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In general, when a person is injured as a result of another person's negligence, the injured party may pursue a claim against the party or parties that caused the injuries. You are entitled to compensation for your injuries if it is found that a defendant was negligent and that such negligence was a cause of your injury. Any personal injury case depends on liability, damages, and whether or not you can collect from the negligent party or parties. New York has adopted the doctrine of pure comparative negligence whereby a claimant's contributory negligence never bars recovery. Therefore if the plaintiff contributed to the negligence, it may reduce the claimant's recovery in proportion to his degree of fault.
Personal injury law attempts to cover all areas and types of injuries suffered by individuals. Some of the most common areas are automobile accidents, premises liability, medical malpractice, and product liability, among others. Whether or not you are entitled to compensation may depend on the type of accident that caused the injury.
In New York, the law provides for mandatory nofault automobile liability insurance coverage, also referred to as Personal Injury Protection (PIP), for all owners of motor vehicles in New York. This means that your own insurance carrier will provide coverage of all reasonable expenses incurred regardless of who was at fault for the accident. You will be reimbursed for medical expenses for your care, recovery and rehabilitation; 80% of wage losses up to a monthly maximum of $2000 for up to three years; replacement services (such as domestic help) up to $25 per day for up to a years; and a $2000 death benefit. Nofault benefits do not apply if you are injured while riding a motorcycle, the owner of an uninsured vehicle, injured while committing a felony, or intentionally cause your own injuries. Nofault benefits do not include compensation for damages such as pain, suffering, inconvenience, disfigurement, loss of earning capacity, etc.
Liability insurance coverage is also mandatory in New York. The mandatory minimum liability coverage is $25,000 per person and $50,000 per accident bodily injury liability, and $10,000 property damage liability. In order to bring a claim or file a lawsuit against a negligent driver for damages not covered by nofault and for pain and suffering, your expenses must be in excess of $50,000 or you must have sustained "serious injury". "Serious injury is defined as personal injury that results in any one of the following: (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) a medically determined injury or impairment of a nonpermanent 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.
Generally, people who operate motor vehicles must exercise reasonable care under the circumstances. Failure to use reasonable care is the basis for most lawsuits for damages caused by an automobile accident. In these cases, proof of fault is often contested and requires thorough investigation. A driver may also be liable for an accident caused by intentional or reckless conduct. A reckless driver is one who drives unsafely, with willful disregard for the probability that the driving may cause an accident. Liability claims are usually the subject of negotiation between your lawyer and the liability insurer for the negligent party. Lawsuits are generally filed when negotiations fail. If you file a lawsuit against a negligent driver, your attorney will need to prove that the other party was negligent and that the other party's negligence caused injuries that resulted in compensable damages. Be careful when dealing with the other party's insurance company because they may try to rush you into a settlement before you can adequately evaluate the extent of your damages.
If you were injured at another persons home or a commercial establishment, the person or entity responsible for the premises may be found liable. This can cover a variety of situations including slip and falls, dog bites, or assaults, among others. The person liable for your damages is the party in control of the property. That party is responsible for the care, maintenance and inspection of the property. For example, an owner may not be the responsible party if he or she has leased the property to another party who actually has control over the premises.
Duties of Owners
In general, it is the duty of an owner to exercise reasonable care in the maintenance of the premises and to warn a visitor of any dangerous conditions that are known, or should be known to him, if the conditions are not likely to be perceived by the visitor. Factors used to determine whether the owner exercised reasonable care in maintaining the property includes (a) the foreseeability of harm to others; (b) the magnitude of the risks of injury to others if the property is kept in its current condition; (c) the benefit to an individual or to society of maintaining the property in its current condition; and (d) the cost and inconvenience of providing adequate protection.
The owner or operator of the property must have notice of the defect or circumstances that caused your injury prior to the injury having occurred. The notice can either be actual notice or implied notice, meaning the owner knew or should have known of the dangerous condition given all of the surrounding facts and circumstances. When the owner actually created the dangerous condition, then notice is presumed. If a hazard cannot be eliminated, the owner has a duty to warn of the hazards he is aware of or should be aware of.
The duty of a possessor of land to the injured person may vary depending on the status of the person at the time of the injury. Business owners typically have the highest responsibility to those who are invited onto their premises. Homeowners also have a duty to their guests. The standard of care owed to an adult trespasser is less than that owed to a person who has permission to be on the property. An owner may be liable, however, if he maintains a condition that causes injury to a trespassing child. New York, however, has done away with these classifications in favor of one standard of "reasonableness under the circumstances" of a particular case.
Product Liability deals with recoveries for personal injury or property damage resulting from the use of a product. Product liability cases may involve dangerous toys, automobile design, seat belt failures, improperly designed household products, industrial machinery, products causing explosions or burns, aviation products, medical devices, prescription or over the counter drugs, among others. A lawsuit can be brought against anyone participating in the chain of manufacture for that product. A party in the chain of manufacture may include anyone from the manufacturer, to the designer, to the retail store. When a company designs and manufactures a product, they have a responsibility to ensure that anyone exercising reasonable care within the expected parameters of usage expected for the product will not be injured. An action can be based on negligence, breach of implied or express warranty, or strict liability.
Under a negligence theory, the claimant must prove the elements of duty, breach of duty, damages, and proximate cause. As for the breach of warranty theory, a warranty is like a promise that can be offered either expressly or be implied. If that promise is breached or not adequately stated, damages may be owed to an injured party. An implied warranty exists whether or not you have a written "warranty". An implied warranty of merchantability means that the manufacturer is under the obligation to provide a product that is fit for ordinary and reasonable purpose. Strict liability on the other hand is an absolute responsibility of liability placed on the defendant regardless of proof of fault or negligence.
Injuries cost money, including time away from work, medical bills and other complications. You should have an attorney help you with your claim. Not sure if you have a good injury case? Speak to a local personal injury attorney about the merits of your case. This one step can help you protect your rights and take the proper next steps.