The best personal injury is the one that never happens.  This month, the Consumer Product Safety Commission issued a large recall of cribs, some of which may have been sold to parents in Buffalo.  Dorel Asia SRL has recalled 635,000 cribs sold in at K-Mart, Sears and Wal-Mart stores nationwide from January 2005 through December 2009. 

Apparently, the hardware holding up the dropdown side can fail, creating a space in which the infant may be trapped.  There are also concerns about the potential for broken slats resulting in injury or entrapment. 

There have been 31 reports of this hardware failure, with six children becoming entrapped.  Three of these children suffered bruises and one died.  There were also 36 reports of broken slats, some of which resulted in minor injuries or entrapment of the child.

As Buffalo personal injury attorneys, we have firsthand experience with the trauma a personal injury or wrongful death can bring, especially when a child is involved.  Please, if you think you may have one of these cribs, visit the Consumer Product Safety Commission website at www.cpsc.gov for further details.  If you do have such a crib, quit using it immediately and contact Dorel Asia at www.dorel-asia.com or (866) 762-2304 to receive a free replacement kit.

Buffalo has a large percentage of elderly citizens, so we are aware of the difficulties that can arise when making sure these individuals are properly cared for.  On the other side of New York State, a personal injury lawsuit has resulted in the family of John Danzy, a nursing home patient, receiving $19 million in damages.

Apparently, it is the first case to have brought punitive damages against a nursing home in New York State.

According to the lawsuit and family accounts, Mr. Danzy suffered more than twenty bedsores and suffered an infection after merely six months at the facility.  When he returned to his family, his weight had dropped from 237 pounds to 148 pounds.

The jury awarded Mr. Danzy’s family $3.75 million for pain and suffering and $15 million in punitive damages.  The punitive damages arose, at least in part, from testimony that the nursing home had altered its records in an effort to hide the degree to which Mr. Danzy had been neglected while at the facility.

Every personal injury case, whether it takes place in Buffalo or elsewhere, hinges upon the concept of “negligence.”  Simply put, negligence in a personal injury case occurs when someone is injured as a result of another party being careless.  Usually a person may be considered to have been negligent if their actions fell below what would be expected of a reasonably prudent person under the same circumstances. 

To prove negligence, an injured party must be able to prove that the party being sued had an obligation to act responsibly but did not fulfill that duty.  Instead, he or she failed to conform to the standard of conduct that would be expected of a reasonably prudent person.

The injured party must also be able to prove that the failure of the party being sued to act as a reasonably prudent person was the cause of his or her injury.  If the party being sued acted in a negligent manner but that negligence was not actually the cause of the other party’s injury, the injured party is not entitled to compensation for his or her injury.

If more than one party is found to have been negligent, for example, if the injured party is found to also have been engaging in an activity that put him or her at risk, it may impact the amount of compensation each party is responsible for providing, because responsibility for the damages may be divided among the parties based on the degree to which they were responsible for the injury.

If you suffer a serious personal injury because of an unsafe condition on someone’s property in Buffalo or elsewhere in New York State, you may be able to recover monetary damages from the property owner under the theory of “premises liability.”  Premises liability is a general term applied to accidents that occur on property as a result of negligent maintenance or a dangerous condition.

In New York State, both business owners and homeowners are required to maintain their property in a manner that provides a safe environment for those who may be visiting that property various reasons, visit the property.  If, for example, a property owner fails to repair an uneven sidewalk and suffers an injury caused by tripping over it, the individual injured may be able to bring a claim for various damages resulting from the injury.  These damages may include medical expenses, lost wages and pain and suffering. Premises Liability cases involve injuries sustained on the property or premises of a negligent third party.

In addition to establishing the degree of the injury, the success of a premises liability case may also involve issues such as how long the problem that caused the injury was present on the property and how likely it was that the property owner should have been aware of the hazard.

The results of personal injury cases outside of Western New York may impact how cases are handled here in Buffalo, so we keep track of them. 

In December of 2009, Juanita Clotter was awarded $1.6 million for past and future pain in suffering in her case against the New York City Transit Authority.  Ms. Clotter, age 46, had fallen on a defective stairway leading into the New York City subway system and ruptured her quadriceps tendon.  Surgery was required to reattach the tendon to her kneecap.  At trial, it was established that five years later, she still could not walk without using a cane or crutches.

This amount was reduced on appeal from the $2.2 million for pain and suffering originally awarded to Ms. Clotter by the trial court.  While the award for pain and suffering was reduced, the Appellate Court apparently still recognized the long term impact this type of personal injury may have on an individual.

