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Personal Injury

Tuesday, May 2, 2017

Can You Sue City Hall?


Can You Sue City Hall?

Many individuals mistakenly believe that they cannot sue city hall, but this is not the case. Under the doctrine of sovereign immunity, town, city, county and state governments were once protected from most lawsuits. Today, those rules have been scaled back to some extent, and the government can be held responsible for personal injuries and property damage or unlawful conduct.


Read more . . .


Wednesday, March 22, 2017

Injured by a Product: Do I have a Claim?


Injured By A Product:  Do You Have A Claim?

Most of the items we use on a daily basis are manufactured by a business operating somewhere in the world.  Think about it:  the vacuum cleaner, water heater, cell phone, the things we take for granted every day.  What if the water heater malfunctioned and you were burned or the vacuum cleaner exploded while you were using it.  If these accidents were due to a defect in the product, you might be entitled to compensation.

The elements for a products liability claim are relatively simple but can be difficult to prove.
Read more . . .


Wednesday, July 13, 2016

Factors Used to Determine Fault in a Car Accident


When the courts are asked to determine liability in a personal injury case involving a traffic accident, one of the first things a jury is asked to consider is who is at fault for the accident. There are several factors that are taken into consideration when making that determination.

First and foremost, if any of the drivers involved in the accident were guilty of any traffic violation related to the accident, there is a good chance that the court will assign fault the driver guilty of the infraction. Common traffic violations related to traffic accidents include running red lights or stop signs, speeding, making improper turns, and texting while driving. Similarly, if any of the drivers is guilty of driving under the influence of drugs or alcohol, he or she is likely to be found at fault for the accident.
Read more . . .


Friday, May 6, 2016

Injured While on Medicare: What Happens Now?

Injured While On Medicare: What Happens Now?

When you are injured in an accident due to the negligent, reckless or willful conduct of another, you may be entitled to receive a settlement.  Often times, these settlements are paid out by insurance companies.  Unfortunately, if you are a Medicare beneficiary, you may have to forfeit some or all of the settlement you receive.

Medicare is federally provided health insurance.  Those that are 65 years or older and some younger people with qualifying conditions have the option to be covered by this type of insurance.  If you are injured in an accident, Medicare may cover some of the costs of your medical treatment.  But, pursuant to the Medicare Secondary Payer laws, Medicare does not have to pay for medical expenses if an enrollee is receiving a settlement or other award from an insurance company as a result of their injuries.   Medicare can ask to be reimbursed for the money it paid out for medical expenses.

Generally, if you are a Medicaid enrollee, are injured in an accident and make a claim against a defendant that has liability insurance, you must report the case to Medicare.  Once a case is reported to Medicare and they determine that they may be able to recover any of the money they laid out for medical bills, they will send you a Rights and Responsibilities letter outlining the process.  You will then usually receive a Conditional Payment Letter within approximately two months.   This letter will detail all of the claims they paid and expect to be reimbursed for once you receive a settlement.  It is important to note that the amount listed on the letter is usually not the final amount.  These letters are updated and reissued every 90 days and all of the claims on the letter may not be related to the accident.  Therefore, you must review the claims to determine which need to be deleted.  Once you do this, you can contact Medicare using the instructions included in the letter to have the amount updated.  Once you receive a settlement, you must, again, let Medicare know.  They will then issue a Demand Letter with a final amount due and the date by which payment must be submitted.

If you were injured while receiving Medicare benefits and have filed a lawsuit, you might find yourself faced with a Conditional Payment Letter.  Be sure to show this letter to your attorney as soon as possible.

 


Tuesday, March 1, 2016

Get Hurt in the Gym? Sure you can Sue!

Weight Lifting Injuries at the Gym: Who Is Liable?

 

Working out at a gym is usually good for your health, but not always. Perhaps you lifted more weight than you could handle. Or a piece of strength training equipment malfunctioned. Or the gym staff failed to instruct or spot you properly. Can you hold the gym owners or others liable for damages?

