Syracuse Personal Injury Law Blog

Comparative negligence in pedestrian, cycling accident cases

Published on: June 21, 2016 | By Jeff DeFrancisco

In our last couple posts, we looked at a recent spate of pedestrian and cyclist deaths in New York City, noting that three of the four accidents were hit-and-run incidents. As we pointed out, pedestrians and cyclists have rights and should not assume that they have no possibility of recovering damages after an accident, despite the occasional bias they may encounter with law enforcement.

That being said, pedestrians and cyclists should be aware that, in seeking compensation for damages caused by a negligent motorist, they may themselves be subjected to allegations of negligence. This can occur when the pedestrian or cyclist may have taken some sort of unsafe action that ended up contributing to the accident. This is known as the doctrine of comparative negligence.

A fair number of states recognize some form of comparative negligence. The basic idea is that a plaintiff may have his or her damages reduced in proportion to his or her degree of fault for the injuries. Under New York’s comparative negligence law, an injured party may recover damages in cases where he or she is deemed to have been negligent, even if the individual is 99 percent at fault. This is known as pure comparative fault. In other states, a plaintiff may only have the ability to recover damages if he or he is less than 50 percent of 51 percent at fault.

Recent NYC deaths showcase the dangers for pedestrians, cyclists on roadway, P.2

Published on: June 20, 2016 | By Jeff DeFrancisco

Last time, we mentioned a spate of pedestrian and cyclist accident in New York City, pointing out that three of the four accidents were hit-and-run incidents. As we noted last time, pedestrians and cyclists sometimes face challenges with the criminal justice system in having accidents fairly investigated.

In some cases, law enforcement officers have been known to make incorrect assumptions about fault when investigating an accident. When offices are afflicted with bias against cyclists, and sometimes pedestrians, to it can translate into a failure to cite an at-fault party for a violation or failure to take more widespread action to address unsafe driving practices that put pedestrians and cyclists at risk.

Cyclists, in particular, face a fair amount of mistreatment and bias from motorists and law enforcement. Part of the problem, of course, is that some cyclists habitually and blatantly violate basic traffic laws. Running red lights and stop signs, failing to move to the shoulder of the road when it is safe and possible to do so, failing to alert motorists about turns, and so on. When a cyclist violates traffic rules, it is fairly obvious and has a way of generating anger among motorists.

Recent NYC deaths showcase the dangers for pedestrians, cyclists on roadway

Published on: June 18, 2016 | By Jeff DeFrancisco

Four individuals were killed by motorists in New York City last weekend, a powerful reminder of the serious risks pedestrians and cyclists face on the road and of the need to continue to improve roadway safety for pedestrians and cyclists.

One of the victims was a pedestrian, while two were cyclists. Sources weren’t clear about the fourth victim, but did say that three of the crashes were hit-and-runs. Hit-and-run, of course, is a serious crime, not only because it puts an accident victim at increased risk of fatality, but also because it represents a failure to take responsibility for harm done to another human being.

Neither were sources clear about the circumstances of all the crashes, though at least one of the crashes occurred while the victim had the right of way. Different cities have different local laws, but New York City’s Right of Way Law imposes punishments on motorists who harm pedestrians and cyclists who are abiding by all traffic regulations at the time of the accident. Cab drivers, under another law, can have their license revoked for killing walkers or bikers who have the right of way. As some commentators have pointed out, though, these laws are not consistently enforced or pursued by prosecutors.

Seeking recovery against federal health care providers: an overview of the FTCA, P.2

Published on: June 17, 2016 | By Jeff DeFrancisco

Last time, we began looking at the Federal Tort Claims Act, under which those harmed by federal health care providers may seek recovery from the federal government. Under the FTCA, the federal government may be held liable in the same way, and to the same extent, as a private hospital or health care provider would be liable.

One difference, though, is that the FTCA does not allow plaintiffs to obtain punitive damages. For those who aren’t familiar with them, punitive damages are not intended to compensate the plaintiff but rather to punish the defendant in a civil context. The damages available to plaintiffs in FTCA claims are limited to compensatory damages, which are the monetary losses stemming from the negligence asserted.

Another difference is that the federal government is allowed to assert defenses based on immunity that are otherwise available to federal employees, as well as other defenses unique to the federal government. While the FTCA is considered a general waiver of the defense of sovereign immunity, there are some circumstances where a plaintiff may not be entitled to recover damages due to immunity.

Seeking recovery against federal health care providers: an overview of the FTCA, P.1

Published on: June 16, 2016 | By Jeff DeFrancisco

In our previous post, we looked at the VA’s recent admission that it failed to provide qualified professionals to conduct proper screening for traumatic brain injury on thousands of patients. As we noted, such a failure would ordinarily be considered grounds for liability were it not for the fact that medical professionals working for a government institution are immune from personal liability for negligence.

Under the Federal Tort Claims Act, federally supported health centers, their employees and eligible contractors are considered immune from lawsuits and the Federal government acts as their insurer. This means that those who are treated at health centers funded by the Health Center Program are unable to sue individual physicians and staff members, or the institutions, for medical malpractice or medical negligence.

