Here in Buffalo, the limits of “assumption of risk” as a defense in a personal injury lawsuit are currently different than they are in Albany.  That fact, however, is about to change.

Generally, assumption of risk is a defense in personal injury cases that may bar the injured person from collecting any damages if he or she was aware of the danger involved in a certain activity but chose to proceed anyway.  It is frequently applied in cases related to sporting or entertainment activities, where the injured party was aware that the activity, such as playing football, involved a certain risk of injury.

Lower courts in parts of New York State, including the appellate court with jurisdiction over Western New York, have previously extended the assumption of risk doctrine to cases not involving sporting or entertainment activities.  In Trupia v. Lake George Central School District, however, an appellate court with jurisdiction over the Albany area declined to extend the assumption of risk doctrine to a case where a child was injured sliding down a stairway banister at the school.  As a result, there is currently a conflict between different parts of the state on how this doctrine is applied.

The decision in Trupia v. Lake George Central School District has been appealed, and in February of 2010, the New York State Court of Appeals will be hearing oral argument on the extent of the assumption of risk doctrine.  The decision of the Court of Appeals will be binding on all lower courts in the state.  As a result, the current differences in how assumption of risk is applied in various parts of New York State will soon be resolved.

There is no set amount, and the percentage may vary by region.  So a personal injury attorney in Buffalo, for example, may request a different percentage than a lawyer in another part of the country, or even in another part of New York State.

In New York State, lawyers’ fees are governed by the New York Rules of Professional Conduct.  In cases where the lawyer earns a percentage of the damages recovered, such as personal injury cases, these rules require that the fee not be “excessive.”  Factors weighed in determining what is excessive include the difficulty of the case, the amount of time the lawyer anticipates spending, any time limitations imposed, the reputation and experience of the lawyers involved, and the fee customarily charged in that geographic region for similar cases.

In the Buffalo area, most local lawyers typically charge of one-third of the amount recovered as their fee, although this may vary depending on the factors described above.  The fee earned by the lawyer is typically determined after any expenses are deducted.  If no money is recovered, the lawyer will not earn any fee.  

Prior to taking your case, your lawyer should enter into a written agreement with you which includes an explanation of how much the lawyer will be paid.  Before hiring an attorney, you should be sure you have a full understanding of how he or she will be compensated.

Motorcyclists in Buffalo should be aware that New York State insurance law does not afford them the same degree of protection that it provides to drivers of cars and trucks.  Drivers and passengers on motorcycles are exempt from the No Fault insurance coverage provided to those in other types of vehicles.

For drivers of other types of vehicles, when they purchase auto insurance they must purchase at least $50,000 in No Fault coverage, which pays for items such as medical expenses and lost wages incurred by the occupants following an accident.  These funds are available regardless of who is at fault for the accident.

Unfortunately for motorcycle enthusiasts, drivers and passengers of motorcycles are exempt from No Fault coverage.  In the case of motorcycle insurance, No Fault coverage only protects a pedestrian struck by a motorcycle.  As a result, motorcyclists must seek other means to pay their medical bills.

While this may be good for insurance companies, it can impose an extreme hardship on motorcyclists who are seriously injured as a result of another driver.  While the other driver may be sued if he or she caused the accident, the money from a lawsuit may not be available for months or even years after the accident.  Meanwhile, the impact of lost wages of medical expenses can be immediate.  If you enjoy motorcycles, please use extra caution when riding.

Unfortunately for those who suffer a traumatic brain injury in Buffalo or elsewhere, this type of injury can be difficult to prove.  Absent a fractured skull or the need for surgery, individuals who suffer this type of injury and sue often find themselves portrayed as having faked their symptoms.

Recently, a New York State appellate court found that an individual who had suffered a traumatic brain injury should be awarded $2,100,000 for past and future pain and suffering.  This amount was lower the $4,600,000 amount awarded by the jury but higher than the $1,600,000 that the verdict had been reduced to by the trial judge.

This substantial award is significant because the injured party, Vincenzo Popolizio, age 56, did not exhibit extreme symptoms of traumatic brain injury such as requiring surgery, suffering a fractured skull or suffering such serious brain damage that he required constant care.  Instead, his symptoms included cognitive function bordering on mental retardation as demonstrated by an IQ test and symptoms of depression.  In other words, he demonstrated the type of brain functioning that individuals who sue are often accused of faking. 

At trial, experts had testified that his cognitive losses and depression would never improve, and coworkers provided testimony that while Mr. Popoloizio had previously been an energetic and personable individual, he now moped around and could not even handle cash transactions.  The jury apparently found this testimony very compelling, and returned a favorable verdict for Mr. Popolizio.

Suppose you are struck by a car in the City of Buffalo and suffer a serious personal injury as a result.  You file a personal injury lawsuit and, before the case is brought to trial, you are told you must attend a deposition. 