 

There have been many cases in which plaintiffs have successfully sued gyms, sports clubs, Pilates studios and other exercise facilities for their injuries. Even if the gym owners were not aware of an unsafe condition, they may be liable if proper inspection would have uncovered it. Sometimes you may also be able to bring a product liability lawsuit against companies and individuals responsible for the design, manufacture, sale or distribution of a potentially dangerous exercise machine or its components.

 

Equipment malfunctions are not the only basis for gym liability. You may be able to sue a gym for poor instruction or supervision. If an unqualified staff member imposed excessive demands, provided improper instruction or did not warn of potential risks, the gym itself could be liable for muscle injuries or other harm.

 

One hurdle to overcome is the liability waiver that most gym members must sign when they join, promising not to sue if they are injured at the gym.  Fortunately, in New York, these waivers are unenforceable in many instances. New York General Obligations Law Section 5-326 makes waivers of liability for gym related injuries void if three conditions are met:

1) The gym membership agreement is entered into between you and the owner or operator of the gym; and

2) The liability waiver in question attempts to exempt the owner and operator from liability for their own negligence (or that of their agents or employees); and
3) The owner and operator of the gym receives a fee in connection with your use of the facilities (i.e. membership or use fees).

If these three conditions are met, your gym, be it New York Sports, Equinox, Crunch, or any other gym of which you are a paying member, cannot avoid liability if you are injured as a result of their negligence.  These waivers are included in the membership agreements the gym has you sign, even though the gym knows full well the waiver is likely not enforceable, in hopes that you will refrain from suing believing that the waiver is valid.

 

 If you are injured, you should immediately report the incident to the gym and ask for a copy of any report prepared by the gym staff. You can show that document, along with any photographs you may have of any equipment involved, to a lawyer. Contacting an experienced personal injury attorney can help you decide if you have a case to pursue.


Friday, January 29, 2016

How Is Workers' Compensation Different from Personal Injury?

The primary difference between a workers' compensation claim and a personal injury claim is that a personal injury claim is based on fault, while a workers' compensation case is not. Any injury that occurs to an employee at his/her workplace is covered by workers' compensation, regardless of any negligence or lack of it.

In order to recover damages against another person in a vehicular accident or slip and fall, on the other hand, one must be able to prove some type of negligence on the part of the other person. In other words, the other party must be in some way to blame for the accident. Examples in the cases mentioned would be reckless or drunk driving or poor property maintenance resulting in a floor surface that is irregular or slippery.

In Workers' Compensation Cases, Fault-Finding Is Not Necessary

With very few exceptions, employees who are injured on the job are entitled to workers' compensation benefits regardless of fault. Employees need not prove any negligence on the part of their employers in order to file for and receive workers' compensation benefits. As a matter of fact, employees are eligible to receive workers' comp benefits even if the employee's own negligence resulted in the injuries.

Differences in Damages in Workers' Comp Cases and Other Personal Injury Cases

If it seems that the nature of workers' compensation, in which you can be reimbursed at times for your own clumsiness, is too good to be true, it is. This is because, while workers' comp will pay you compensation for your medical bills, any necessary vocational rehabilitation, lost earning capability or permanent impairment, it will not pay for your personal suffering.  The cap on workers' comp benefits, therefore, is much lower than the typical personal injury settlement once blame is assigned.

When you file a personal injury lawsuit, you may be entitled to compensation for enduring pain and suffering, loss of enjoyment of life (hedonic damages), even damage to clothing or jewelry during the accident. In cases in which you can file for workers' comp, however, you have foregone the right to sue your employer or co-workers for negligence and also the right to collect damages for pain and suffering.

Are Any Workers Legally Permitted to Sue Their Employers?

Yes, there are several categories of employees who are allowed to sue their employers and co-workers when they are injured on the job:  (1) Police Officers and Firemen; (2) NYC Sanitation Workers; (3) NYC School Teachers and School Professionals; (4) Crew members of ships or boats; (5) Interstate railroad workers (including Metro North).  


Wednesday, November 4, 2015

Damages Allowed in Personal Injury Cases

Damages Allowed in Personal Injury Cases

If you have been injured in an accident, and another party is to blame, you may be able to obtain monetary damages from that person or business to compensate you for medical expenses, loss of income and pain and suffering as a result of the accident.  

