Often times, the driver primarily responsible for an automobile accident is not the owner of the vehicle he or she was driving.
New York Vehicle & Traffic Law §388 provides that the owner of a vehicle is “liable and responsible” for death or injuries to person or property resulting from the negligent use or operation of the vehicle.
In essence, the statute imposes strict liability on vehicle owners provided two essential criteria are established: First, the vehicle must be used or operated in New York State; and second, the driver must be using or operating the vehicle with the owner’s express or implied permission.
The statute is important for plaintiffs who have been severely injured and looking for deep pockets from which to satisfy a potential judgment. Not only can a plaintiff potentially recover from the driver’s insurance carrier, but also that of the vehicle owner. To illustrate, if plaintiff suffered a severe spinal injury for which she would likely obtain a judgment in the hundreds of thousands or even millions against the driver, she might be limited in her ability to recover if the driver had a policy limit of only $75,000 and otherwise had no personal assets. By adding a second defendant, the realistic amount the plaintiff could recover could be significantly more.
There are a variety of interesting situations where VTL §388 could very dramatically “sweeten the pot” for a plaintiff, such as in cases where the vehicle was rented from a car rental agency, or a “loaner car” from an automobile dealership. Both car rental agencies and automobile dealerships usually have significantly greater policy limits.
Not surprisingly, however, issues often arise with respect to whether the owner granted the driver permission. Take for example, the situation where the owner of a vehicle is intoxicated and asks another to drive his vehicle home from a tavern. There may be a question of whether the owner had the capacity to grant permission to the driver while impaired.
Another question may result in the use of dealership plates when a dealer permits a purchaser to drive off the lot with a vehicle that is still technically registered to the dealer while it undertakes to process a financing application. There are specific laws that apply to dealers which, if violated, may estop the dealer from denying ownership.
Then there are those cases where somebody gave an individual permission to drive a vehicle, but attempted to revoke it. In those instances, to be safe, the vehicle owner’s revocation of permission should be unequivocal. If the owner tells the driver he or she needs to return the vehicle, that may not be enough. Instead, the safer course of action is to notify the driver that they no longer have permission to drive the vehicle and that you will come retrieve it yourself. If the driver fails to comply, the owner can take other steps to safeguard against there being any question of fact with respect to the revocation of permission such as reporting the vehicle stolen, and reporting the failure of the driver to return the vehicle to the Department of Motor Vehicles in writing. Repossession may be another option, so long as it can be done peaceably.
Every case is different and, for that reason, it is best to consult an attorney for advice before taking drastic action.
Monday, October 20, 2008
Tuesday, October 7, 2008
New York's Good Samaritan Law - A Good Deed Goes Unpunished
The other day, a client was telling me a story. While trying to describe somebody’s personality, he said this:
“She’s the type of person that will find fault in everything you do. If you push her off the tracks just seconds before she is about to be struck by a speeding locomotive, she’ll sue you for bruising her leg and soiling her clothes.”
And that reminded me of New York's Good Samaritan law, today's topic.
Common Law: No Good Deed Goes Unpunished
Generally speaking, there is no duty to come to the aid of somebody that has been in an accident and in need of emergency medical assistance. However, not long ago, if you attempted to render medical assistance to somebody and botched the rescue, chances were you would be sued. Therefore, educated bystanders wouldn’t dare attempt a rescue.
Since the common law discouraged bystanders from attempting to render medical assistance to those in need, the legislature, recognizing this result was both unacceptable and undesirable, enacted in 2000 what is generally referred to as the Good Samaritan law.
Effect of the Law
New York’s Good Samaritan law carves out specific circumstances when an individual shall not be held liable for ordinary negligence in attempting to render medical assistance. Instead, they will only be held liable in cases of gross negligence.
Gross Negligence
Simply put, negligence is a failure to exercise ordinary care. Gross negligence means a failure to use even slight care, or is conduct that is so careless as to show complete disregard for the rights and safety of others.
When it Applies
The law isn’t found in one centralized part, but rather integrated into various provisions of the NY Public Health Law and the NY Education Law.
Importantly, New York’s Good Samaritan law is limited to medical treatment or assistance. The heart of the law is found in Pub. Health Law §3000-a, which provides in part:
[A]ny person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or other emergency outside a hospital, doctor's office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill, or injured, shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries were or such death was caused by gross negligence on the part of such person.
