In New York State, the law enables people to recover for damages wrongfully caused by others. The circumstances in which a person seeks to recover in court for physical, mental, reputational, or property damage whether caused intentionally, accidentally, or negligently by another person, a company, or even a municipality or other government agency is one of the broadest areas of the law. You may hear lawyers or others call this area “tort law.” This section deals with non-property related tort law, injuries to the body or mind of a person, otherwise known as personal injury law.
A tort occurs when one person acts wrongfully and, in doing so, causes injury to another person. The injury can occur because of a fall, a car accident, a malfunctioning product, a botched medical procedure, false accusations, poisoning by toxic chemicals, police misconduct, unlawful serving of alcohol to a minor, criminal activity, etc. The list of potential causes of torts is as broad as the activities that occur in society. However, the defining aspect of a tort is the injury—without injury or harm, there is no tort, even if someone acted wrongfully:
- Example: You slip and fall on a wet floor in a grocery store. If you get up and walk away without any harm, there is no tort and no personal injury case, no matter how careless the store was in not cleaning its floor.
- Example: A car goes through a red light, causing you to dive to the ground. Again, if you get up and walk away with no injury, there is no tort, despite the actions of the driver.
People injured by the wrongful conduct of others can recover monetary damages by suing in civil court. If your losses could total more than Twenty-Five Thousand Dollars ($25,000.00), then your lawsuit should be filed in Supreme Court.
The time for filing a claim to recover damages for a personal injury can be extremely limited. Regardless of your situation or your age, an experienced personal injury lawyer can help you investigate the basis of your claim and ensure that your claim is filed in a timely manner, enabling you to eventually recover any and all damages that you have suffered as a result of the wrongful acts of another.
Have I been effected?
Personal injury law covers any situation in which the following occurs:
- Physical, Mental or Reputational Injury: A person is injured physically, mentally, and/or in his or her reputation;
- Wrongfully Caused: The injury is caused wrongfully, in the eyes of the law, by another person or by an entity (such as a corporation or municipality).When you are injured, the law asks whether the person who injured you was responsible to take care that you did not get injured. There are different levels of wrongful conduct that lead to liability depending on the circumstances:
- Everyday Situations—Negligence: The law usually asks, “Was the person who injured you “negligent” in causing your injury?” Negligence is another way of saying “careless,” or lacking in the use of ordinary care or consideration.
- Special Situations—Recklessness: In certain cases, those involving injuries caused by police and firefighters driving to or arriving at emergency situations, the law may ask if the officer acted “recklessly” in causing injury—that is, did they act in utter disregard to your safety?
- Intentional Injurious Acts: There are also intentional acts (like if someone punches you on purpose and without justification, breaking your nose) where the intent combined with injury will allow recovery.
- Defective Products—Strict Liability: Finally, there are injuries involving dangerous products or products manufactured improperly or that are defective—in such cases, the law doesn’t look for wrongful behavior, but rather presumes responsibility by the fact a person was injured using the product (also known as “strict liability”).
- Compensable Damage:A person will not be able to recover (much less find a lawyer to represent him) for a cut on the finger or other negligible injury:
- Example: You are crossing the street with a “walk” sign. A car goes through the red light, causing you to dive to the ground to avoid being hit. If you get up with a minor scrape on your hand, and walk away without further symptoms, there is an injury caused by negligent driving, but you will likely not be able to recover, despite the actions of the driver.
When each of these factors is present, an injured person may be able to recover a dollar amount for all damage suffered (medical costs, lost wages, pain and suffering) by suing the person or entity that wrongfully caused the damage.
How do I know if I have been injured wrongfully by someone else?
When you get injured due to the actions of another, you should consult a lawyer. Generally, however, when injury occurs, the law asks a few key questions:
- Duty—Is one person required to take care not to injure another? The law does not impose an absolute responsibility on everyone to take care of everyone else in all situations. So, some injuries are simply accidents, not addressable in court. The way the law begins to distinguish between injuries that are mere accidents and those that are torts, is by asking “Did the person or entity that caused your injury have a “duty” to take some level of care to ensure you did not get injured? Sometimes, an injury is caused by someone who didn’t have a duty of care to the person who got injured. In such cases, there is no recovery:
- Example of no duty and no recovery for injury: Person B’s property has a lot of broken glass on it, and is fenced. If Person A trespasses (enters without permission) Person B’s property, Person B does not owe a duty of care to Person A. If A is injured by broken glass while on B’s property, A cannot recover damages from B.