There are a variety of types of damages allowed in personal injury cases. Those damages can be divided into several categories. First, there are compensatory damages and punitive damages. There are also two types of compensatory damages: economic and non-economic.

Compensatory damages are damages that are intended to compensate a person for a loss or problem relating to a personal injury, including monetary losses, pain and suffering and physical impairment. Punitive damages are intended to punish the negligent party for its wrongdoing, and aren’t specifically related to a loss the plaintiff suffered.

For example, if a company decided to dump toxic waste into a creek instead of disposing of it safely, and as a result a woman living next to the creek developed cancer, her compensatory damages may include amounts for her medical expenses, her lost wages, and her pain and suffering.  In addition to these damages, the jury may also decide to award punitive damages, which are strictly intended to punish the company for its wrongdoing. Punitive damages are somewhat rare – in most cases, plaintiffs only receive compensatory damages.

Compensatory damages can be further divided into economic damages and non-economic damages. Economic damages are those damages that result in an identifiable economic loss. For example, economic damages include medical expenses, lost wages, the cost of hiring a helper or nurse, and the cost of special transportation or medical equipment that’s needed as a result of the accident.

Non-economic damages are damages for harm relating to the injury sustained that are difficult to quantify using a specific dollar amount. Instead, non-economic damages are awarded to a person who has suffered a diminished quality of life as a result of the accident. Some examples of non-economic damages include emotional distress, pain and suffering, embarrassment or humiliation, loss of enjoyment of life, loss of consortium (sexual relations) and scarring or disfigurement. Although non-economic losses can be difficult to quantify, they are an important component of a personal injury case.


Tuesday, October 13, 2015

Bicycle Accidents

Each year, thousands of Americans take to the roads on bicycles. This mode of transportation is touted as being more cost-effective and more environmentally friendly than motor vehicles but when it comes to safety, cycling can come with a much greater risk. According to the National Highway Traffic Safety Administration, 39,000 individuals were injured in motor vehicle crashes in 2012. That same year, 724 cyclists lost their lives following accidents on the roads.

In addition to the dangers of moving vehicles, cyclists often suffer injury from being “doored”; this occurs when a driver, or passenger, of a stopped vehicle, suddenly opens the door into a cyclist’s path of travel. Injury can also occur from street defects, such as large pot holes or uneven manhole covers that can cause the cyclist to lose control. If you’ve suffered an injury while riding your bike, it’s important that you consult a personal injury attorney who has experience representing cyclists. Unlike other accidents, cycling accidents have a number of unique considerations; these include:

Insurance Coverage May Be Different for Cycling Accidents
Many attorneys have litigated car accident cases and may assume that the insurance process works the same way for cycling incidents, but this is rarely the case. In fact, many states have unique rules regarding the minimum coverage and payouts when a cyclist collides with a motor vehicle, even when the driver of the vehicle isn’t found to have been negligent.

The Laws of the Road Differ for Cyclists
In determining fault, your attorney must understand the roles and duties of all parties involved. When it comes to cycling accidents, few are intimately familiar with the laws that apply to cyclists but such knowledge is imperative for case success.

The Injuries Are Different
Injuries sustained when riding a bike are vastly different from those sustained when driving, or riding in, a car.An attorney who has represented injured cyclists will likely have a much better idea of how much money will be required for immediate and long-term treatment.

As experienced personal injury attorneys, our firm can help you through the complex litigation process following  a cycling injury and help you receive the compensation you need to recover, and get back on that bike as soon as possible.

 


Tuesday, October 13, 2015

SUM - The most Important Insurance you DO NOT Have

We have a new client who was out for a walk when he was hit by a car, suffering multiple fractures to his legs, wrist and hand. From the address in Brooklyn of the offending driver on the police report, and the fact that he was driving a 14 year old Chevrolet, I had a pretty good hunch that he had a minimal $25,000 insurance policy. I asked my new client if he had a car and he said he did. I asked him about his insurance coverage and he said he had the most wonderful insurance brokers who have been handling his family's business for decades and that I should call them and that they would send over the declarations page. He did know that he had a two million dollar umbrella policy, which I knew could not be issued unless he had several hundred thousand dollars in liability coverage. "Thank goodness" I thought, since this poor man would not be limited to the $25,000 of the offending driver's insurance coverage. Surely his own policy had Supplementary Uninsured/Underinsured Motorist (SUM) coverage matching his own high liability limits, and therefore he could likely collect several hundred thousand dollars as compensation for his terrible injures.

