When responding to a Complaint in a Buffalo personal injury lawsuit, the defense will almost always set forth in its Answer a number of defenses that the defense attorney believes may be relevant to the lawsuit.  There are a variety of issues that may be raised in defense, and what the exact defenses will be varies from case to case.  As the lawsuit progresses and information is exchanged by the parties, it may be found that some of these defenses do not apply.

When this happens, the injured party will want to avoid having such defenses submitted for the jury’s consideration.  In some cases, the defendant may simply agree to withdraw a defense if it realizes it has no merit.  If the defendant chooses not to do so, the injured party has the right to make a motion requesting that the defense in question be struck.

This motion usually will be presented to the judge who will oversee the personal injury trial.  Under these circumstances, the burden in on the plaintiff to prove that there is no legal or factual support for the defense in question.  If this can be proven to the judge, the judge may strike the defense.

If you have suffered a personal injury, we would be happy to help you.  Please call us at 716-542-5444.

All Buffalo personal injury lawsuits are “officially” begun by the filing of a Summons and Complaint.  This document informs the defendant that a lawsuit has been filed with the court and provides a brief summary of the facts supporting the lawsuit.

After receiving the Summons and Complaint, a defendant is required to provide the plaintiff with an Answer.  In almost all cases, the Answer will consist of a written document containing responses to the allegations in the Complaint.  While the specific content of the Answer will vary from case to case, Answers are usually divided into two parts.

The first part of the Answer usually sets forth the defendant’s position on each paragraph of the Complaint.  The defendant may admit to the allegations set forth in a paragraph – confirming that the information in that paragraph is not in dispute, deny the allegations in a paragraph, or simply state that he or she does not have sufficient information to admit or deny the contents of a given paragraph.

The second part of an Answer usually consists of various defenses that the defendant is asserting in response to the allegations.  These defenses will not contain specific details and may consist of issues ranging from lack of jurisdiction to claiming the accident was the plaintiff’s fault.  The details regarding these defenses may be developed as the case progresses.  The defense frequently raises a variety of issues – some of which ultimately may not apply – to avoid being barred from raising the defense later in the personal injury lawsuit if it proves relevant.

Buffalo homeowners who allow children – or even older teens – to use a trampoline should be aware that any injury suffered as a result may give rise to liability.  This fact was well-demonstrated in the recent ruling of the Nassau County Supreme Court in Hallwood v. Daniels, 15462/09.

In that case, a 14 year old boy was playing on a trampoline at a friend’s house with three of his friends.  The mother of one of the boys was at home but apparently not observing their activities.  They decided to climb onto the roof of a nearby one story garage and jump onto to the trampoline from there.  Two of the boys had done this before, but the plaintiff had not.  The boys told the plaintiff he did not have to jump if he did not want to, but he insisted.

Upon hitting the trampoline, the plaintiff’s knee struck his jaw.  He ultimately required two crowns and teeth implants.  Years later, he continues to suffer from headaches.

The owners of the trampoline sought to have the case dismissed by the court based on a theory that the teen was old enough and smart enough to be aware of the risk of his actions, but chose to proceed anyway.  The court, however, declined to dismiss the case under these circumstances. 

This decision was based on judge’s finding that “the combination of the defendants being at home when the incident occurred and the close proximity of the trampoline to the one-story garage and ladder and/or low fence may have created a zone of apparent danger for which a jury may find the defendants to be liable.”

As a result, sufficient questions of fact existed for the case to be heard by a jury.

While many people think of the sidewalks running through residential neighborhoods as “public sidewalks,” experienced Buffalo personal injury attorneys know that these sidewalks often are not the responsibility of any public entity.  This can be especially important when determining who is responsible for an injury suffered as a result of falling on a poorly maintained sidewalk.

In many municipalities, the sidewalks running through residential neighborhoods are the responsibility of the landowner, not the local government.  The duty to maintain the sidewalk is delegated to the owner of the property through which that section of sidewalk runs, and – if an injury occurs as a result of poor maintenance – it is the landowner, not the municipality, that is sued.  While this may seem unfair, in New York State a municipality may delegate responsibility for the sidewalk by passing a local law doing so.
If you have been injured as a result of falling on a sidewalk, your personal injury attorney will need to look into the local ordinance regarding sidewalks and examine exactly how the law is worded to determine who to proceed against.

If you have fallen on a poorly maintained sidewalk, we would be happy to help you.  Please call us at 716-542-5444 with any questions.

Unlike nearly every other state in the United States, the New York State courts have determined that to succeed in a personal injury lawsuit, a person injured by a dog must prove that the owner of the dog knew it had “vicious propensities” prior to the event leading to injury.  As a result, a Buffalo citizen injured by a dog is faced with the difficult task of trying to find evidence of what the dog owner knew.

This can be especially difficult if a person is attacked by a strange dog.  While the owner will be routinely asked if the dog had ever displayed vicious propensities, it will be the rare owner who actually admits that they knew their dog had a tendency to bite, growl, act aggressively or engage in dangerous behavior, but they did nothing about it.  Many cases have been dismissed because the owner – truthfully or untruthfully – simply denied knowledge of any aggressive behavior, and there was no way to prove what they knew.