A deposition is a hearing where the defendant’s attorney will ask you questions about the accident, your injuries and the impact of the accident on your life.  It is usually not as formal as a court hearing and typically takes place in a conference room at a lawyer’s office, not in court.  You will, however, have to swear to tell the truth before you answer.  Your lawyer will be present to assist you, if necessary. 

In most cases, the defendant in the case will also be deposed and required to answer questions posed by your attorney. 

A deposition serves multiple purposes.  It allows both sides to hear the other party’s version of events and better evaluate the strength and weaknesses of the case.  This, in turn, helps the parties determine whether to try to settle the case prior to trial or proceed to trial. 

Also, if the case does go to trial, your answers, and the defendant’s answers, during the trial can be compared to the deposition testimony to see if there are any inconsistent statements.  Any such statements would then be used against the other party.

When an individual in the City of Buffalo is so badly injured by the conduct or negligence of another person or entity that it results in death, that person’s family is allowed to sue the party responsible under New York State Law.

Wrongful deaths in New York State are addressed under Article 5, Part 4, of the Estate, Powers and Trust Law.  Under this statute, the lawful representative of the deceased individual has the right to sue for damages on behalf of the estate. 

Typically, the amount of damages sought revolves around expenses associated with the death, such as medical and funeral expenses, and loss of income based a projection of how much the deceased individual would likely have earned had he or she lived.  There is, however, no bar to seeking compensation for other damages suffered. 

As a result, wrongful death cases may also include issues such as compensation the pain and suffering of individual prior to death and the pursuit of punitive damages to punish the defendant if the death resulted from reckless or depraved behavior.  Under what theory or theories damages may be sought depends of the specific facts surrounding the individual’s death.

If you are seriously injured in the City of Buffalo and receive Social Security Disability or other financial compensation as a result, it may impact the amount that you receive if you sue the party responsible for your injury and win at trial.

Under New York State law, if you sue and recover money to cover the cost of your medical care, loss of earnings or other economic loss, the other party may then submit evidence to the judge in an attempt to establish that these expenses are covered, in whole or in part, by some other source of funding.  This applies to both past and future expenses. 

If the judge concludes with reasonable certainty that these expenses are covered by another source, he or she is required to then reduce the amount of monetary damages by the amount already covered.  The purpose of this is to ensure that the injured person does not “double-dip” into multiple sources of compensation.  Some sources of compensation, such as life insurance, are excluded from this rule.

While past compensation is usually easy to prove, continued compensation into the future, and how much will be received, may be difficult to prove.  If the judge does not have a reasonable certainty that other sources of compensation will continue into the future, he or she is not required to reduce the amount of monetary damages beyond what the defense has proven to the judge’s satisfaction.

Usually, if a person is seriously injured in the City of Buffalo, he or she would have to prove that the injury was caused, at least in part, by another party’s negligence before they could successfully pursue monetary compensation.  This is not, however, always the case.

 Under some circumstances, a party may be held “strictly liable” for an action or circumstance that caused an injury. In cases of strict liability, an injured person may successfully sue for damages without showing that the other party was actually negligent.  This situation may occur, for example, in cases involving individuals or businesses that keep dangerous animals, store hazardous chemicals or use explosives.

Strict liability may be imposed in these cases because the activity itself is felt to pose an undue risk of harm to other individuals, and anyone involved in the activity does so at his or her own risk and is responsible if someone is harmed.  It may also be applied in cases of injury by a defective product.  In these cases, the injured party may not be required to prove that the defect in the product was the result of any negligence by the manufacturer.  It is only required that the product was defective and caused an injury as a result.

New York State is what is termed a “No-Fault” state, which means that if your are driving an automobile and struck by another car in Buffalo, your medical bills will usually be paid by your own insurance company through the automobile insurance that you purchased.  So what happens if you are not in a car when struck?

If a pedestrian or bicyclist is struck by a car in New York State, his or her medical bills will, at least initially, be paid through the driver’s “No-Fault” automobile insurance policy, not the pedestrian’s policy.  Under certain conditions involving a serious injury, however, an injured pedestrian may also have funds from his or her own automobile insurance, such as Supplementary Uninsured/Underinsured Motorist coverage, available as compensation for injuries.

This additional coverage may be available even though the injured party was not in a car at the time of the accident.  If you are injured by a driver while biking or driving, you should consult an attorney experienced with insurance law to explore possible sources of compensation with you.

A person injured by a defective product may bring a lawsuit to recover damages for that injury.  So, for example, if a person living in the City of Buffalo is badly hurt when using a poorly made piece of lawn equipment, he or she may bring a lawsuit in Erie County Court.

Defective product lawsuits are commonly called product liability cases.  To recover damages in such cases, the injured party usually must establish that the defective product is inherently dangerous as it was designed or manufactured. If this is not the case, then whether the injured party can receive compensation may hinge on whether the maker of the product knew, or had reason to know, that the item was defective.

The injured party must also prove that the defect in the product was the cause of the injury.  In some cases, product liability cases may be brought in the form of class action lawsuits where compensation is sought for a large number of people injured by a defective product.