Many of you will remember that Buffalo Bills running back Marshawn Lynch was involved in a hit-and-run accident in May of 2008 where he was accused of fleeing the scene after hitting a woman with his SUV after leaving a bar in the City of Buffalo.  He eventually pleaded guilty to failure to exercise due care for a pedestrian and paid a fine.

The woman struck, Kimberly Shpeley of Ontario, Canada, has now filed a personal injury lawsuit in Erie County Court.  She is alleging that she has suffered serious personal injury from being hit by Mr. Lynch’s vehicle and is seeking as yet unspecified monetary damages.

Many of you may wonder why, given that Mr. Lynch pleaded guilty to a traffic ticket over a year ago, Ms. Shpeley has taken so long to file her lawsuit.  In a personal injury case, an injured person has three years from the date of the injury to proceed in court.  While any specific reason Ms. Shpeley waited over a year would be mere speculation, it is not unusual for there to be a delay before a lawsuit is filed.

Reasons for delay may include waiting until she and her doctors have a better understanding of the extent of her injuries or because the parties are attempting to resolve the matter without having to resort to court intervention.  Whatever, the reason, Ms. Shpeley is well within the time frame within which she is allowed to file a lawsuit in New York State.

Loss of consortium is a claim for monetary damages that may be made by the spouse of an individual who has suffered a serious personal injury.  It may be made when, as a result of his or her injuries, the injured person is rendered incapable of providing his or her spouse with services, companionship, love, affection and sexual relations at the same level as before the accident.

These categories are obviously very broad and may cover a variety of things.  For example, a woman who performs most of the cooking and cleaning duties at her home seriously injures her back after slipping on a wet floor at a restaurant in Buffalo.  She is no longer able to perform these duties, and her husband must take on her responsibilities to maintain their household. 

When her case is sued in Erie County, not only may her personal injury attorney seek monetary compensation for her injuries and resulting limitations, but compensation may also be sought for the husband based on the additional burden his wife’s injuries have placed on him.

Punitive damages are damages awarded above the amount actually needed to compensate an individual who has been injured in Buffalo or elsewhere.  They are granted for the purpose of punishing the defendant and deterring similar conduct in the future.  Generally, for punitive damages to be granted, it must be established that the party responsible for your injury acted maliciously or with a complete indifference to your safety. 

If you are injured in a car accident in Buffalo, for example, you normally would not seek punitive damages because, in most cases, there will be no evidence that the other driver harmed you maliciously or was completely indifferent to the safety of others.  If, however, you are injured in the workplace and there is proof that the company was not only aware of the hazard, but also took steps to hide the risk, you may pursue punitive damages.

When a large number of people have been injured by the actions of a company, it may be to their benefit to bring their claim against the company as a group instead of individually.  This is referred to as a class action lawsuit.  

Many such lawsuits involve individuals from different geographic regions, so even if, for example, you suffered physical injury from the actions of a company while living in Buffalo, you may end up entering into a case involving people from around the state or even the country.

Not all class action lawsuits involve physical injury to individuals, they may also involve issues such as illegal hiring practices.  Examples of well known class action lawsuits that do involve physical injury or wrongful death would include cases against pharmaceutical companies for drugs that prove to have dangerous side effects and cases against tobacco manufacturers. 

 If you join a class action lawsuit, you will usually have to sign papers forfeiting the right to sue the company as an individual.  If you and the other individuals are awarded monetary damages, the money received from the company is typically divided up based on the amount of damage to each individual.  In other words, in most cases not all of the individuals are entitled to equal compensation.  Instead, those who suffered more harm will receive greater compensation than those who suffered less harm.

In our years of experience as personal injury attorneys in the Buffalo area, we have found that many people do not ask this question until it is too late.  SUM insurance stands for Supplementary Uninsured/Underinsured Motorist insurance, and is required to be a part of your automobile insurance policy under New York State law.  This means that if you are struck by a driver who does not have automobile insurance, your own SUM insurance provides you with coverage.

SUM insurance may also be used, however, in cases where a negligent driver does not carry enough insurance to provide adequate monetary compensation for the damages he or she has caused.  This SUM insurance may only be used when the full amount available under the negligent driver’s policy is exceeded, and only pays any difference between the amount of SUM coverage you have and the amount paid by the other driver’s insurance. 

For example, you are involved in a personal injury car accident in Erie County and suffer injuries worth more than $25,000.  The negligent driver only carries $25,000 in bodily injury coverage, but you carry $75,000 in SUM coverage.  If the negligent driver’s insurance pays the entire $25,000 in coverage, you may then seek from your insurance company up to $50,000 in additional compensation, which is the difference between the other driver’s bodily injury policy and your SUM coverage.

In our experience, many people are not aware that they can seek this additional coverage through their own insurance company.  If you are injured by another driver, it may be to your benefit to carry more than the minimum SUM coverage.