Voluntary Act; No Expectation of Monetary Compensation
An important theme here is that the person act both voluntarily, and without the expectation of monetary compensation. This is significant because the protection extends to dentists (Educ. on Law §661[6]), physicians (Educ. Law §6527[2]), nurses (Educ. Law §6909[1]), physicians assistants (Educ. Law §6547) and physical therapists (Educ. Law §6737), provided they are not in a place having proper and necessary medical equipment, and are not rendering their professional or licensed services in the ordinary course of their practices.
Automated External Defibrillator (AED) and Epinephrine Auto-Injector (Epi-pen) Devices
The law is somewhat different, however, for emergency health care providers, or those persons or entities that purchase or make available Automated External Defibrillator (AED) devices, or Epinephrine Auto-Injector devices. In those cases, the emergency health care provider, person or entity, shall not be held liable for the use of that equipment if a person voluntarily and without expectation of monetary compensation renders first aid or emergency medical treatment, and shall also not be held liable for the use of defectively manufactured equipment.
However, the law expressly states it shall not limit claims against the emergency health care provider, person or entity that purchased or made available that equipment from its own negligence, gross negligence or intentional misconduct. Pub. Health Law §3000-a(2). See, also, Pub. Health Law §3000-b (Automated External Defibrillators) and Pub. Health Law §3000-c (Epinephrine Auto-Injector).
Go Ahead, Be a Hero
Once again, it is safe to play superhero . . . but remember to use at least ordinary care.
(NOTE: Emergency medical technicians and volunteer ambulance services are subject to more technical provisions under Pub. Health Law §3013.)
“She’s the type of person that will find fault in everything you do. If you push her off the tracks just seconds before she is about to be struck by a speeding locomotive, she’ll sue you for bruising her leg and soiling her clothes.”
And that reminded me of New York's Good Samaritan law, today's topic.
Common Law: No Good Deed Goes Unpunished
Generally speaking, there is no duty to come to the aid of somebody that has been in an accident and in need of emergency medical assistance. However, not long ago, if you attempted to render medical assistance to somebody and botched the rescue, chances were you would be sued. Therefore, educated bystanders wouldn’t dare attempt a rescue.
Since the common law discouraged bystanders from attempting to render medical assistance to those in need, the legislature, recognizing this result was both unacceptable and undesirable, enacted in 2000 what is generally referred to as the Good Samaritan law.
Effect of the Law
New York’s Good Samaritan law carves out specific circumstances when an individual shall not be held liable for ordinary negligence in attempting to render medical assistance. Instead, they will only be held liable in cases of gross negligence.
Gross Negligence
Simply put, negligence is a failure to exercise ordinary care. Gross negligence means a failure to use even slight care, or is conduct that is so careless as to show complete disregard for the rights and safety of others.
When it Applies
The law isn’t found in one centralized part, but rather integrated into various provisions of the NY Public Health Law and the NY Education Law.
Importantly, New York’s Good Samaritan law is limited to medical treatment or assistance. The heart of the law is found in Pub. Health Law §3000-a, which provides in part:
[A]ny person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or other emergency outside a hospital, doctor's office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill, or injured, shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries were or such death was caused by gross negligence on the part of such person.
Voluntary Act; No Expectation of Monetary Compensation
An important theme here is that the person act both voluntarily, and without the expectation of monetary compensation. This is significant because the protection extends to dentists (Educ. on Law §661[6]), physicians (Educ. Law §6527[2]), nurses (Educ. Law §6909[1]), physicians assistants (Educ. Law §6547) and physical therapists (Educ. Law §6737), provided they are not in a place having proper and necessary medical equipment, and are not rendering their professional or licensed services in the ordinary course of their practices.
Automated External Defibrillator (AED) and Epinephrine Auto-Injector (Epi-pen) Devices
The law is somewhat different, however, for emergency health care providers, or those persons or entities that purchase or make available Automated External Defibrillator (AED) devices, or Epinephrine Auto-Injector devices. In those cases, the emergency health care provider, person or entity, shall not be held liable for the use of that equipment if a person voluntarily and without expectation of monetary compensation renders first aid or emergency medical treatment, and shall also not be held liable for the use of defectively manufactured equipment.
However, the law expressly states it shall not limit claims against the emergency health care provider, person or entity that purchased or made available that equipment from its own negligence, gross negligence or intentional misconduct. Pub. Health Law §3000-a(2). See, also, Pub. Health Law §3000-b (Automated External Defibrillators) and Pub. Health Law §3000-c (Epinephrine Auto-Injector).
Go Ahead, Be a Hero
Once again, it is safe to play superhero . . . but remember to use at least ordinary care.
