Guide to Personal Injury Lawsuits

TABLE OF CONTENTS

1. Basics of Personal Injury Law
2. What Happens During a Personal Injury Lawsuit?
3. Damages Recoverable in a Personal Injury Lawsuit
4. Case Example: Slip and Fall
5. Case Example: Rear-Ended at a Stop Sign
6. Case Example: Ladder Fall
7. New York – A Comparative Negligence State
8. Speak with an Attorney

Do I Have A Case? The Basics of Personal Injury Law

A personal injury lawsuit can be filed when one person (the Plaintiff) is harmed in an accident which another party (the Defendant) caused because of something they did or did not do. While these lawsuits may go to court, it is more common for a settlement to be reached before the matter is brought before a court, as this can save time, money and stress for all parties involved. However, a skilled personal injury attorney, with trial experience, will prepare the case as if it’s going to trial. They will be ready to proceed to trial if necessary but also better position case to settle to help a client recover the maximum amount that they are legally entitled to.

To successfully file a personal injury lawsuit, a Plaintiff will have to demonstrate the following:

• The Defendant’s duty of care to the Plaintiff
• The Defendant’s failure to uphold this duty
• Causation, or a connection between the Defendant’s failure to uphold this duty and the harm the Plaintiff suffered
• The Plaintiff’s losses or damages resulting from the Defendant’s actions or lack thereof

The Defendant’s duty of care to the Plaintiff depends on the context of their relationship. For example, a business owner has a duty to provide a safe environment for potential clients that is free from slip and fall hazards, potential ceiling collapses, and a host of other foreseeable premises liability hazards.

If, however, the business has closed, and somebody trespasses onto the property and then slips and falls on a freshly-mopped floor, a judge may decide that the Defendant had no duty of care to the trespasser because his business was closed, the trespasser had no right to be there, and thus the business owner did not have the duty to care for the trespasser by warning them of the slippery floor. To successfully sue for personal injury, the first question to ask is—did the Defendant owe a legal duty of care to the Plaintiff given the nature of their relationship?

To determine if the Defendant failed to uphold their duty to the Plaintiff, it will be asked if the Defendant displayed reasonable care towards the Plaintiff given the nature of their relationship.

This is a complex question which could be contested in court. A key question in the above example might be whether the business owner made it plainly obvious that his store was closed, and whether the trespasser was aware he was no longer allowed to be on the property. If there was a visible sign indicating the business was closed or the floor was wet, a court may determine that the Defendant did exercise reasonable care and thus is not responsible for the accident.

A Defendant may be said to have caused the Plaintiff harm through a breach of duty if the risks resulting from the Defendants actions or lack thereof were foreseeable. Generally, if the Plaintiff was injured as a consequence of the Defendant’s actions which could not have been reasonably foreseen, it will be difficult to prove causation between the harm the Plaintiff suffered and the Defendant’s actions. The question of whether a Defendant could have foreseen a risk which caused a Plaintiff to be injured will likely be a point of contention between the legal teams litigating the case.

The final component of a personal injury lawsuit that the Plaintiff must demonstrate is the losses or damages which occurred as a result of the accident. The most common form of damages in a personal injury lawsuit is the Plaintiff’s medical bills. This is known as a compensatory damage, or one which resulted in direct economic loss for the Plaintiff. There are also non-economic damages which a Plaintiff can receive. All of these will be covered in the next section; the amount of damages in a personal injury lawsuit will directly impact the compensation available to the Plaintiff.

What Happens During a Personal Injury Lawsuit?

 When a person is injured or harmed as result of another’s negligence, the injured victim, the Plaintiff, can commence a lawsuit against the individual or entity that caused the harm, the Defendant.

Filing the Complaint

A lawsuit is started by the filing and serving of the Summons and Complaint. The Complaint simply sets forth allegations made by the plaintiff which can be admitted or denied by the defendant. The defendant answers the complaint by admitting or denying the allegations (the Answer). The allegations that are admitted need not be proven throughout the litigation as both the plaintiff and the defendant agree to such allegations. Alternatively, the allegations that have been denied by the defendant, must be proven by the plaintiff in order for the plaintiff to succeed.

The Burden of Proof

The plaintiff is the party that must prove his or her case. The plaintiff has the “Burden of Proof”. That means Plaintiff must establish by a fair preponderance of the credible evidence that the claim Plaintiff makes is true.

