If an uninvited person is injured while on another’s property in the City of Buffalo, New York State Law does allow that person to pursue a personal injury lawsuit.  There are several factors, however, that distinguish such a case from a normal injury on property.

Until the mid-1970s, the duty of care owed by a landowner in personal injury cases varied with the reason the injured party was on the property.  As a result, a landowner had less responsibility toward a trespasser than, for example, a guest or employee.  Because this multi-level system was found to be unduly complicated, it has been changed so that the duty of care is the same for all plaintiffs regardless of why they were on the property.

The current standard is that a landowner must act as a reasonably prudent person in maintaining his or her property in view of all the circumstances.  This single standard, however, does not make it as easy for a trespasser to successfully sue as a guest.

This is because when determining whether the landowner acted as a reasonably prudent person, the judge or jury must consider circumstances such as the foreseeability of the injured person being on the property and his or her burden in avoiding the risk of injury.  In the case of unforeseen trespassers on the property, these factors tend to favor the landowner.

If you have been suffered an injury on someone’s property and have any questions regarding your legal rights, please feel free to call my office at 716-542-5444.

The courts in Buffalo can be very busy places.  Because of court congestion, the government has taken steps to ensure that only cases worthy of trial actually go to trial.   

With personal injury cases, one way of making sure that only cases involving legitimate issues go to trial is to let both sides see most of the evidence prior to going to court.  Once your case has been officially filed with the court, it will enter into what is usually called the “discovery” phase.”  At this time, both sides will request information from the other party to see how strong the case is.

Items typically requested include medical records, employment records, insurance information, photographs of the accident scene and injuries, and the names and addresses of any witnesses.  Your lawyer will also be asked to clarify what injuries you suffered and provide information regarding how the accident occurred.  In addition to providing information to the defense, your lawyer will request information from them that is relevant to how to accident occurred.

If one party requests information that the other party does not believe it needs to provide, the court may be asked to intervene.  When this occurs, the court will schedule a conference to determine whether the requested information is necessary for the case.  If it is found necessary, the court will then order the disclosure of this information to the other party.

Allowing both parties to see as much of the evidence as possible may allow them to better evaluate the quality of the case and possibility reach an agreement on its value prior to trial.

When a person is injured on property owned by the City of Buffalo, the injured party may pursue monetary compensation from the city itself or one of the public departments operating within Buffalo.  When pursuing a case against a municipality, New York State has specific laws requiring that a Notice of Claim be submitted to the public agency or its legal representative.

A proper Notice of Claim which includes the date, time, location and details of the accident must be submitted within 90 days of the accident.  If it is not filed within 90 days, the claim may be denied by the public agency, and the case may be dismissed by the court.  As a result, if you are injured on public property or as the result of the negligence of a public employee, you should take immediate steps to insure your right to pursue a personal injury claim is protected.

In some cases, courts will allow a Notice of Claim to be filed outside the 90 day timeframe.  Exceptions have been made for infants and people with documented physical and mental disabilities.  Also, courts have occasionally granted leniency to the injured party where the public agency did not suffer any prejudice due to the delay. 

You should not, however, rely on the leniency of the court if you are in this situation.  If you have been injured and have any questions regarding whether you should file a Notice of Claim, please feel free to call me at 716-542-5444.

When a personal injury accident occurs in Buffalo, there are several things that the injured person must be able to prove to successfully sue.  One of those things is that the actions of the party being sued were a “proximate cause” of the injuries suffered.

An act, or failure to act, may be considered a proximate cause of an injury if it was a substantial factor in bringing about the injury.  The standard often used when a judge or jury considers this issue is whether a “reasonable person” would consider the act a cause of the injury.  If the judge or jury believes a reasonable person would reach this conclusion, then they must find that the act was a proximate cause of the injury.

Just because an act is found to be a proximate cause of an injury, it does not have to be the only cause.  More than one act can be found to have been a cause of an accident.  The injured party, however, must be able to prove what acts caused an accident.  He or she cannot, for example, sue after having slipped and fallen at a specific location without being able to establish what caused the slip.

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

All drivers in the City of Buffalo and across New York State are required to carry automobile insurance.  When you sue the other driver involved following a car accident, your personal injury attorney will usually request a copy of the declarations page from your car insurance.  This page outlines the coverage that you have under your own automobile insurance policy.

There are many reasons your personal injury attorney will want to look at your car insurance.  In some cases, you may have purchased coverage that is available to you to protect you against uninsured or underinsured drivers.  If this occurs, your attorney will wish to take steps to protect your rights to pursue this additional coverage. 

Also, under specific circumstances, your insurance company may have a right to seek recovery of money it paid out for medical and unemployment expenses following your injury.  For example, under New York State Law your auto insurance company must pay you up to $2,000 per month in lost wages if you cannot work following a car accident.  If you have purchased Additional Personal Injury Protection (APIP), your insurance company may pay you additional lost wages in excess of the $2,000 limit required by law. 

These additional lost wages, however, may be recovered by your insurer as part of any damages you receive from the other driver.  In this situation, your lawyer will want to be aware of the potential impact of any claim on the damages you receive and make sure you fulfill all of your legal responsibilities to your insurer following an automobile accident.

Parents in Buffalo should be aware that the U.S. Consumer Product Safety Commission and Baby Matters LLC, of Berwyn, Pa., have issued a voluntary recall of an apparently dangerous product.  30,000 Nap Nanny® portable baby recliners sold between January 2009 and July 2010 have been recalled.  These items were sold in retail stores nationwide and online, including at www.napnanny.com. 