I returned to the office and called his "most wonderful brokers" and they happily took my call and promptly emailed his declarations page to me. I looked at his coverage and I felt like I had been punched in the gut. His "most wonderful brokers" had in fact obtained liability coverage for him of $300,000 with a two million dollar umbrella; ample coverage if he ran someone over and they sued him. They had also gotten him $100,000 extra no-fault coverage to pay his medical bills, and he had full collision and comprehensive. This was not an inexpensive policy written by some no-name insurance company, but rather a fairly expensive policy issued by one of the largest and most well known insurance companies.

What his "most wonderful brokers" did not get for him however was Supplementary Uninsured/Underinsured Motorist (SUM) coverage of more than the minimum $25,000 required by law in New York. As a result, this poor man with two young children who was hit by a 19 year old kid driving a 14 year old car he bought used two weeks earlier for $900, could only collect $25,000 for his injures. I called his brokers and asked them to explain why my client was sold every high premium, high limit coverage available, but was not advised to purchase SUM coverage matching his $300,000 liability limits. I knew why, but I wanted to hear them say it. Instead they said they couldn't speak to me anymore and hung up.

PLEASE DO NOT LET THIS HAPPEN TO YOU or your loved ones. For those of you who don't work with auto insurance everyday, Supplementary uninsured/underinsured (SUM) coverage is a type of insurance coverage on every auto policy in New York which provides you with coverage to collect against on your own policy if you are injured by another vehicle that has lower liability coverage than you have on your vehicle. The amount of coverage available to you is automatically set at the required minimum of $25,000, even if your liability coverage is much higher, but you have the option of purchasing additional coverage up to the limits of your own liability coverage.

In the case of my client, he could have purchased up to $300,000 SUM coverage and collected $25,000 from the policy of the person that hit him and $275,000 more from his own SUM coverage IF he had had it. But he didn't have it and here is why; New York State insurance regulations limit the amount of money an insurance company can charge for SUM coverage. While the premium on $300,000 liability coverage may cost more than a thousand dollars, insurance carriers can only charge about $45 for $300,000 SUM coverage. Because the amount the insurance company can charge is so small, the insurance companies, and their brokers, would actually prefer you not buy the SUM coverage because if you make a claim against it, it throws off the premium collected to claims paid out ratio ("claims loss ratio") used to determine broker bonus compensation and insurance company profits. Making a claim against your own SUM coverage also does not effect your own rates, because there is no finding of fault involved.

New York State Courts have held that a broker is NOT required to advise you to buy extra SUM coverage, and that they have no liability for failing to obtain extra SUM coverage for you unless you specifically request that coverage. The Courts have held that statements such as "give me the best insurance" or "give me full coverage" or "give me high limits" is not a specific request for SUM coverage. You must say "make my SUM coverage limits match my liability coverage limits" or "give me $300,000 (or more if your liability coverage is higher) SUM coverage" for the broker to be required to get it for you.

I want each one of you to take out the declarations page of your car insurance and check to see what your SUM coverage is. If it does not match your liability limits, your broker or insurance company has done you a tremendous disservice. Call them up and ask them why they did not advise you to get SUM coverage matching your liability coverage, and anything they say other than "because I don't make any money from it" is a complete and utter lie. Tell them to they are fired for putting you and your family at risk, and find a new broker or carrier who has your best interests at heart. For those of you who do not know me, I do not sell insurance. I am just the personal injury lawyer who has to break the bad news to you after it's too late to fix it.

Please share this with everyone you know and help them help themselves.



Tuesday, August 4, 2015

Good Samaritan Laws: Should I help a stranger in need of medical attention?