(NOTE: Emergency medical technicians and volunteer ambulance services are subject to more technical provisions under Pub. Health Law §3013.)
Monday, September 29, 2008
Taking a Personal Injury Case on a Contingency Fee Basis
Lawyers routinely take on personal injury cases on a contingency basis. But many times, individuals are confused and frustrated when they ask several lawyers to represent them and they all decline.
If liability is straight forward, and a case could still be filed before expiration of the statute of limitations, then chances are the case flunks the lawyer's cost-benefit analysis.
Here's an example. I know from past experience, that the average litigation I handle on an hourly basis costs my clients approximately $30,000 in legal fees to get to trial. That's slightly more than 109 hours at a rate of $275 per hour. Therefore, if I take on a personal injury case, I expect on average that it will take up 109 hours, more or less, of my time.
In evaluating a personal injury case, I will either look at the jury verdict reporters, or know from experience, what the average jury verdict is in the jurisdiction where the plaintiff could file suit. If the verdicts in that jurisdiction do not exceed $90,000, then the case is not worthwhile for me to handle. That's because a one-third fee on a $90,000 verdict or settlement is $30,000. Anything less, and I am better off spending my time doing hourly work, and getting paid on a monthly basis.
That's not to say other attorneys won't consider taking on small contingency cases. Not all attorneys will have the option of filling their workdays with hourly work. And some will always want to take the chance of going for a quick settlement, betting that the case won't make it through discovery or all the way to trial.
Of course, the above represents only one consideration that will go into the decision-making process. Lawyers must also consider the degree, if any, of the individual's comparative fault. They must also consider whether the defendant is insured, and whether any judgment could be satisifed. Finally, the lawyer must evaluate the potential client, determine whether the individual would be a credible witness at trial, and make a determination as to whether the lawyer will be able to work with him or her.
If liability is straight forward, and a case could still be filed before expiration of the statute of limitations, then chances are the case flunks the lawyer's cost-benefit analysis.
Here's an example. I know from past experience, that the average litigation I handle on an hourly basis costs my clients approximately $30,000 in legal fees to get to trial. That's slightly more than 109 hours at a rate of $275 per hour. Therefore, if I take on a personal injury case, I expect on average that it will take up 109 hours, more or less, of my time.
In evaluating a personal injury case, I will either look at the jury verdict reporters, or know from experience, what the average jury verdict is in the jurisdiction where the plaintiff could file suit. If the verdicts in that jurisdiction do not exceed $90,000, then the case is not worthwhile for me to handle. That's because a one-third fee on a $90,000 verdict or settlement is $30,000. Anything less, and I am better off spending my time doing hourly work, and getting paid on a monthly basis.
That's not to say other attorneys won't consider taking on small contingency cases. Not all attorneys will have the option of filling their workdays with hourly work. And some will always want to take the chance of going for a quick settlement, betting that the case won't make it through discovery or all the way to trial.
Of course, the above represents only one consideration that will go into the decision-making process. Lawyers must also consider the degree, if any, of the individual's comparative fault. They must also consider whether the defendant is insured, and whether any judgment could be satisifed. Finally, the lawyer must evaluate the potential client, determine whether the individual would be a credible witness at trial, and make a determination as to whether the lawyer will be able to work with him or her.
Friday, September 26, 2008
Protect Yourself From A Liability Claim - An Ounce of Prevention
The overwhelming majority of automobile owners and homeowners have policies of insurance designed to insulate and protect them from personal injury claims. But when an accident occurs, they frequently make the same big, costly mistake. They fail to timely report the claim. The end result is that their insurance carrier denies coverage.
I see it happen much too often. People are afraid to report accidents to their insurance companies when they occur. They are afraid that their premiums will increase, and figure why take that risk when they are not even sure the other party is injured or will sue.
Whether it's an automobile accident, or a roofer losing balance and falling off the top of your home, not reporting a claim can be much more costly in the long run than any increase in your insurance premiums.
Most policies of insurance require you to promptly report accidents when you know, or should reasonably know, that somebody has a claim against you. Insurance companies are in the business of making money. Many times, if you fail to report a claim in a timely manner, they will deny coverage.
Even if the claim is bogus and lacks merit, your carrier still has an obligation to defend you. They will hire and pay for your attorney. But if you fail to timely report a claim, the insurance company may refuse to defend you, which can cost you thousands of dollars in attorneys' fees.