- There are numerous levels of care the law imposes on people. Usually, the duty is one of ordinary care—that is, the law requires that one person not be careless, or negligent, in regard to others. But there are more lenient and more stringent levels of care, as well:
- Negligence: Negligence is the “everyday duty of care” that exists in numerous situations. It is the duty to not act carelessly with regard to whether your actions put others at risk of injury—when the law seeks to determine if someone was negligent, it asks, “Would a reasonable person foresee that his actions could cause injury in a certain situations?” This type of duty requires people to repair dangerous conditions on their property or to warn of dangerous conditions that cannot be fixed or haven’t been fixed. It requires us to obey traffic laws, and put out campfires, along with a host of other ordinarily reasonable actions. If someone relates to you certain facts, and your response is “how careless,” than there is probably negligence.
- Recklessness: The duty to not act with utter disregard to whether your actions will put others at risk—this type of duty is harder to prove than negligence and generally applies to police officers and firefighters en route to emergencies. Speeding through city streets and running red lights is generally careless, but we allow police and firefighters to do so, so long as they warn others they are coming.
- Intent: People have a duty to not intentionally cause injury to others when there is no justification for doing so. You cannot walk up to someone and punch him in the nose. You cannot knowingly spread false rumors about someone to hurt her. You may, however, punch someone in the nose if he punched you or if he is threatening you with a knife.
- Strict Liability: This duty imposes nearly automatic liability if it is breached and results in injury.
- Example: If a person is prohibited from doing something, and does it, causing injury to another, then the injured person may recover damages. The New York Dram Shop law prohibits the sale of liquor to people under age 21. If a bartender sells alcohol to a minor, he has breached his duty and will be liable if the person to whom he sold liquor gets intoxicated and causes injury to another.
- Example: If a company manufactures a product that is defective and it causes injury, or when it is used how it is supposed to be used, it causes injury, the injured party may recover damages–you buy a lawnmower with a blade guard that allows you to clean the area in front of the blades without fear of harm, so long as the mower motor is off. You turn off the motor and put your hand in the safe area, but the motor restarts, damaging your hand. You can recover without proving the manufacturer acted with wrongful intent, negligence or even recklessness.
- Did you breach the duty of care? If, in a given situation, a person does owe a duty of care, then the law asks whether the person breached (broke) his duty of care. That is, was the person negligent, reckless or subject to strict liability given his action. If you breach a duty of care and someone has been injured, the law moves to the third question…
- Causation–Is there a sufficient link between a person’s actions and another’s injury? In law, this is called “proximate cause.” Proximate cause is not necessarily the only cause, but it must be a near cause, a most likely cause, but not a remote cause. Did the actions of the person in failing his duty “proximately cause” the injury? Even if a person was negligent, reckless, or subject to strict liability, if his actions didn’t cause your injury, you cannot recover from him.
- Example of remote cause not sufficient for proximate cause: You are driving and almost get hit by a car that runs a red light. You become terribly upset and nervous, but instead of stopping for a break, you continue because you are late for an appointment. Two blocks later, still upset, you drive into a light pole and break two ribs. While the person who sideswiped you contributed to your upset state and thus to your injury, it was not the proximate cause of your injury.
If the answers to all these—duty, breach of duty, proximate cause—is “yes,” the law says that the person behaved wrongfully in causing your injuries.
What if I think the accident was my fault? Should I just be nice and admit my fault and try to negotiate a settlement on the spot? No. If you are in an auto accident or someone is injured on your property or a patient claims you were negligent, the most important thing is not to admit the accident was your fault. Admissions of guilt will be used against you in court. The less you say, the better. (Even non-verbal actions can be seen as an admission—for example, leaving the scene of an auto accident can be used as an admission of guilt.) You may think an accident was your fault when in fact it was not. Also admissions of guilt, depending on what you say, may undermine the coverage in your insurance policy if there are certain exclusions.