Sometimes, individuals are in need of urgent medical attention. There aren’t always trained professionals around to help. Ordinary citizens who see someone in distress could be afraid to help, for fear that they may be held liable for doing something wrong. Good Samaritan laws originated to avoid that scenario.

As a result, many states have enacted “Good Samaritan” laws that protect people who come to the assistance of others from legal responsibility.  Good Samaritan laws in general provide that a person who sees another person in imminent danger, and tries to rescue the injured party, can’t be charged with negligence if the rescue attempt does not go well.

Good Samaritan laws are intended to encourage people to assist others by removing the fear of legal responsibility for damage done by the rescue attempt. For example, a Good Samaritan may see an overturned car beside the road, and discover the driver is trapped. If the Good Samaritan pulls the trapped driver out of the car, he or she may exacerbate the driver’s injuries. If the driver suffers a spinal injury while being pulled out of the car, he or she cannot later sue the Good Samaritan for negligence under the Good Samaritan law of his or her state.

In general, in order to use the Good Samaritan law as a defense to negligence, there are four elements that must be met. First, any assistance provided must be given as a result of an emergency. Second, the emergency that necessitated the care can’t be caused by the Good Samaritan. Third, the emergency services provided by the Good Samaritan can’t be given in a grossly negligent manner. Finally, if it’s possible to obtain permission from the accident victim, the victim must have given permission for the rescue. This may involve calming the person down before asking if he or she needs assistance. One extra requirement in some states is that the aid rendered must be free – if a doctor renders aid and sends a victim a bill later, the doctor could lose protection under the Good Samaritan law.

Currently, all 50 states plus the District of Columbia have some form of Good Samaritan law. There are many variations on the laws from state to state. Some states have different standards for emergency first responders, and some Good Samaritan laws limit who can provide medical assistance to someone in need. Also, most states providing Good Samaritan protections require that the medical care take place outside a hospital or other medical facility – so if a person goes into distress inside a hospital, and a professional renders aid, that person can be held liable if the aid is rendered negligently.

Another type of Good Samaritan law actually requires people to call 911 in some situations - usually if you cause an accident and someone is hurt, or if you happen upon an accident. For example, Vermont has a law that says if an individual sees someone who needs help, that person must call 911 or could face prosecution. This type of Good Samaritan law is not as common, but it’s important to be aware of your state’s requirements for mandatory assistance.
 


Tuesday, July 21, 2015

Deciding Who to Sue: How Do I Know Who to Name as Defendants?

When you decide to start a lawsuit, it can be confusing to identify the responsible parties. Sometimes there are a lot of people involved in your injury; maybe you're suing a business, and you're not sure about its official name or who the owners are. Factual investigation is often a crucial part of starting a personal injury lawsuit.

You can select more than one defendant to sue if that person or company is somehow connected to the harm you suffered. There are "necessary" defendants -- people without whom a court will not be able to evaluate all the facts of your case or reach a conclusion. "Permissive" defendants are not essential to the case, but if your dispute with them involves the same facts and issues as your dispute with the necessary defendants, you can usually include them in your lawsuit.

You may also want to expand your lawsuit to parties not directly involved but still liable. For example, if you are suing someone who harmed you in the course of performing a job, his or her employer may be liable. If a poorly designed or malfunctioning product is involved, you may be able to sue the companies and individuals involved in the product's design, manufacture, distribution or sale.

Suing individual owners of corporations, or a corporate parent of a subsidiary, can be difficult. The corporate structure limits liability, but there are exceptions. A court will "pierce the corporate veil" when fraud is involved or when justice demands it.

Before filing your lawsuit, you need to consider all those who have a connection to your claim. An experienced personal injury attorney can help you evaluate the facts of your case and determine who to sue.


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  The New York City (NYC) personal injury law firm, Friedman, Levy, Goldfarb & Green P.C., represents clients in Manhattan and New York County, Brooklyn and Kings County, the Bronx, Queens, Staten Island, as well as serving Nassau County and Long Island, Suffolk County, Rockland County, Westchester County, Harlem and throughout the State of New York.



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