury
Verdict Reporter
The New York Jury Verdict Reporter, Moran Publishing Company, publishes the results and amounts of verdicts and reported settlements. The published results indicate an approximate average of the value of an injury, depending on the jurisdiction of the case. The results are cross-indexed by injury, case type, locality and other criteria.
When using the Jury Verdict Reporter:
Read each case carefully for distinguishing features
Verify the results by checking the appellate decisions
Be wary of inherent bias in the reports, , because each report is based on submissions from the attorneys who participated in the case
Other Sources
Computer software programs are available that aid in the evaluation of damages. To operate most of these programs, the user inserts variables and the program then gives ranges for value based on the locale.
With the advent of structured settlements, economic evaluations require more sophist!- cation. Many experts and expert services will calculate the present value of a structured settlement. These economists and structured settlement experts currently advertise in the New York State Trial Lawyer directories.
STRUCTURED JUDGMENTS
A structured judgment provides for an immediate payment of a portion of (lie damages fixed by the jury, and periodic installment payments in the future for additional parts of the judgment. The structured judgment statutes (CPLR
Chapters 50-A & 50-B) do not affect the substantive law governing damages.
However, they completely alter the method and timing of payment.
A structured judgment is required on verdicts awarding future damages over $250,000. CPLR §5041(e). Because a large verdict would be acceptable in almost any circumstance, a lawyer will rarely reject a case solely because a structured judgment-is likely.
The legal fee on a structured judgment does not depend on the gross amount of the judgment but on the cost of an annuity that will produce the periodic payments. CPLR §5041(c).
Background
In 1985, to prevent increases in medical malpractice insurance, the legislature enacted CPLR Chapter 50-A. This provision mandates structured judgments in medical and dental malpractice actions. The statute applies to all cases commenced after July 1, 1985.
In 1986, the legislature expanded the mandate of structured judgments to tort actions generally by enacting CPLR Chapter 50-B, which applies to all personal injury actions commenced on or after July 30, 1986. See 7B McKinney 's Consolidated Laws of New York (1990), CPLR Chapter 50-B.
Operation
The court must structure parts of the judgment if future damages exceed $250,000. CPLR §504l(e). It is important for the client to understand, that regardless of their wishes, any award in excess of $250,000 for future damages will not be awarded in a lump sum but instead that portion over the $250,000 will be placed in an annuity and the client will receive periodic payments over the time specified. CPLR §5041(e).
The court will enter an immediate judgment for the total amount of all damages, after reductions, for:
All past damages, regardless of amount
Future damages not exceeding $250,000
Fees, costs and liens payable in a lump sum
CPLR §5041.
If future damages exceed $250,000, the court may not enter a lump sum judgment for the excess. Instead the court enters a judgment for the amount of the present value of an annuity contract that will provide for the payment of such future damages in periodic installments. CPLR §5041.
Elements of Future Damages
The total award for future damages may consist of several elements of damage such as future medical care costs, future lost earnings, and future pain and suffering.
Included in future medical care costs are the anticipated medical expenses, treatments, nursing care, therapists, hospitalizations, drugs and medications, prosthetics, and alterations to the residence if the handicap requires special aids such as stair lifts or ramps or the widening of bathroom doors to accommodate wheelchairs.
Collateral Sources
Furthermore, at the end of the trial, there will be a special non-jury proceeding at which time the court will take evidence, and testimony is needed to determine the deductions to be made for the award based on collateral source payments. If the jury has awarded $75,000 for past medical expenses, this will be reduced by the $50,000 that No-fault has paid and the jury did not know about or were instructed to ignore in determining the full measure of damages.
Time Span of
Periodic Payments
The length of time over which the annuity will pay periodic installments may vary from element to element. Future pain and suffering are paid over a period of ten years, or the period of time decided by the jury, whichever is less. CPLR §5041. The jury determines the period of time for the other elements. CI'LR §5041 further provides that the section applies only to awards of future damages in excess of $250,000.
Settlements
Parties can settle cases in any manner they deem appropriate, unless involving infants or death(s). CPLR §1200 et scq. Parties can agree to settlements that are entirely lump sum, or that provide a structure of future payments.