Bottom Line: If you admit guilt, your lawyer will find it difficult to argue you were not negligent. That would leave only an effort to try and reduce damages.
What if I am in an accident that isn’t covered by insurance? You will need to contact an experienced defense attorney.
What if the person who injured me has insurance?
Insurance exists to protect people and companies from financial risks of harm, including the risk of having injured a person. In many instances, therefore, claims to recover for personal injury will involve insurance policies. For example, New York requires motorists to carry insurance. Mortgage lenders require property owners who borrow money from them to carry insurance. Businesses carry insurance to protect them in the event a customer is injured on their property. Doctors carry malpractice insurance. In each of these instances, if you are injured by an insured, and the injury comes under the insurance policy, the defense will be made by the insurance company.
When insurance is involved, your recovery may be limited by an insurance policy, unless the one who caused your injury has substantial additional assets. For instance, if the insured is not wealthy and has limited assets beyond the insurance policy, it would be difficult to recover more than the insurance policy maximum, even if you would be entitled to more.
Auto accidents in New York present unique issues when it comes to the presence of insurance. New York has a mandatory no-fault insurance law under which every New York-registered motorist is required to carry insurance. In the event of an accident, that insurance policy pays the policyholder’s, his passengers’ and pedestrians necessary medical expenses and lost wages up to a maximum of $50,000 without regard to who caused the accident. However, any additional recovery, such as for pain and suffering, must be sought in court. Under the no-fault law, if you were in an auto accident, you are permitted to sue a driver to seek damages for pain and suffering if you suffered serious and permanent injuries due to that driver’s negligence.
Settling with an insured: Although the decision is yours to make, the Law Offices of Peters & Associates, PLLC may advise you to settle with the person who caused your injury when there is a reasonable and good faith offer of settlement from an insurance company, even if going to trial might result in a larger judgment in your favor. In such a situation, accepting the sure recovery may be preferable because it will save years of litigation, and in cases where the defendant is of limited means, your ability to collect on a judgment for an amount beyond the insurance coverage may be likewise limited.
Furthermore, insurance companies have the resources to make recovery a long, drawn-out battle. That doesn’t mean that you cannot win against an insurance company; rather it can be difficult and time-consuming. Your personal injury lawyer will be in the best position to advise you as to whether a settlement offer from an insurance company is a reasonable one, or whether it should be rejected.
What if I was injured by a motorist who doesn’t have insurance? New York law requires that all motorists carry uninsured motorist coverage. That means that if you have auto insurance, and you are injured by a motorist who does not have insurance, your uninsured motorist coverage will cover your injuries. If you do not have auto insurance (because you do not own a car), you will have to pursue a claim against the driver who injured you. If you do not know who injured you (i.e., you were the victim of a hit-and-run), or if the person who hit you is of limited means, you may seek recovery from the New York Motor Vehicle Accident Indemnification Company, which has established an insurance fund for the victims of uninsured motorists and drivers of stolen cars. However, your coverage under this plan is limited to $25,000 per accident.
I was injured by the wrongful conduct of someone who has insurance:
- Seek medical attention immediately and document your claims as thoroughly as possible
- Do not talk to any representatives of the company that insures the person who caused your injury
- Your time to sue is limited; contact the Law Offices of Peters & Associates, PLLC immediately.
Examples of injuries covered by personal injury law
Personal injury law can apply to any injury that one person or entity causes another person, so long as that injury was caused by intentional, negligent, or reckless behavior, or by an action covered by strict liability. Some common causes of personal injury that can give you a right to recover damages include:
- Auto accidents
- Slip/Trip& Fall (liquids, snow and ice)
- Slip/Trip & Fall (unsafe conditions on property) other than liquids, snow and ice
- Premises Liability
- Construction Site Accidents—Negligence, New York Labor Law 240 and 241
- Dram Shop (Alcohol) Liability
- Medical Malpractice
- Product Liability
- Police Misconduct
- Wrongful Death
- Infliction of Emotional Distress
- False Accusations—Defamation of Character by Libel or Slander
- Uneven Sidewalks
Remember, if you are injured:
- Seek medical attention immediately
- Document your claims as thoroughly as possible
Your time to sue is limited; contact contact the Law Offices of Peters & Associates, PLLC immediately.