Gathering Credible Evidence

Credible evidence means the testimony and exhibits you find to be believable and reliable. The preponderance of the evidence means the greater part of the evidence. It does not mean the greater number of witnesses, or the greater length of time taken by either side. The phrase refers to the quality of the evidence, that is, its convincing quality, the weight, and the effect it has on your mind, not to the quantity. The law requires that for the Plaintiff to prevail on a claim, the evidence that supports his claim must appeal to you as more nearly representing what took place than the evidence opposed to his claims. If it does not, or if it weighs so evenly that you are unable to say that there is preponderance on any side, then you must decide the question against the Plaintiff.  It is only if the evidence favoring the Plaintiff’s claim outweighs the evidence opposed to it that you can find in favor of Plaintiff.

Discovery of Evidence

Throughout the litigation, all parties, plaintiff and defendants, are entitled to “Discovery”. Discovery allows all parties to have access to the evidence. Examples are photographs of the accident scene, medical records for treatment alleged by the plaintiff, the testimony of the parties and/or witnesses (known as “EBT”) or a physical examination by a physician hired by the defendant.

The defendant does not simply accept the plaintiff’s words but has the ability to test the credibility or veracity of such words. For example, if either a plaintiff or defendant testified that following a motor vehicle accident one of the vehicles involved sustained no property damage at all, the other party need not accept such words but rather they have the right to discover the facts or themselves. If photographs taken of such a vehicle immediately following the accident show that it was demolished, those photographs or evidence that can be used to support or defeat the witness’s testimony.

Going to Trial

Upon the completion of all discovery, the plaintiff’s lawyer will advise the court that the case is ready for trial and the case will place in the court’s trial ready calendar. The court will then advise the parties of the trial date. If the case is going to trial, it means that it could not otherwise be resolved by the parties. While most cases settle, the only way to maximize the value of a case is to prepare the case as if it is going to go to trial.

We at Block O’Toole and Murphy prepare every case as though it was going to go to trial. As a result, our clients benefit by way of achieving the maximum compensation attainable.

Compensatory and Non-Economic Damages Recoverable in a Personal Injury Lawsuit

The thought behind awarding monetary damages to a Plaintiff who has been injured due to a Defendant’s actions or lack thereof is to restore the Plaintiff to the condition they were in prior to the accident—to ‘make them whole again.’

With compensatory damages, like those awarded for medical bills incurred or potential wages lost, this is relatively easy to quantify. For other, non-economic damages, such as pain and suffering or emotional distress, it will be up to a jury to assign a monetary value if a settlement between the two parties is not reached before the lawsuit goes to trial.

Here are damages which may be recovered in a personal injury lawsuit:

• Medical Bills: In a significant personal injury case, the Plaintiff will usually require a hospital visit to treat their immediate injuries, as well as follow-up appointments to monitor the progress of their recovery. Note that future medical costs such as rehab or surgeries may also be covered, provided a medical expert determines that future treatment will be necessary.
• Lost Wages: The most immediate form of lost wages is from work the Plaintiff missed to get treated for and recover from their injuries. Such an extended absence could result in termination, resulting in further lost wages. In a worst-case scenario, it’s possible that they’ve been so badly injured that they are effectively disabled from returning to the type of work through which they were earning a living prior to the accident. To claim lost potential earning power, it will usually be necessary to consult a medical expert who has treated and diagnosed the Plaintiff.
• Emotional Distress: Catastrophic accidents may have not just a physical effect, but an emotional one as well. The trauma and fear that result from unexpected accidents may leave somebody fearful of activities that used to be normal for them. The amounts paid out for non-economic damages such as this are determined subjectively by a jury.
• Pain and Suffering: The pain that somebody experiences following an accident is another non-economic damage that may be considered. The calculation for the “amount” of pain and suffering a victim experienced generally varies based on who is calculating it, and what venue the case is being tried in.
• Property Damage: A monetary damage which is straightforward to calculate. In the event of a car crash, for example, the cost of repairs or a new vehicle may be considered.
• Loss of Enjoyment of Life: Particularly debilitating accidents may leave victims unable to enjoy all of the activities they used to before the accident, such as riding bikes with a son or daughter, or running to exercise and relieve stress. In such a scenario, loss of enjoyment of life damages may be viable.

If you have been injured due to somebody else’s negligence, we highly recommend that you first seek medical attention (nothing is more important than your health). You may also be well served by contacting an experienced personal injury lawyer to begin working through the many legal issues that serious accidents present.

To gain a better understanding of how successful personal injury lawsuits are reached, see below for case examples which the law firm of Block O’Toole & Murphy has won.

