While not all photographs are admissible in court, it is usually not too difficult to have a photograph admitted as evidence in a civil case.

Generally, a photograph is admissible in court if it fairly and accurately depicts the condition of the area of the accident as it existed at the time of the accident.  To have such a photograph admitted as evidence, it is not even necessary to have the person who took the photograph testify regarding its content.  Instead, all that is needed is for any witness who observed the location at the time of the injury, such as the injured party, to testify that the photo fairly and accurately depicts the location at the time of the accident.

When a photograph is taken shortly after an accident that shows an open and obvious defect that would have existed for a substantial period of time, it may be used in court as proof that the party responsible for maintaining the property should have been aware of the defect.  In this case, there must be testimony that the defect pictured was substantially the same as the one that caused the injury.  Photographs taken long after the injury occurred are not admissible for this purpose.

Medical providers are usually called by the plaintiff to provide testimony confirming that the injuries were caused by the accident, outlining how the injuries relate to the plaintiff’s complaints of pain and suffering, and explaining how much the plaintiff can be expected to suffer in the future.  It is very difficult for plaintiffs to prove their pain and suffering claims, especially regarding future suffering, without such testimony.

In Mr. Barnes’ case, he suffered a broken jaw when the driver of the car he was in lost control of the vehicle.  The court found that the driver was liable before the case was brought to trial, so the only issue presented to the jury was the amount of damages, if any, Mr. Barnes was entitled to receive.

At trial, the plaintiff’s testimony and medical records were used to establish the degree of the injury and the pain he suffered as a result.  Despite the absence of medical testimony, the jury awarded him $100,000 for past pain and suffering and $100,000 for future pain and suffering over the next 25 years.  This award was reduced by half based on the plaintiff’s own contribution to his injury by not wearing a seatbelt.

The defense appealed this award, but the appellate ruled the jury’s conclusions were reasonable and upheld the verdict.  While we generally would not recommend following this path in trying a personal injury case, it is an interesting aberration from the normal course such cases usually take.

First, no one is expected to be able to immediately clear snow and ice from a parking lot, and the law does not require them to do so.  The dangerous condition must have been present long enough that it should have been discovered and corrected for a lawsuit to be successful.  When someone falls while a storm is in progress, he or she may not be able to successfully proceed against anyone because the party responsible for clearing the area did not have time to correct the problem.

When the snow or ice was present long enough to be discovered but it was not removed, who is responsible will depend on any arrangements made between the owner, stores that lease the property, and any third party hired to clear and salt the area.  In the case of plaza parking lots, the owner usually hires a maintenance contractor to clear the area.  As a result, the individual stores would have no responsibility.

In this situation, you may be able to proceed against both the owner and the maintenance contractor.  Whether the maintenance contractor bears any responsibility, however, will depend on the details of the contractual agreement between them and whether that agreement was fulfilled.

If you have been injured in a fall and have any questions, please feel free to call my office at 716-542-5444.  We would be happy to help you.

Under the law, plaintiffs are entitled to payment of all past damages, attorney’s fees, and other expenses associated with the case in a single payment.  If future damages awarded by the jury are less than $250,000, they also are included in this lump sum payment.

When future damages exceed $250,000, these rules change.  The plaintiff still receives the first $250,000 as part of the initial payment, but the remainder is paid off over time.  These payments usually are made in monthly installments.  The formula used to calculate these future payments, however, is somewhat complicated.

Generally, the judge must look at how many years of future damages the jury stated its decision was based on.  The annual payment for the first year is calculated by dividing the remaining future damages by the time specified by the jury.  Annual payments after the first year are calculated by adding 4% to the prior year’s payment.

If damages were awarded for future pain and suffering, this portion of future damages may also be handled differently.  Future damages for pain and suffering must be paid off in no more than ten years.  If the jury based their future damages calculation on a longer time period, future pain and suffering damages will be calculated separately and paid out over a ten year period.

The Court of Appeals, the highest court in New York State, has held that New York insurance carriers have an obligation to provide uninsured motorist coverage when an accident occurs outside of New York State.  In doing so, the court noted that Insurance Law section 5103(e) requires auto insurers to provide coverage “at least in the minimum amount required by the laws of the (other) state.” 

