A serious injury can turn your life upside down. Even if the injury is not permanent, the emotional and psychological trauma from an accident can last a lifetime. If another person or legal entity (e.g., business, hospital, or government body) is responsible for the harm caused to you, then you should be compensated.
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The expert attorneys at Rosenblum Law understand the difficulty our clients face after a serious incident. We offer a free initial consultation where we guide each client through the personal injury lawsuit process. Rosenblum Law brings decades’ worth of experience helping clients recover money for past and future medical bills, lost wages, and compensation for pain and suffering.
What Is Negligence?
New York State defines negligence as a failure to act with the same level of care or attention that a reasonable person would provide under the circumstances. Negligence can also be taking unreasonable action when a prudent person would not. When this negligence results in another person suffering an injury, the negligent party can be sued for damages.
One of the more common forms of negligence is when a driver commits a traffic violation which results in an accident. Other forms of negligence include an employer not providing legally required safety conditions in the workplace (e.g. hard hats, guard rails, etc.). Doctors and nurses can also be found negligent in their duty to provide reasonable care for patients. Any of these scenarios and more can form the basis of a valid personal injury lawsuit.
Proving Negligence in a Personal Injury Case
In personal injury law, negligence consists of four elements that must be proven in court before a person or party can be held liable:
What Is a Serious Injury in New York?
Depending on the type of insurance that a person has, an insurance carrier may or may not cover costs associated with serious injuries. For example, New York motorcycle insurance does cover serious injuries.
Section 5102(d) of New York insurance law defines a serious injury as:
- A fracture
- Loss of a fetus
- Permanent loss of use of a body organ, member, function or system
- Permanent consequential limitation of use of a body organ or member
- Significant disfigurement
- Significant limitation of use of a body function or system
A serious injury can also be one that is proven to have prevented someone from performing “substantially all of the material acts which constitute such person’s usual and customary daily activities” for three of the last six months following the accident.
It is important to know if an insurance policy—be it one’s own insurance policy or the one held by the liable party—covers serious injuries. An insurance carrier may try to claim one way or the other in order to deny payment, based on the specifics of the policy or policies in play.
Potential Damages in a Personal Injury Case
There is no set formula for determining potential damages in a personal injury case. “Damages” is the term used in personal injury law for the money owed by the liable party to the injured party. There are several types of damages, and the specific circumstances of each case will ultimately factor into the size of the award.
Types of damages include:
This is money meant to cover tangible expenses, both past and future, resulting from the accident and injury. Medical bills are among the most common economic damages, along with lost wages. But other costs might include the loss of property (e.g. a car), funeral costs, and reduced earning power due to physical or mental disability. In addition, a person who loses mobility (e.g., is confined to a wheelchair), can seek money to help care for his/her children or to update one’s home with mobility-assistance devices, such as stairlifts or a modified shower/tub.
Some accidents, especially serious auto accidents, can result in emotional trauma, which carries its own associated economic costs, such as therapy co-pays and medication.
Also called pain and suffering, non-economic damages are much more subjective. However, an experienced attorney can estimate a dollar value for non-economic damages.
There are two main types of pain and suffering: physical pain and emotional pain. For example, a back injury can cause severe physical pain, for which one can be compensated. At the same time, this kind of injury can also cause emotional pain by inhibiting one’s ability to play with his/her kids or be intimate with a spouse.
In rare instances, a liable party can be ordered to pay punitive damages. Unlike other types of damages, which seek to make the victim whole or compensate for suffering, punitive damages function as a punishment for the liable party. As such, they are reserved only for the most egregious instances of negligence.
New York Is a Comparative Fault State
New York State uses a comparative fault model for personal injury cases. This means that the state considers how much the victim contributed to the accident and reduces any monetary award by a percentage that he/she is deemed to be at fault.
For example, a pedestrian who is struck by a car may have been observed to be texting while crossing the street. While pedestrians always have the right of way in New York, they also have a responsibility to be mindful of when it is safe to cross the street.
In this scenario, the victim may be assigned 10% of the responsibility for the accident. Should a judge and jury determine the damages to be $200,000, the amount given to the victim would be reduced by 10% for a final settlement award of $180,000.
It’s important to note that New York is a pure comparative fault state, which means a person can still sue even if he/she is 99% at fault. An experienced personal injury attorney can estimate the amount of liability for each of the parties involved.
