Almost everyone will get hurt at some point in their lives, but not every injury is appropriate grounds for a personal injury lawsuit. Some accidents, after all, are unavoidable – no one’s fault. That isn’t always the case, though.
Many serious injuries are caused by negligence, when one legal party fails to use appropriate care in performing a duty. This concept, that some people and companies are obligated to prevent harm whenever possible, is at the basis of every personal injury lawsuit.
Driving a vehicle is inherently dangerous. As with most risky activities, we should be able to expect a lot from drivers, since we want to reduce the risk of accidents and injuries. In short, people operating vehicles have a legal duty of care where other drivers, bicyclists, and pedestrians are concerned. On the streets of Queens, drivers should follow the rules of the road and avoid distractions inside the vehicle – using reasonable caution to keep others safe. These duties apply to everyone operating a vehicle, whether that vehicle is a passenger sedan, truck, bus, motorcycle or bicycle.
By the same token, drivers can be held accountable for failing to use reasonable caution when that failure causes injuries and / or property damage. In practical terms, it’s usually the at-fault driver’s insurance company who can be expected to cover at least a portion of an injury victim’s medical expenses and lost wages. New York, however, is a “no-fault” insurance state, which means that injured drivers are required in the majority of cases to get compensation through their own insurer first. That’s true regardless of who was responsible for the accident, but it can limit a victim’s right to file a personal injury lawsuit.
New York State’s Serious Injury Threshold
New York State only allows certain victims to file suit against at-fault drivers. In order to pursue compensation in a Queens court, your injuries have to meet a serious injury threshold, according to the New York State Bar Association:
- Dismemberment (loss of limb)
- Significant disfigurement
- Fracture (broken bone)
- Loss of a fetus
- Permanent loss of use of a body organ, member, function or system
- Significant limitation of use of a body function or system
- 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 90 days during the 180 days immediately following the occurrence of the injury or impairment
As you’ve probably noticed, some of these “injuries,” like death, are fairly clear-cut. Others are more abstract, and likely arguable in court, although significant case law exists to provide guidance on what does and does not count as a serious injury. We suggest contacting an experienced personal injury attorney to discuss your own injuries, review medical records and determine whether or not the harm you have suffered allows for a personal injury lawsuit.
Economic Loss Threshold
There’s only one exception to this serious injury requirement and it hinges on the amount of losses the victim has incurred due to the other driver’s negligence. Regardless of their injuries, the victim may be eligible to file a personal injury lawsuit if their economic losses are greater than $50,000.
Hit-And-Run Car Crashes
A driver’s legal duties go far beyond the reasonably careful operation of their vehicle. In fact, drivers in Queens have legal obligations that begin when they are involved in an accident.
The New York State Department of Motor Vehicles (DMV) reports that drivers in New York are required to stop and exchange information with the other drivers, along with pedestrians and bicyclists, after an accident. When significant property damage is involved, each driver involved must file a motor vehicle accident report with the DMV within 10 days of the accident. The requirements surrounding personal injuries are even more stringent. If someone is hurt or killed in an accident, drivers are obligated to contact the police immediately.
While leaving the scene of an accident is a criminal act, hit-and-run accidents are distressingly common. In New York City, the Police Department recorded 5,066 hit-and-run traffic accidents that led to critical injuries in 2016 alone. In each case, a driver left the scene without reporting the incident. Most of these drivers were never brought to justice. Those who can be identified, on the other hand, face significant criminal – and civil – penalties. In a personal injury lawsuit, for example, many hit-and-run drivers will be ordered to pay “punitive” damages, since leaving the scene of an accident is evidence of particularly egregious disregard for the safety of others.
Property owners have a legal duty to maintain reasonably safe premises, which applies to business owners and, in many cases, the owners of residences as well. In fact, home owners and apartment building owners in New York City are obligated to maintain adequately safe sidewalks outside their properties. The obligation to provide a reasonably safe premises ends at the legality of a visitor’s presence. Trespassers, who enter a premises without the legal right to do so, are not owed a duty of care.
To secure compensation, an injured person will have to prove that the property owner was negligent in maintaining the premises – a business owner, for example, who fails to repair a dangerous railing that they’ve known was unsafe for months.