Immunity only applies, though, when the employees are acting within the scope of their employment. The scope of employment rule would exclude actions taken by federal health care employees which are clearly not part of their job duties. Typically, though, this will not be a major issue in FTCA litigation.

VA admits failure to provide qualified professionals for TBI screening

Published on: June 15, 2016 | By Jeff DeFrancisco

Traumatic brain injury can have a variety of serious effects for those who suffer from it. It is estimated that around 30 percent of injury-related deaths are caused by traumatic brain injury. This is why it is so important for those who may have suffered a traumatic brain injury to be checked out by a competent physician and promptly treated.

Traumatic brain injury occurs because of a blow to the head which disrupts the ordinary functioning of the brain, and is very common among veterans who served in Afghanistan and Iraq. Unfortunately, the Department of Veterans Affairs doesn’t always offer the quality of care vets need to address head injuries.

For example, the VA recently came out and acknowledged that around 24,000 veterans were not properly treated for traumatic brain injuries between 2007 and 2015. According to a letter sent out to VA patients, VA hospital staff failed to conduct adequate initial examinations for traumatic brain injury on thousands of veterans. Specifically, qualified specialists were not provided to review vets’ condition and patients may not have been properly diagnosed as a result.

Seeking damages for brain injury after motor vehicle accident, P.4

Published on: June 14, 2016 | By Jeff DeFrancisco

Last time, we left off discussing the topic of punitive damages. As we noted, the goal of building a damages case is to maximize the plaintiff’s damages, and this requires carefully establishing entitlement to all damages the plaintiff is seeking, including punitive damages.

Entitlement to punitive damages is, in some ways, even more important to establish because it is ordinarily more difficult to do so compared to compensatory damages. For one thing, punitive damage are only potentially awarded in cases where there is gross misconduct, want or willful fraud, dishonesty, or malice. The idea is that the plaintiff’s behavior was marked by significant moral failing.

Because entitlement to punitive damages is typically based on proving either intention to harm or engage in negligence, it is not an easy avenue for recovery. Although entitlement to punitive damages is not easy to establish, punitive damages may still be awarded in cases where a plaintiff suffers only minimal damage. In other words, there is no requirement that a plaintiff must be awarded a certain amount of compensatory damages before entitlement to punitive damages kicks in.

Seeking damages for brain injury after motor vehicle accident, P.3

Published on: June 13, 2016 | By Jeff DeFrancisco

We’ve been discussing in recent posts the topic of brain and spinal cord injury, and the importance of working with an experienced attorney to accurately establish damages at trial. Maximizing damages, of course, is probably the most important aim of litigation in most cases, so it is really important to build a strong case in this area.

Damages vary according to type and the grounds for entitlement, and an experienced attorney knows the importance of establishing the correct theory for the type of damages sought. Compensatory damages, whether economic or non-economic, require a clear showing of the costs—both actual and projected—of a brain or spinal cord injury.

In establishing entitlement to compensatory damages in brain and spinal cord injury cases, particularly the projected costs, it may be necessary to secure the services of a damages expert. An expert will be able to provide technical and scientific insight and testimony for the jury in formulating a damages award. This includes information about the plaintiff’s prognosis for recovery, the long-term effects of the injury, and the long-term costs associated with the injury.

Seeking damages for brain injury after motor vehicle accident, P.2

Published on: June 10, 2016 | By Jeff DeFrancisco

In our last post, we began looking at the topic of brain and spinal cord injury, the effects of such injuries on a motor vehicle accident victim’s life and the costs involved with such injuries. As we noted, new and sometimes experimental treatments are emerging which hold out the hope of improving and accelerating recovery for brain and spinal cord injury victims, but these treatments are not available to many and can be costly.

All of this has relevance to the issue of damages in personal injury litigation, because one of the goals of damages is to compensate the accident victim for the costs of the injury the defendant caused. Compensatory damages come in two basic types: economic and non-economic. Economic damages are awarded for things like medical costs, lost wages, loss of future earning capacity, and losses that can be easily monetized.

Non-economic damages, on the other hand, are awarded for losses and injuries that are more difficult to measure, such as pain and suffering, loss of enjoyment of life, and such injuries. Non-economic damages can be an important avenue of recovery for accident victims, particularly when unique circumstances result in an economic damages award that doesn’t adequately compensate the victim for his or her injuries.

Seeking damages for brain injury after motor vehicle accident, P.1

Published on: June 9, 2016 | By Jeff DeFrancisco

In motor vehicle accidents, physical injuries can be devastating if not deadly, particularly when there is damage to the brain and/or spinal cord. Damage to the central nervous system can have a profound effect on an accident victim’s life, impacting his or her ability to work, recreate, maintain relationships with family and friends, and generally enjoy life.

For patients who have suffered serious spinal cord injury, treatment and care may be ongoing for the remainder of their lives. Treatment and care is not only expensive, but taxing on family members who may serve as caregivers. Fortunately, scientific advances do offer some hope to spinal cord injury victims, hope that someday they may be able to recover some of their functioning.

One experimental new treatment involves surgery which involves the use of stem cells to recover functioning and accelerate recovery. The treatment is still in its early stages of development and, at this point, more work needs to be done to determine whether stem cells can actually repair spinal cord damage or whether they make some other contribution to the healing process.