The Personal Injury Claims Process
Many personal injury cases involve the following steps:
- Consultation with the attorney
- Negotiation with the liable parties and/or insurance companies
- Filing court documents
- Discovery (both parties exchange evidence)
- Pre-trial motions and hearings
- Settlement negotiations
- Post-trial motions and appeal
- Collecting settlement/judgement
Cases that go to trial are often among those that take the longest to resolve. An attorney may spend a considerable amount of time recruiting expert witnesses to prove all types of damages (both economic and non-economic) and uncovering evidence that will sway a judge and/or jury. If the liable party chooses to appeal a ruling, it can delay payment even further.
How Long Do I Have to File a Personal Injury Claim?
A person who is injured should take action right away. New York puts a time limit—called the statute of limitations—on filing personal injury claims. In most cases, a person has 3 years from the date of the accident to file a claim.
However, some cases have a longer or shorter statute of limitations. Medical malpractice cases must be brought within 2 years and 6 months of the instance of malpractice (e.g., a botched surgery) or from the last date of treatment by the medical professional or institution being sued. For an infant harmed by malpractice, the parents/guardian have 10 years to bring the lawsuit.
Wrongful death claims must be filed within 2 years of the death in question. A person has only 1 year to file a claim in cases involving assault or battery.
Keep in mind that if a person believes that a government entity is liable for an injury (e.g., NYS Department of Transportation), he/she must file a notice of claim within 90 days of an accident.
Claims Against Government or Municipalities
Personal injury cases in which New York State, a state-run facility, or a municipality within the state is named as a defendant are different from other cases. One key difference is that one must send a notice of a claim within 90 days of the supposed accident/injury—far less time than in other cases.
Another key difference is that cases against the state are heard in the New York Court of Claims. In these cases, there is no jury. Instead, there is only a state-appointed judge assigned to the case. While this does not guarantee that the judge is biased in favor of the state, it does set the bar for evidence higher than in many other cases.
In such scenarios, it is imperative that the injured person hire an attorney with experience fighting and winning cases in the New York Court of Claims.
Types of Personal Injury Claims
- Bicycle crashes
- Boating accidents
- Bus accidents
- Brain injuries
- Car accidents
- Class action lawsuits
- Construction accidents
- Dog bites
- Medical malpractice
- Motorcycle accidents
- Nursing home abuse
- Pedestrian accidents
- Premises liability
- Products liability
- Slip and fall accidents
- Spinal cord injuries
- Subway and train accidents
- Toxic substance injuries
- Truck accidents
- Uber & Lyft accidents
- Wrongful death
What Can a Skilled Personal Injury Attorney Do for Me?
An attorney is your personal advocate. His/her first job is to hear out the case and determine what type of compensation you may be entitled to. The right attorney is thorough, asking pointed questions to uncover details and evidence that the average person won’t think of. He/she will also be compassionate and understanding of the difficulty you are facing and eager to see justice done.
An attorney will fight for you. In addition, if you are injured, you may be up against an insurance company with a vested interest in preventing you from getting a settlement. The right personal injury attorney will have experience dealing with companies, insurance carriers, and their lawyers. He/she should match their aggressiveness and skill, doing everything possible to reach an adequate settlement.
The right attorney can make a difference in getting a substantial settlement, an insufficient settlement, or no settlement at all. As such, it’s a worthwhile investment of time to research your options when it comes to hiring a New York personal injury lawyer.
What to Do After an Accident
Many people are so shaken by an accident that they are not quite sure what to do. While it always best to act sooner rather than later, a person should try to do as many of the following as possible regardless of when the accident occurred.
Frequently Asked Questions
Minor fender benders or other accidents may be worked out without a lawyer, but if a serious injury occurs, then it is critical that one hire an attorney. Insurance companies are aggressive in defending their right to deny payments. An attorney will have the knowledge and negotiation skills needed to secure money an injured person is owed.
A skilled personal injury attorney will work on a commission basis, meaning he/she will only be paid if the case results in a settlement. For this reason, many attorneys will only take cases where they see a good chance of success. The legal team you hire should offer a free, no-obligation consultation, and not take payment until the conclusion of the case.
This will depend on the circumstances of the case. An adequate settlement should cover all injury-related costs and ensure that a person is capable of remaining financially solvent under reasonable conditions.
Every personal injury case is different. Some are settled rather quickly (a matter of months) and others can drag out in court for years. Approximately 2 years is a common length, but it would be wise to consult with an attorney before building any expectations.
Who Should I Contact?
Rosenblum Law has experienced and skilled attorneys who have won cases with positive results. To speak directly to one of our experienced personal injury attorneys for free, call us today at 888-235-9021.