Personal injury laws can be complex, and you should not try to tackle them alone if you have been injured by another person’s negligence. However, it will benefit you to have a basic understanding of New York personal injury laws and legal procedure as you go through the process.
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Personal injury is a legal term that describes a physical or emotional injury. A personal injury lawsuit seeks to hold another person, company, or entity responsible for your injury. Personal injury doesn’t include property damage. However, many lawsuits also demand compensation for property damage arising from the same incident that caused you harm.
You don’t need to learn all the laws related to personal injury claims. The area of law governing personal injury claims is known as tort law. We’re here to explain which laws are relevant and how they impact your case.
There are many personal injury laws in any jurisdiction, which is an area that has its own court system. New York has many statutes that apply to personal injury claims. They can be found in New York’s Consolidated Laws. The state also has case law that is relevant to personal injury cases. Case laws are laws that come from judicial opinions in lawsuits.
Negligence is a major concept in the law. Negligence basically means someone was careless and caused another person harm. It does not mean someone intentionally hurt another person.
Personal injury claims are typically based on the allegation that the other person was negligent. To be negligent means a person failed to uphold their duty to act as a reasonable and prudent person. Their failure to act carefully then caused an accident, which resulted in another person getting hurt. In some cases, you might claim the other person was grossly negligent, which is more significant bad behavior. Gross negligence is like recklessness.
Negligence is a failure to uphold a duty of care. Most people, in most circumstances, are required to maintain the duty of ordinary care. They have to act like reasonably prudent people would under the same or similar circumstances. In other words, they have to be careful and avoid hurting someone. When someone is negligent, it means they failed to uphold this duty. It doesn’t mean they tried to hurt someone or acted maliciously.
Another important element of negligence is causation. To hold someone responsible for your personal injury based on negligence, you have to prove a proximate cause. You must prove that were it not for the accident, you would not have been hurt. You also have to prove that your injuries were a foreseeable risk of the other person’s negligent behavior. Causation can get tricky in a personal injury suit if multiple other people might be to blame for your injuries.
Liability is the legal concept of responsibility for paying for another person’s injuries, which are also known as damages.
You shouldn’t confuse fault and liability. The person who is at fault for your injuries is the person whose negligence caused the accident. The at-fault person might be liable too. But other parties also might be liable, even if they did not directly cause the accident. In many personal injury cases, the negligent person is not the party who ends up paying for damages. We thoroughly investigate personal injury claims and look for any liable parties.
There are two types of parties in personal injury lawsuits: plaintiffs and defendants.
Plaintiffs are the injured parties and their loved ones. They try to hold the defendants liable for their damages. They are responsible for proving the defendants are responsible. In other words, they have the burden of proof. There can be one or many plaintiffs. When there are dozens, hundreds, or thousands of plaintiffs, it might be a class action or mass tort claim. During a class action, all of the plaintiffs are certified as a class and represented in one lawsuit. But in a mass tort, each plaintiff brings their own lawsuit, though they often share knowledge and resources.
The defendants are the people who allegedly caused the plaintiffs’ harm. There can be one or many defendants. Defendants can put up a defense on their own or with the help of lawyers. They are not required to prove they did not cause the accident. However, defendants benefit from providing evidence that supports their lack of liability and creates doubt.
We can guide you through the personal injury claims process. Not every claim will go to court. We approach each client’s case with a trial in mind, so if a lawsuit becomes necessary, we’re prepared. Each case is unique, but the typical personal injury claim and lawsuit could look like this:
After you’re hurt in an accident, you need to hire a personal injury attorney. They will determine if you have a case, the possible damages you can recover, and advise you on how to approach your situation.
Your attorney will investigate your accident and start building your case with evidence. We’ll help you identify anyone who could be held responsible for your damages so you can recover the maximum available compensation. Your attorney will also ensure you’re filing your claim within the statute of limitations.
Next, you’ll send a demand letter to all liable parties. This letter gives the value of your claim and how you expect to be compensated. The letter gives the liable parties a deadline to respond. Your attorney should be the primary contact with the defendant’s insurer to protect your claim.
The liable parties or their insurer may make an initial settlement offer. However, it’s probably a lowball settlement, an amount that might appease your immediate needs and absolve them of further claims. You shouldn’t take accept any offers until your attorney can approve them. If a settlement can’t be reached, you will file a lawsuit.
Once it becomes necessary to file a lawsuit, your attorney will file a complaint for damages. It works like a demand letter, but it notifies the alleged at-fault parties of legal action. They’ll be served and have an opportunity to answer your complaint. It’s likely they’ll dispute the damages, offer a counterclaim, or bring in a third-party. Then the matter proceeds towards trial.
During the pre-trial period, we’ll use discovery to examine their evidence to strengthen your claim. We’ll also find expert witnesses who can support your claim. We can also file pre-trial motions, like suppressing evidence we feel is irrelevant to your case. It’s likely the defendant may ask the court to dismiss the case. We will fight their motion to dismiss.