In this situation, the injured party usually is placed in the position of hiring an investigator to speak with the owner’s neighbors to obtain any leads regarding the dog’s prior behavior.  Of course, under New York State law it is not enough to prove that the dog had previously acted in a vicious manner, it must also be proven that the owner knew about it.  As a result, it is not enough for a neighbor or other witness to merely state their observations of the dog.  Ultimately, a witness must be found who can confirm that the owner either saw such behavior or was spoken to about it to support a dog bit lawsuit.

Occasionally, the defendant or potential defendant in a Buffalo personal injury lawsuit passes away before the lawsuit is brought to a conclusion.  This most commonly occurs in car accidents where the driver who caused the injury is killed in the collision.

The death of a defendant does not bar an injured party from pursuing a personal injury lawsuit, but it can complicate matters slightly.  For example, to initiate a lawsuit, the suing party must serve a complaint upon the defendant.  If the defendant has passed away, this usually means that the representative of the defendant’s estate must be served.  When the defendant has no estate, steps may need to be taken to have an estate opened for the sole purpose of defending the estate in the personal injury lawsuit.

Because of the complications involved, an experienced attorney should be consulted when proceeding against the estate of a deceased individual.  Our firm has years of experience in both personal injury and estate work.  If you have any questions on this topic, please feel free to call us at 716-542-5444.

Occasionally, the defendant or potential defendant in a Buffalo personal injury lawsuit passes away before the lawsuit is brought to a conclusion.  This most commonly occurs in car accidents where the driver who caused the injury is killed in the collision.

The death of a defendant does not bar an injured party from pursuing a personal injury lawsuit, but it can complicate matters slightly.  For example, to initiate a lawsuit, the suing party must serve a summons upon the defendant.  If the defendant has passed away, this usually means that the representative of the defendant’s estate must be served.  When the defendant has no estate, steps may need to be taken to have an estate opened for the sole purpose of defending the estate in the personal injury lawsuit.

Because of the complications involved, an experienced attorney should be consulted when proceeding against the estate of a deceased individual.  Our firm has years of experience in both personal injury and estate work.  If you have any questions on this topic, please feel free to call us at 716-542-5444.

One of the most vulnerable groups of Buffalo citizens resides in nursing homes.  Placing a parent or grandparent in a nursing home is a very difficult decision, and we all want to make sure the elderly are well cared for when necessity requires they move into such a facility.  While it is difficult to obtain hard data on the frequency of abuse or neglect of nursing home residents, the numbers that are available are sobering.

Studies have shown that some form of resident abuse occurs in more than 30% of all nursing homes in the United States.  It is difficult, however, to come up with an exact figure for two reasons.  The first is that nursing home abuse and neglect can cover a wide variety of issues ranging from failure to properly supervise medication or allowing bed sores to fester to actual physical or sexual abuse of the resident by staff or by other residents.  As a result, it can be difficult in some cases to categorize what actions constitute abuse or neglect for purposes of measuring the extent of the problem.

The second is that most cases of nursing home abuse or neglect simply go unreported.  Experts estimate that for every one case reported, five more go unreported.  Of the cases that are reported, many are never actually brought to the attention of public authorities.   

Approximately five percent of senior citizens in the United States reside in nursing homes, half of whom are over the age of 85.  Many of these residents are extremely vulnerable to being abused or otherwise exploited.  If you suspect a nursing home resident has suffered abuse or neglect, do not be afraid to report it.

Nearly all Buffalo personal injury lawsuits are heard before a justice of the New York State Supreme Court of Erie County.  When that judge makes a legal decision that one of the parties does not agree with, that decision may, occasionally, be appealed to a higher court.

Almost all appeals in Western New York are heard by a court known as the Appellate Division for the Fourth Department, which is located in Rochester.  This court will review the record regarding the underlying issue and determine whether the lower court acted properly or made a mistake.  In most cases, the decision of the lower court is upheld, but occasionally a lower court decision is overturned based on an error.

But what happens if you disagree with the decision of the Appellate Division?  There is one higher court in New York State – the Court of Appeals – which can hear arguments regarding decisions of the Appellate Division court.  There are, however, several specific limitations regarding when an Appellate Division decision may be taken to the Court of Appeals.  The purpose of these limitations is to keep the Court of Appeals from becoming bogged down with frivolous appeals on issues that have no merit.

As a result, while you may be able to make an additional appeal in a personal injury lawsuit, this is not a guaranteed right, and whether you may do so depends on the specific circumstances surrounding the issue.  

When a Buffalo personal injury lawsuit involves negligent conduct by a New York State employee, whether the State may be held responsible hinges upon the specific facts and circumstances of the lawsuit.  In some cases, the State may be immune from liability for the actions of an employee.  In others, damages may be pursued against the State.

One circumstance under which damages may be pursued against the State involves State run medical or residential facilities.  For individuals under the care of such a facility operated by the State, the State is required to exercise reasonable care to protect such patients and residents from being harmed.  The degree of care that must be exercised by the staff is determined by the capacity of the patient or resident to provide for his or her own safety, based on his or her physical and mental ailments as known to the employees at the facility. 

When an employee knows, for example, that a certain level of supervision of a patient is necessary but fails to provide it, the State may be held liable for that employees failure in a personal injury lawsuit.

If you or a loved one has suffered a personal injury, we would be happy to help you.  Please feel free to call us at 716-542-5444.