This responsibility to provide coverage at least meeting the minimum amount required by the other state has generally been interpreted in favor of the insured person.  If the other state or Canadian province requires more insurance than the New York State driver has, insurance companies have been required to raise the amount of coverage provided to the level demanded by the laws of the other jurisdiction.  Conversely, if New York State requires more coverage, the insured person is entitled to the full amount of coverage paid for should it be needed.

If you have been in an accident and have any questions regarding your insurance coverage, please feel free to contact my office at 716-542-5444.      

To successfully pursue a claim against a commercial business that serves alcohol, the injured party must be able to prove that the business continued to serve alcohol to the drunk driver when he or she was already visibly intoxicated.  This may require the testimony of eyewitnesses, although in cases of extreme intoxication such testimony may not be necessary.

The right to pursue additional damages against the entity that provided alcohol does not extend, however, to individuals injured by someone who became intoxicated at a private residence.  Private individuals who provide alcohol usually may not be sued if the intoxicated person then chooses to drive.

The major exception to this rule applies to individuals who serve alcohol to minors.  New York State Law does permit claims against a social host who provides — or makes available — alcohol to a minor if that minor later injures someone due to his or her impairment or intoxication.  Under such circumstances, the individual who provided the alcohol may be sued for full compensation of the injuries sustained.

If you suffer an injury and the responsible party is a government entity, you have 60 days to report the claim.  Many parties at all levels of government have some degree of protection from such claims, which may require an injured person to get permission before they can even start to proceed against them. 

If you do not report your claim to the agency you feel is responsible within the 60 day timeframe, your opportunity to proceed against it will be over.  As a result, if you are not sure which agency is responsible, it is best to file a claim with all agencies that may be responsible. 

Once you have reported your claim, the government agency may then either accept or deny it.  If they deny the claim, you then have the option of proceeding in court with a civil claim.

If you do sue, there are many other special regulations that must be complied with.  Again, if you are in this situation you should give strong consideration to finding an experienced attorney to assist you.  If you would like any additional information regarding this topic, please feel free to call my office at 716-542-5444.  We would be happy to help you.

If a dangerous condition is not readily visible but the property owner is aware of it, he or she does have a responsibility to warn those who enter the property of the danger.  On the other hand, if a condition is obvious to anyone employing the reasonable use of his or her senses, no warning may be necessary.

The fact that a dangerous condition is obvious, however, does not always mean that the property owner has no responsibility and cannot be sued.  When a condition is obvious but still not reasonably safe, the property owner may have some liability if someone is injured by it.  The property owner still has some responsibility to maintain the property in a safe condition.  In this situation, the amount awarded in damages may be reduced based on the degree of the injured party’s own responsibility for failing to avoid an obvious danger.

In some cases, the property owner may claim that the condition, such as a loose board, was a “latent defect.”  A latent defect is a dangerous condition that is not readily observable.  Because the condition is not easily seen, it is very difficult to prove that a property owner knew or should have known of its existence.

In such cases, the parties will usually argue about whether a reasonable inspection would have led to discovery of the dangerous condition.  In the case of latent defects, it is often held that because the condition was not readily apparent, a routine inspection of the property would not have led to its discovery.  As a result, the injured person cannot rely on proof that the owner should have known of the defect.  Instead, he or she must have evidence that the owner had actually found the problem and failed to correct it to successfully sue.

If you have been injured on someone’s property and have any questions, please feel free to call my office at 716-542-5444.

You have an absolute right to change the attorney who is handling your personal injury case at any time.  Such a decision, however, should not be undertaken lightly.  If you are concerned about how your case is being handled, you should bring this to the attention of your attorney before considering any changes.  Usually, your attorney will be able to address your concerns and continue with your case.

If you do feel compelled to change attorneys, you should be aware that the fee charged will not change in a personal injury case.  While both attorneys are entitled to some compensation, it is their responsibility to arrange how they will split the percentage of any recovery originally agreed to by you.

If you have any questions about how changing attorneys may impact your case, please feel free to call my office at 716-542-5444.