In New York, the statute of limitations on a general negligence claim is three (3) years. That period can be even longer if the injured party is a minor, has a disability, or meets certain other criteria for tolling the statute. If you are sued two (2) years after an accident and failed to report it, don't expect cooperation from your insurance company.
Sadly, many general practice attorneys never even think to advise their clients to put their insurance company on notice. Then, when the case is referred to me, I not only have to put in an answer and defend the client on the accident claim, but also take whatever steps I can to persuade the insurance company to provide coverage or at least pay for the client's defense. Sometimes that means suing the insurance company, which is a less than desirable position to be in.
So if you are involved in an auto accident, or somebody gets injured on your property, think twice before deciding not to report it. And if you do, make sure you not only call, but also do it in writing.
I see it happen much too often. People are afraid to report accidents to their insurance companies when they occur. They are afraid that their premiums will increase, and figure why take that risk when they are not even sure the other party is injured or will sue.
Whether it's an automobile accident, or a roofer losing balance and falling off the top of your home, not reporting a claim can be much more costly in the long run than any increase in your insurance premiums.
Most policies of insurance require you to promptly report accidents when you know, or should reasonably know, that somebody has a claim against you. Insurance companies are in the business of making money. Many times, if you fail to report a claim in a timely manner, they will deny coverage.
Even if the claim is bogus and lacks merit, your carrier still has an obligation to defend you. They will hire and pay for your attorney. But if you fail to timely report a claim, the insurance company may refuse to defend you, which can cost you thousands of dollars in attorneys' fees.
In New York, the statute of limitations on a general negligence claim is three (3) years. That period can be even longer if the injured party is a minor, has a disability, or meets certain other criteria for tolling the statute. If you are sued two (2) years after an accident and failed to report it, don't expect cooperation from your insurance company.
Sadly, many general practice attorneys never even think to advise their clients to put their insurance company on notice. Then, when the case is referred to me, I not only have to put in an answer and defend the client on the accident claim, but also take whatever steps I can to persuade the insurance company to provide coverage or at least pay for the client's defense. Sometimes that means suing the insurance company, which is a less than desirable position to be in.
So if you are involved in an auto accident, or somebody gets injured on your property, think twice before deciding not to report it. And if you do, make sure you not only call, but also do it in writing.
Thursday, September 25, 2008
Welcome Post
Welcome to my blog. Personal injury law is very often under scrutiny. Outside the U.S., people marvel at how "sue-happy" we are here. We sue restaurants when we burn ourselves on a hot cup coffee. Plaintiffs' lawyers are dubbed with the dubious label of being "ambulance chasers". Tort reform has been the platform for many a politician.
But it's not all that bad. Having practiced in a variety of different areas, quite frankly I find personal injury cases to be refreshingly honest. When a plaintiff is legimately hurt, there is little gamesmanship. Medical records are freely disclosed. Plaintiffs' lawyers have no issue with having the defendants' medical experts examine the plaintiff.
Here in New York, the trials in state court are bifurcated. Juries must first determine a defendant's liability before ever hearing what injuries were suffered. This procedure was designed to ensure that juries can first focus on the liability issues without being prejudiced by gruesome evidence of the injuries.
Having represented both plaintiffs and defendants, this blog will differ from most in that the topics being discussed may be tips for either side to consider. In the coming weeks, I'll offer some commentary on automobile accidents, protecting yourself from liability, and how plaintiffs' lawyers decide whether or not to take on a personal injury case.
If you have any questions, feel free to write them in the Reader Comments section and I just might have an opportunity to answer them or make it the topic of my next post.
Regards,
DS
But it's not all that bad. Having practiced in a variety of different areas, quite frankly I find personal injury cases to be refreshingly honest. When a plaintiff is legimately hurt, there is little gamesmanship. Medical records are freely disclosed. Plaintiffs' lawyers have no issue with having the defendants' medical experts examine the plaintiff.
Here in New York, the trials in state court are bifurcated. Juries must first determine a defendant's liability before ever hearing what injuries were suffered. This procedure was designed to ensure that juries can first focus on the liability issues without being prejudiced by gruesome evidence of the injuries.
Having represented both plaintiffs and defendants, this blog will differ from most in that the topics being discussed may be tips for either side to consider. In the coming weeks, I'll offer some commentary on automobile accidents, protecting yourself from liability, and how plaintiffs' lawyers decide whether or not to take on a personal injury case.
If you have any questions, feel free to write them in the Reader Comments section and I just might have an opportunity to answer them or make it the topic of my next post.
Regards,
DS
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