This recall follows a report of a four month old girl who died in a Nap Nanny® being used in a crib.  Preliminary reports indicate that she was found in her harness hanging over the side of the product, where she had become caught between the Nap Nanny® and the crib bumper.  Use of the product in a crib is against the product’s instructions.

CPSC and Baby Matters have received 22 reports of infants hanging or falling over the side of the product even though most of the infants were in the harness.  Infants can partially fall out or hang over the side of the Nap Nanny® even while the harness is in use.

More information can be found at www.cpsc.gov/cpscpub/prerel/prhtml10/10309.html.  The company’s recall hotline is (800) 638-2772.

If you have purchased this item, please discontinue using it immediately.  If you have lost a family member as a result of a dangerous product and wish to discuss your legal rights following a wrongful death, please feel free to call my office at 716-542-5444.  We would be happy to help you.

When a Buffalo resident suffers a personal injury in a car accident, whether that person can pursue a personal injury claim is governed by New York State’s No-Fault Law.  Under this system, the injured party must have suffered a “serious injury” before a personal injury case may be pursued.

The law defining what constitutes a serious injury was written many years ago, and there have been great advances in medicine since then.  As a result, the New York State legislature is in the preliminary stages of considering the addition of new categories to the legal definition of serious injury.

While the current definition of serious injury includes some clearly objective injuries such as dismemberment or fractures, it also includes much more vague definitions, such as “permanent consequential limitation” and “significant limitation.”  While the proposed changes do not eliminate these vague categories, they do add several new, more objective categories to the definitions.

These changes were deemed necessary by the sponsors of the bill because the current system often leads to seemingly unfair situations.  For example, a person with a broken toe may, by law, pursue a serious injury claim because he or she suffered a fracture.  In contrast, a person who has suffered several torn knee ligaments must prove that this injury fits within one of the more vague categories of serious injury, or the case may be dismissed.

The proposed new categories largely consist of injuries that were not easily detectible when the original law was written, but now are much more easily diagnosed by doctors.  The proposed new categories are:

• a partial or complete tear or impingement of a nerve, tendon, ligament, muscle or  cartilage;
• injury to any part of the spinal column that results in injury to an intervertebral disc;
• impingement of the spinal cord, spinal canal, nerve, tendon or muscle;
• surgery.

This bill is still in the very early stages of the legislative process and, if it survives at all, is likely to be modified before being passed.

Buffalo residents who have been involved in personal injury lawsuits may have heard the term “joint and several liability.”  Joint and several liability applies in many cases where more than one defendant is found responsible for causing an injury.  It refers to the terms under which the responsible parties must pay damages for the injury.

In New York State cases involving joint and several liability, the injured party may collect the full amount of any economic damages from any party found liable until the entire judgment is paid in full.  There is no requirement that the responsible parties pay an equal – or even a fair – share.  As a result, if one of the responsible parties does not have enough assets to pay its share of the award, the other defendants must make up the difference.

Joint and several liability only applies to economic damages, such as medical expenses and lost wages.  For non-economic damages (such as pain and suffering), a defendant who is found less than 50% liable is only required to pay that percentage of non-economic damages for which he or she was found responsible.

There are several exceptions where joint and several liability does not apply.  If you have any further questions regarding this subject, you should consult an experienced personal injury attorney.

Nearly all Buffalo personal injury attorneys have been involved in situations where an insurance company tried to deny coverage following a personal injury accident.  Sometimes this occurs early in a case, and the insurance company attempts to avoid involvement in the whole process.  Fortunately, New York State law addresses when an insurance company may refuse to defend an insured person in a personal injury lawsuit.

Whether an insurance company is required to defend an individual accused of causing a personal injury is determined by comparing the allegations in the complaint with the terms of the insurance agreement.  It does not matter if the insurance company believes the allegations to be untrue or frivolous, nor does it matter if it is ultimately determined that the defendant owes nothing.  If the allegations fall under the terms of the insurance contract, the insurance company must defend the insured person. 

Moreover, the New York State Court of Appeals has ruled that even if the allegations in the complaint do not fall under the insurance contract, but the insurance company has actual knowledge of facts establishing a reasonable possibility of coverage, it still must defend the insured person. 

Finally, any ambiguous language in an insurance policy must be interpreted in favor of the insured, not the insurance company.

If you have suffered a personal injury and have any questions regarding insurance coverage, please feel free to call my office at 716-542-5444.

When a person is injured as a result of a defective condition on a public sidewalk, who they can proceed against to recover monetary damages will depend on where they are New York State.  This is because who is responsible for maintaining a public sidewalk depends upon the laws of the municipality (for example, the local ordinances of the City of Buffalo) where the injury occurred. 

If there is no local ordinance regarding who is responsible for maintenance of public sidewalks, then the municipality is responsible for ensuring that sidewalks are properly maintained.  In this situation, the municipality may be sued when an injury occurs on a defective sidewalk.

When there is a local ordinance in place requiring property owners to maintain the public sidewalks abutting their property, who is liable becomes a little more difficult to determine.  If the ordinance merely states that the property owner is responsible for maintaining the sidewalk, this is not enough for the property owner to be held liable should a personal injury occur.  Instead, the ordinance must specifically state that if the property owner fails to maintain the sidewalk, he or she is subject to liability should an injury occur.

A property owner may also be liable under certain other circumstances, such as having created the defective condition of the sidewalk that led to the injury.  If you have suffered an injury in a fall and have questions about what to do, please feel free to call my office 716-542-5444.  We would be happy to help you.