Case Law
This area is becoming a burgeoning area of law, and more and more cases are being decided to help the courts and the bar ascertain the value of a judgment. The complications and delay associated with settling a judgment were not the anticipated result of the 50 a & b sections and it is a matter that is being addressed by the legislature and the Office of Court Administration on an ongoing basis.
Ursini v. Sussman, 1 43 Misc.2d 727, 541 N.Y.S.2d 916 (Sup. Ct. NY Co. 1989) has become the seminal case in the area. It held that in determining the present value of the annuity contract used to pay the periodic future damages (i.e., the amount upon which the legal fee would be based) the discount rate would not be adjusted to reflect the possible premature demise of the plaintiff. Rohring. v. City of Niagara frills, 153
Misc.2d 1001 ,
N.Y.S.2d 513 (Sup. Ct. Niagara Cty. 1992) followed Ursini and held that the court
was not required to determine present value of future. damages by first
decreasing future damages. by any lump-sum payment, then modifying future damages to present value after selecting the appropriate discount rate and
then determining present value of attorney fees for the future periodically paid damages.
Non-Recourse Funding
Sooner or later, every practitioner will face a client who begs to borrow
money against their case to "tide them over." Clients with financial problems will often ask to borrow money while
their case is pending. Clearly, the act of lending or advancing money to a client by
the attorney involved in the case is inappropriate, unethical and illegal. No
attorney should ever advance a client money, The
cannons of ethics prohibit dealings of that nature with current clients, and, even if not prohibited, it is just plain bad business. New York called the lending of money to clients "maintenance" and each department has expressly forbid the practice. The ban on maintenance is found in DR5 -103(B). The first department rule, which is an exemplar, expressly forbids "any attorney, directly or indirectly, as a consideration for the placing of a retainer, to pay any expenses attending the prosecution or defense of any claim or action" Rules of the Appellate Division, First Department, 22 NYCRR sec 603.18. The evils addressed by the traditional prohibition of advancing money to clients is increasing non-meritorious litigation and the improper solicitation of retainers. The ability to finance your client during the life of the case should not be a factor in the clients determining to engage a particular attorney.
However, clients can develop legitimate financial problems that can result in true tragedies. We hear of injury victims, unable to work, losing their home to foreclosure or their business to debtors while waiting the years that a personal injury case can take. While it is improper for the lawyer to advance funds, it is perfectly ethical for the attorney to recommend a lending institution that will meet their needs, provided the recommendation is at arms length and there are no hidden promises between the lawyer and the lender.
A commercial solution that has recently swept the market is Non-Recourse Funding. Private companies will advance money to your client, secured by a lien against the proceeds of the case. However, that some of these outfits charge rates that rival the loan-sharks on the pier, as high as 18% a month, and it is perfectly legal. More reputable companies charge in the range of 3 - 4% a month, comparable to many credit cards.
Under the terms of Non-Recourse Funding, the company will advance the client a sum of
money, usually percentage of the value of the case, and agree to defer repayment until the case is resolved, getting nothing if the case is lost. They are only paid back from the proceeds of the case, in effect creating a contingency lien.
How to Apply for
Non-Recourse Funding
Almost all the companies make the process easy, touting simple forms, 800 phone numbers and responses within days. They also, however, insist that the attorney fill out questionnaires and provide information about the case. This is q non-billable project thai must be handled quickly or the company will reject the application citing lack of cooperation by the attorneywhich is a guaranteed pro-cursor to being substituted off the case. Some companies will insist that the attorney give a written evaluation of coverage, liability, and damages, while others will even ask the attorney to projected the value of the case. Such reports are obviously documents that one would not want to be discoverable. In fact, giving a client n written evaluation of their case is never a good idea under any circumstances. Although the company claims that the evaluation report is privileged and confidential, there is still a
chance that it could come back to haunt the attorney. The company, often staffed by attorneys or former claims adjusters, will then make their own evaluation, and offer a sum of money
to the client if they think the risk is acceptable.