Block O’Toole & Murphy has recovered the most personal injury verdicts and settlements exceeding $1,000,000 in all of New York dating back to 2012. Call 212-736-5300 or fill out our contact form to receive a free legal consultation – there is no charge unless we win your case.

Personal Injury Case Example: Slip and Fall

In this $2,750,000 settlement for a Bronx slip and fall, our client was out at a shopping center, meaning that the parties in charge of the center had a legal duty to exercise reasonable care in order to provide her with a safe premises to shop at.

This duty of care was breached, however, when our client tripped and fell on an uneven sidewalk just outside the shopping center. The owner of the plaza and the property management company argued that they did not have explicit prior notice of the defect so that they could remedy it, and thus it was not a foreseeable hazard.

Our attorneys successfully argued that the uneven sidewalk defect must have existed for such a long time that even though the Defendants were not explicitly aware of it, they would have been aware of the defect if they had been demonstrating the reasonable level of care expected of somebody in their situation—a theory known as constructive notice, meaning that a reasonable party would have had enough time to notice and correct the defect without needing to be explicitly shown it.

By successfully arguing that this defect should have been noticed and corrected long before our client tripped on it, it was established that the Defendant’s negligence explicitly caused our clients injuries, which included significant knee damage that ultimately required a partial left knee replacement.

Personal Injury Case Example: Rear-Ended at a Stop Sign

In this $3,375,000 settlement for a rear-end accident, our client was driving in Brooklyn when he was rear-ended by a poultry truck at a red light. This was a violation of the duty all drivers have to operate their vehicles in a safe manner that protects other motorists, cyclists and pedestrians from injury. The duty to drive safely includes following at a safe distance and obeying posted speed limits and traffic signals.

The Defendant’s careless actions caused our client to suffer multiple herniated discs that resulted in lumbar and cervical spinal fusion surgeries. The Defendants unsuccessfully attempted to argue that the force of the impact was not sufficient to cause our client’s injuries. It was determined that significant money was required to compensate our client for the significant pain that he suffered as a result of the accident, and the serious surgeries which he had to undergo to correct the condition.

Personal Injury Case Example: Ladder Fall

In this $5,900,000 settlement for a ladder fall, our client was performing renovation work at a school in the Bronx. To do this, he placed a closed 12-foot ladder against a wall, as there was no room for him to fully open the ladder. As he climbed the ladder, however, it began to shake and caused him to fall.

Under New York Labor Law 240, workers who are performing some type of construction, demolition, painting or remodeling work are owed a workplace where they are adequately protected from gravity-related hazards, such as falls. This duty was breached, however, because our client was not provided with a lifeline, safety harness, or any other safety device which would have prevented his fall. As a result, we were able to successfully sue for this breach of ‘the Scaffold Law’ because the lack of available fall protection devices directly caused our client’s fall and resulting injuries, which included a badly broken arm and post-concussion syndrome.

New York – A Comparative Negligence State

You may read this and feel worried that you may not be able to recover compensation for a personal injury lawsuit because you are afraid you were partially responsible for the accident. To relieve any fears you may have— you can still win a personal injury lawsuit in New York even if you are afraid you may have some fault for the accident.

This is because New York is a comparative negligence state. Under the legal doctrine of comparative negligence, a Plaintiff could still recover for an accident which they are partially responsible for. The caveat is that the compensation a Plaintiff is owed may be diminished in proportion to their fault for the accident. For example, if a Plaintiff was deemed to be 30% responsible for an accident which caused $100,000 in damages, they may be eligible to recover $70,000 rather than the full amount.

Want to File a Personal Injury Lawsuit?

If you or someone you love has been injured due to somebody else’s carelessness, negligence, an experienced personal injury attorney can begin fighting for justice and compensation for your damages so that you can focus on a complete recovery from your injuries. The experienced New York personal injury lawyers at Block O’Toole & Murphy have won nearly $2 billion for our clients, including a $32,756,156 record-breaking verdict for a Vietnam veteran who was struck by an drug-impaired driver.

Results matter. Block O’Toole and Murphy have a history of achieving the top results in the State of New York as follows:

• $20,181,484 verdict for a man who was injured in a head-on collision
• $8,800,000 settlement for woman in Queens who was injured in a pedestrian accident
• $5,500,000 settlement for an electrician who fell from an extension ladder
• $4,995,000 settlement for a worker who fell on unsteady flooring

To receive a free legal consultation today, call us at 212-736-5300-there is no charge unless we win your case. Serving the five boroughs, Long Island, all of upstate New York, and New Jersey.