Premises liability extends to all property owners, from a small convenience store on the corner to the owner of a seasonal amusement park. No matter the location or purpose, every property owner owes legal guests a reasonably safe place to walk and do their business.
Dog bites can be devastating, especially for young children, who are most likely to be bitten. In New York, around 6,600 children are injured by dog bites every year, about 200 of them severely enough to need hospitalization. Suing the dog’s owner may be possible, but unlike other states, New York places limits on an owner’s liability.
According to the State’s Agriculture & Markets Law, Section 123, owners can be held strictly liable for the medical costs caused by a dog bite, but only if the animal is considered a “dangerous dog.” Judges and justices of the peace can deem dogs as “dangerous,” often in the wake of an attack. After a dog has been determined to be dangerous, the dog’s owner is required to confine the dog securely and purchase a liability insurance policy. In the event that a dog, previously deemed “dangerous” by the court, bites another person, the owner becomes liable for that person’s medical expenses.
When a dog hasn’t yet been judged dangerous, the burden to prove that the animal had a dangerous tendency to bite, and that the owner knew or should have known about it, falls on the injured victim.
Healthcare professionals have a legal obligation to uphold the accepted standards of their profession. When a medical error leads to patient harm, doctors, nurses, diagnostic technicians and even entire healthcare systems may be liable for the consequences of the mistake.
Medical malpractice, however, is an extraordinarily complicated area of civil law, requiring extensive knowledge both of legal principles and of the standards governing medical practice. As a broad overview, here are the four essential elements that need to be proven in any lawsuit involving errors in healthcare:
- a doctor-patient relationship existed
- a certain standard of medical care should have been followed under the circumstances
- a medical professional violated that standard of care, acting or failing to act the way a similarly-educated, reasonable professional would have under similar circumstances
- the medical professional’s violation of the standard of care led to patient harm, injuries or a less-favorable prognosis
Medical malpractice lawsuits require the knowledge and guidance of independent medical experts, who will help attorneys figure out how care should have been administered, as well as how an individual doctor failed to act appropriately. Negligence can slip into the administration of medical care at any step, from diagnosis to treatment:
- Misdiagnosis, along with late or delayed diagnosis
- Surgical errors, including foreign object cases
- Anesthesia mistakes
- Birth injuries
- Medication errors, like over- or under-prescription and administering the incorrect drug
Like all areas of civil law, medical malpractice cases are governed by a strict “statute of limitations,” which limits the amount of time injured patients have to file suit. In New York, the statute of limitations for medical malpractice is 2.5 years, or 30 months, beginning from the date that the victim was harmed. There are few exceptions to this rule, so time may be limited.
Manufacturers, small or large, can be held accountable for allowing unreasonably dangerous products to reach consumers, especially when they fail to warn about those dangers.
Many widely-publicized lawsuits fall into this particular category of personal injury claims, from the lawsuits filed over Takata’s exploding airbags and the litigation surrounding Phillip Morris’ tobacco products to the numerous lawsuits filed every year of dangerous drugs and medical devices. Most of these claims fall into one of three buckets, depending on the specific product defect alleged:
- manufacturing error
- design defect
- failure to warn
In general, a consumer will have to demonstrate that they were using the product as intended before its manufacturer can be held responsible. “As intended” doesn’t necessarily mean following the manufacturer’s specifications to the letter. Would the average, reasonable consumer have used the product that way? If so, you were probably using it as “intended” for the purposes of a civil lawsuit.
When a loved one dies, surviving family members may be eligible to file a civil lawsuit against the person or legal entity whose wrongful conduct led to the death. In New York, wrongful death lawsuits can only be filed by the “personal representative” of the deceased’s estate, but the damages pursued can include losses sustained by other surviving family members.
Where damages are concerned, most wrongful death lawsuits demand compensation for:
- funeral and burial expenses
- medical and nursing expenses, along with lost wages, incurred due to the deceased’s final illness or injury
- pain and suffering experienced by the deceased during their final illness or injury
- the value, to survivors, of the support and services the deceased would have provided and the value of parental care they would have provided to surviving children
While other states also allow survivors to claim damages for their own pain, suffering, mental anguish and loss of companionship, New York does not. Loved ones have only two years from the date of death to file a wrongful death lawsuit in Queens.