Drawbacks of Using Non-Recourse Funding companies
a) Interest Rates are Not Favorable - The high risks of this sort of lending
should be obvious, and the rates reflect that risk. These are clearly loans of last resort for the client. Family loans, second mortgages or any other equity are much better vehicles. While traditional loans must be repaid regardless of the outcome of the case, the forgiveness of the loan if the case is lost must be weighed against the high interest rates charged.
b) LOAN AMOUNTS LIMITED - These companies will not loan large sums of money. The more reputable firms seem to limit their risk to no more than 10% of the value of the case, and they review their cases carefully. Many of them are actually better at case selection review than the plaintiff's attorney who accepted the case. Most prohibit the client from seeking any additional advances without their permission, although as the case progresses, they do consider advancing additional money.
c) LOANS CAN AFFECT SETTLEMENT NEGOTIATIONS - Of more import to the attorney is the obvious danger that an outstanding contingent lien will make the case more difficult to settle should the value of the case drop after the loan is processed. For example, assume that a case appears to be worth in the, range of $75,000 to $100,000 when it first comes in. Further assume that the client gets a $7,500 non-recourse advance from one of the vendors who offer such funds. Now, as discovery is completed, serious liability problems develop and an offer of $25,000 seems like mi appropriate compromise. From the $25,000, after attorney fees and disbursements, the client is only going to receive hypothetically, about $15,000. From that he owes the $7,500 he borrowed plus interest for the last year while the case was processed. In the end he will be clearing about $3-4,000. For that amount of money, it is worth it for the client to reject the settlement and instinct counsel to take a verdict. In gambling terms, the client is playing with house
money and has nothing to lose by taking a chance on trial.
Advantages to Using Non-Recourse Funding Companies
a) ONE IN THE HAND IS WORTH TWO IN THE BUSH - Not until you have seen a client lose his home in foreclosure because of a long delay in settling a claim can you appreciate the benefit of having this source of money available. It doesn't happen often, but once you see it, it leaves a long-lasting impression.
b) THERE ARE RESPONSIBLE COMPANIES - In a field that seems to be the poster child of sleazy loan sharking, there are actually companies that provide a needed service in a responsible manner. It will require careful scrutiny on your part, but they are out there. Sometimes they can even help evaluate your case.
Is It Ethical To Refer a Client To One Of The Funding Services?
The New York State Bar Association Committee on Profession Ethics issued Opinion 666 (73-93) on 9/3/94. The question presented was, "May a lawyer refer a client to a
financial institution that will lend the client's
money for living expenses, where the repayment of the loan is contingent on the resolution of a personal injury claim?" The answer
was "Yes, a lawyer may refer clients to institutions that will lend the client
living expenses contingent on the resolution of the personal injury case."
Practice Tip
Read the contract carefully!
The contract of one group out of Boston gives them the right to inspect your file, in your office, at any time during business hours, without notice. They also put the burden on the plaintiff's lawyer to contact them if relieved by the client. That same company has some of the highest rates in the field. At the other end of the spectrum is a company called Law Cash, with offices on Court Street in Brooklyn. Law Cash has favorable rates and a reasonable contract, and thus far is the only such company that has been approved by ATLA. Just to be safe, have your client sign a letter indicating that you have explained the loan and are not recommending it. The better companies include a sample letter with their materials. There are other companies competing for this market and the practitioner should read all of their material carefully.
Financing Case Expenses
Just as there are firms that will advance clients money securing repayment with a lien on the proceeds of the suit, there are also companies that will help lawyers finance the expenses on their pending law suits. Again, many traditional banks will lend lawyers money accepting that accrued receivables, outstanding disbursements and future recoveries on cases, constitute a form of collateral to
borrow funds against. But with the traditional lenders, there are also funding finance companies that specialize in lending attorneys money to cover the expense of working up a big case. Any decision about financing you case is one best left up to yourself and your accountant.
IV. CASE ACCEPTANCE DECISIONS
Damages Rule of Thumb
Where a case has a potentially large recovery in the personal injury action, regardless of the amount of No-fault benefits take the case. For example, where a passenger in a car accident loses a leg as a result of the crash, accept, the case despite the fact that the medical bills and economic losses are very low. It is an irony of life that a below the knee amputation is a very inexpensive procedure and often does not generate a lot of No-fault benefits. See also liability and contributory negligence issues.
On the other hand, a soft tissue back injury may generate enormous No-fault
benefit by requiring long term therapy, but this type of ease often will not even qualify for the sei ions injury threshold and is not a good case to accept.
The most important consideration in accepting a motor vehicle action, is whether or not it will qualify under the No-fault threshold. One must always ask, can we prove that
the plaintiff suffered a serious injury?
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