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.

Many Buffalo personal injury lawsuits involve situations where a person is responding to an unexpected situation and causes injury.  This can occur, for example, where a car veers into the other lane, causing a driver in that lane to swerve and strike a third car or a pedestrian.  Under this scenario, the driver who swerved may be found not responsible for the accident because he or she was responding to an emergency situation.  This is not, however, required by law.

Even where an emergency situation exists, the person responding to the emergency situation must still establish that he or she responded to the emergency as a reasonably prudent person would.  The standard of what constitutes a “reasonable” response may be lowered based on issues such a lack of time to decide on what action to take.

In the scenario of the veering car set forth above, the actions of the driver of the second car would have to be scrutinized to determine if negligence was supported.  If, for example, it were established that the driver of the second car would have had additional time to react to the car veering into the lane, but he or she was not paying adequate attention to what was there to be seen, he or she may still be found negligent. 

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

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.

When a Buffalo resident suffers a personal injury in a motor vehicle accident, he or she is required to meet the “serious injury” threshold before damages may be recovered.  Briefly put, the purpose of the “serious injury” threshold is to weed out cases involving only minor injuries.  New York State law sets forth several categories of serious injury that define when an injury qualifies.

Recently, the highest court in New York State, the Court of Appeals, issued a ruling addressing three separate cases involving serious injury:  Perl v. Meher, Adler v. Bayer and Moonan v. Batchi.  The rulings in these cases provide the lower courts with additional guidance regarding when an injury qualifies as a serious injury.
While the cases addressed several issues related to the serious injury threshold, perhaps the most important issue involved the handling of pre-existing conditions.  This is an issue when, for example, an older plaintiff has signs of arthritis in the neck but suffers additional injury to the neck following the motor vehicle collision.  The defense frequently argues in such cases that the entire injury is pre-existing and, therefore, the judge should dismiss the case because there is no proof of serious injury.

The Court of Appeals found that in such cases, whether the condition was pre-existing or caused by the accident is a question of fact that should generally be left to the jury’s decision.  So long as both sides present competent medical proof regarding their position, the judge should allow the jury to make the decision instead of dismissing the personal injury lawsuit.

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.

As experienced Buffalo personal injury attorneys, we have seen the damage caused when tractor-trailers and other commercial vehicles are involved in motor vehicle collisions.  Because of the strong potential for catastrophic personal injury or death in these types of accidents, the drivers of these types of large vehicles have been subject to additional regulation for years.  Recently, the Federal Motor Carrier Safety Administration (FMCSA) released new regulations further limiting the number of hours commercial truck drivers may work based on growing concerns of driver fatigue.

Given the distances many commercial truck drivers are expected to cover and the pressure to make timely deliveries, truck drivers’ work hours have been strictly regulated.  Based on recent studies regarding the effects of driver fatigue and how long an individual may drive before fatigue sets in, the FMCSA determined that reduced weekly work hours and mandated additional rest time was necessary for safety.

Significant changes include a reduction in the maximum number of hours a commercial truck driver may work in a seven-day period from 82 hours to 70 hours, and a requirement barring truck drivers from driving after working more than eight continuous hours unless they take at least a 30 minute break.

It was anticipated that the FMCSA also would be reducing the maximum number of driving hours per day from 11 to 10.  While the organization has declined to do so, it has stated an intent to continue analyzing data and researching this issue to determine if a reduction is warranted.  Commercial truck drivers and trucking companies must comply with these new regulations by July 1, 2013.

When releasing these new regulations, the Department of Transportation confirmed that the primary focus was on reducing driver fatigue and preventing truck accidents caused by fatigue.  In an effort to give the regulations additional force and reduce personal injuries and deaths caused by truck accidents, the fines for violating the provisions have also been significantly increased.

It is no surprise that the percentage of Buffalo personal injury auto accidents that may be attributable to distracted driving seems to have increased as cell phones and texting have become prevalent.  Recently, National Highway Traffic Safety Administration (NHTSA) Administrator David Strickland noted that the biggest challenge his agency faces is finding the right balance between new technologies that make it easier for drivers to report serious accidents – potentially saving lives – and the potential for the very same technology to distract drivers and cause personal injury accidents.

Automakers have increasingly incorporated new communications technology into their vehicles that can be helpful in obtaining help during an emergency.  Unfortunately, many of these devices and systems rely upon cell phones or other electronic technology that has been established to lead to accidents by distracting drivers. 
Mr. Strickland noted that 90 percent of motor vehicle accidents are the fault of drivers, and that the NHTSA is concerned over the number of motor vehicle deaths that are caused by distracted driving.  He also discussed the issue of texting and driving.  Currently, many states and cities, including New York State, ban texting while driving.  There is, however, no NHTSA guideline in place.  Mr. Strickland indicated that they are working with automakers and cellular phone companies to determine the appropriate standard.

Overall, he expressed a hope that once the distracted driving issues are resolved, these technologies could be used to help reduce the serious personal injury and death caused by motor vehicle accidents.