The defendant may choose to settle your claim before it goes to trial using mediation or arbitration. We’ll fight for a fair settlement that covers your damages and fees. If we can’t reach a settlement, we’ll take the liable parties to court for a trial. We’ll present our argument to a jury, then await their verdict. If the jury agrees with the defendant, we’ll be able to file for an appeal, especially if we believe there was a legal error that influenced the outcome of your case.
When you file a personal injury lawsuit, you have to prove the defendant is liable. You have to present enough facts to convince the jury.
In personal injury cases, the burden of proof (the standard you have to meet) is “by a preponderance of the evidence.” This means you have to present enough evidence that the jury believes it is more likely than not that the defendant is responsible. Proving a personal injury claim requires gathering a great deal of evidence that you can show the jury. This can include photos, videos, audio recordings, police reports, medical records, business records, diagrams, re-enactments, witness testimony, and expert witness testimony.
After an accident, most people wonder “what is my NYC personal injury claim worth?” Many factors influence the value of a case, including the severity of your injuries, the amount of medical treatment you need, how long you are out of work, and whether you suffered a disability that has left you unable to work. We take everything into account when we calculate the value of your case.
Your lawyer will begin to calculate the value of your claim by adding up your accident and injury-related expenses, including medical bills, transportation to medical care, at-home care, medical supplies and equipment, prescriptions, and lost income. We also will calculate your likely future medical expenses and wage loss.
In many personal injury cases, you also can demand compensation for your physical and emotional injuries. We have years of experience placing value of non-economic injuries, like disfigurement or physical limitation, pain and suffering, and mental anguish.
Separate from economic and non-economic, which are known as compensatory damages, are punitive damages. These are meant to punish the wrongdoer, not compensate you for a physical, emotional, or financial injury. Punitive damages are not given in most negligence-based cases. You must prove gross negligence, wanton recklessness, malice, or other egregious behavior to win punitive damages.
When you file a personal injury claim, expect the defendant to fight back. The defendant doesn’t want to be held responsible for your damages. Their insurance company doesn’t want to pay out on the claim. You need to work with an experienced New York personal injury to provide a strong argument and overcome the defenses.
The defendant might claim that you or another party was also negligent. They might argue that someone else was mostly negligent. This argument can be very effective in reducing the defendant’s liability based on New York’s pure comparative negligence law. Under this rule, each party involved is assigned a percentage of fault. For example, the jury might decide the defendant was 80% responsible, and you were 20% at fault. The defendant is then only responsible for 80% of the damages. Your compensation is reduced by 20%.
The defendant might argue that another person’s conduct was more significant than their own and is the real cause of your injuries. When you prove cause in a negligence claim, you are saying that there is a straight line from Event A to Event B. For example, there is a straight line from a driver running a red light to you being hurt in the resulting intersection collision. But when multiple people are involved, there might be intervening causes. An intervening cause doesn’t always break the chain of events, but it could be such a significant event that it becomes the primary cause of your injuries.
Most personal injury claims settle without going to trial. But many insurance issues can get in the way between you and a fair settlement. Working with a seasoned lawyer can help you overcome these issues and resolve your claim in your favor.
Common insurance issues we deal with include:
Every jurisdiction places a time limit on how long you have to file civil lawsuits. According to New York law, you have three years from the date of the accident to file a personal injury lawsuit. The amount of time differs for other types of lawsuits, such as medical malpractice.
Statutes of limitations seem straightforward. But calculating your deadline to file can be complicated. You should talk with an experienced personal injury attorney about how long you have to file. Certain issues can delay the start of the clock. Other issues can pause the clock, giving you more time to file. Another issue depends on the liable party. If your claim is against a local or state government agency, then you have a lot less time to file your claim. In addition, when filing a lawsuit against a municipality, plaintiffs are required to first file a Notice of Claim shortly after the accident.
Personal injury cases include an array of different practice areas, including:
Our law office can handle any serious injury case, and we will guide you to obtain the best possible outcome. You should not suffer as an injured person due to no-fault of your own.
We are here to explain personal injury law to you and how to move forward with your claim. You do not have to navigate the complexities of New York tort law yourself. Please do not hesitate to reach out for a free consultation with the personal injury lawyers at Hecht, Kleeger & Damashek, P.C. through our online form or by calling (212) 490-5700 with your questions about personal injury laws.
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I have worked with countless attorneys over the years and Jon Damashek stands out among them. I have seen first hand him advocate for his clients vigorously. He fights for the rights of the seriously injured, does not back down…
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I cannot recommend Jon Damashek highly enough. I attribute the favorable outcome to my case to his consummate and tireless dedication and tenacity. Just as important, he was truly there with me every step of the way. He was very…
I had the opportunity of having this amazing team of lawyers work on my case. When I first met with Jordan Hecht and Michael Kusz, I really liked their energy and the spunk that they had, it meant business and…
“I had the opportunity to work with Jon Damashek and had an amazing experience. I have known Jon for many years and always felt very comfortable relying on his expertise, knowledge of the law, and more importantly – his ability…
“I cannot recommend Jon Damashek highly enough. I attribute the favorable outcome of my case to his consummate and tireless dedication and tenacity. Just as important, he was truly there with me every step of the way. He was very…