The case of Ofori v. Green, 2010 N.Y. Slip Op. 04841 (1st Dept. June 8, 2010), involves a personal injury action arising out of a 2006 automobile accident in New Jersey. It was undisputed that the parties were residents of New York, where their vehicles were registered. The defendants moved for summary judgment to dismiss the case on the grounds that the plaintiff did not sustain a serious injury. The lower court denied defendants’ motion and the Appellate Division unanimously affirmed.
The sole issue on appeal was whether the fortuitous circumstance that the accident happened in New Jersey should negate the requirement of plaintiff having to prove a “serious injury” under Insurance Law § 5102(d). The court determined that it does, emphasizing that New York’s no-fault law applies only to “injuries arising out of negligence in the use or operation of a motor vehicle in this state ” (Insurance Law § 5104[a] [emphasis added]). In this regard, the court stated that it has consistently been held that the statute is not to be given extraterritorial effect.
Friday, June 18, 2010
Tuesday, May 25, 2010
Passenger Who Grabs Steering Wheel Not an “Insured Person” Under Policy
In Progressive Halycon Ins. Co. v. Giacometti, 71 A.D.3d 1503 (4th Dept. 2010), the court determined that a passenger who grabbed the steering wheel and pulled the vehicle to the right after the driver steered to the left was not an insured person within the meaning of the automobile policy. In this case, the driver/insured leased the vehicle with a policy that limited an insured person to those who used the vehicle with the insured’s express or implied permission. The court determined that Progressive met its burden in establishing that the driver, who grabbed the steering wheel, had neither the express or implied permission of the driver/insured to use the vehicle and therefore was excluded under the policy.
Friday, May 14, 2010
Upstate New York Accident Applies Law of Ontario, Canada Concerning Noneconomic Damages
The case of Butler v. Stagecoach Group, PLC, 2010 N.Y. Slip Op. 03615 (4th Dept. April 30, 2010) involves a collision in Upstate New York, between a chartered bus transporting a young woman’s hockey team from Ontario, Canada and a tractor-trailer parked on the side of the road. This case involves 12 consolidated appeals concerning four separate but related actions seeking damages for injuries and/or wrongful death resulting from this collision.
As part of the appeal, plaintiffs contend that the court erred in determining that the law of Ontario, Canada concerning noneconomic damages be applied. However, the Appellate Division concluded that the court did not abuse its discretion in applying Ontario law regarding noneconomic damages. The court went on to state that the measure of damages is an issue of substantive law, therefore a conflict of laws analysis was required to determine whether New York or Ontario law applied. The Court used the Neumeir rule to resolve the choice of law issue and ultimately determined that although the parties were domiciled in different Countries, the application of Ontario law did not violate the public policy of New York.
As part of the appeal, plaintiffs contend that the court erred in determining that the law of Ontario, Canada concerning noneconomic damages be applied. However, the Appellate Division concluded that the court did not abuse its discretion in applying Ontario law regarding noneconomic damages. The court went on to state that the measure of damages is an issue of substantive law, therefore a conflict of laws analysis was required to determine whether New York or Ontario law applied. The Court used the Neumeir rule to resolve the choice of law issue and ultimately determined that although the parties were domiciled in different Countries, the application of Ontario law did not violate the public policy of New York.
Monday, May 10, 2010
Jury Verdict in Favor of Plaintiff Injured in Automobile Accident Affirmed
In Garrison v. Lapine, 2010 N.Y. Slip. Op. 03515 (3d Dept. April 29, 2010), the Appellate Division, Third Department, affirmed the trial court’s denial of defendant’s motion to set aside the verdict. This case was commenced by plaintiff and her husband, derivatively, to recover damages resulting from injuries sustained by plaintiff in an automobile accident. Defendants conceded liability but a jury trial was held to determine, among other things, causation and damages. After a finding that the plaintiff had suffered a significant limitation of the use of a body function or system, as well as a permanent consequential limitation of the use of a body organ or member, the jury awarded plaintiff $500,000 for past pain and suffering and $2 million for future pain and suffering for a period of 31 years. In addition, the jury awarded plaintiff’s husband $400,000 for loss of consortium.
Defendants moved to set aside the verdict, asserting that the damage award deviated materially from what would be reasonable compensation. However, the lower court denied this motion and the appellate court affirmed. The Appellate Court reiterated the rule that to successfully challenge a determination as to the amount of damages to be awarded, the records evidence must preponderate in favor of the moving party to such a degree that the verdict could not have been reached on any fair interpretation of the evidence. The Court held that defendant did not meet this burden, and in view of the evidence on the record concluded that the jury’s verdict was amply supported by a fair interpretation of the evidence and the damages awarded were well within the range of reasonable compensation.
Defendants moved to set aside the verdict, asserting that the damage award deviated materially from what would be reasonable compensation. However, the lower court denied this motion and the appellate court affirmed. The Appellate Court reiterated the rule that to successfully challenge a determination as to the amount of damages to be awarded, the records evidence must preponderate in favor of the moving party to such a degree that the verdict could not have been reached on any fair interpretation of the evidence. The Court held that defendant did not meet this burden, and in view of the evidence on the record concluded that the jury’s verdict was amply supported by a fair interpretation of the evidence and the damages awarded were well within the range of reasonable compensation.
Thursday, April 15, 2010
New York Jury Awards over $7 Million in Damages related to Bus Accident
Earlier this year, two women injured in a 2005 Metropolitan Transportation Authority (“MTA”) bus accident were awarded over $7 million in damages. The parties, Brenda Whaley and Amanda Wade, were injured in the collision as the car in which they were passengering proceeded across an intersection and was hit by the MTA bus.
While the bus driver claimed the car in which the woman were passengers ran a stop sign, the driver of the car carrying Whaley and Wade said they stopped at the intersection and the bus ran a red light before hitting them. A jury found the MTA responsible for the accident at a trial held to determine fault.
In a separate trial to assess damages, a jury came to a verdict that awarded Whaley, who sustained six fractures and punctured lungs, $7,250,000. Wade, who was less severely injured, was awarded $250,000.
The Transit Authority plans to appeal to decision.
While the bus driver claimed the car in which the woman were passengers ran a stop sign, the driver of the car carrying Whaley and Wade said they stopped at the intersection and the bus ran a red light before hitting them. A jury found the MTA responsible for the accident at a trial held to determine fault.
In a separate trial to assess damages, a jury came to a verdict that awarded Whaley, who sustained six fractures and punctured lungs, $7,250,000. Wade, who was less severely injured, was awarded $250,000.
The Transit Authority plans to appeal to decision.
Friday, April 2, 2010
Evidence of Brake Failure Insufficient to Raise a Triable Issue of Fact
The case of Tselebis v. Ryder Truck Rental Inc., 2010 Slip Op. 01442 (1st Dept. Feb. 18, 2010) involves an accident between a truck and a motorcycle. The plaintiff, driver of the motorcycle, testified that he had no recollection of the accident. The driver of the truck testified that although he entered into the intersection against a red light it was due to his truck’s brake failure. Nevertheless, the court determined, summary judgment in favor of the plaintiff was warranted. The court stated that defendant’s admission that he entered the intersection while the traffic light was red constituted a prima facie showing of liability on his part. The proffer of brake failure by defendant was insufficient to raise a triable factual issue with respect to liability.
The court discussed that a defendant claiming brake failure must make a two-pronged showing that the accident was caused by an unanticipated problem with the vehicle’s brakes, and that he exercised reasonable care to keep the brake in good working order. Here, defendant failed to meet the first prong in light of defendant’s testimony of the problems he experienced with the truck’s brakes prior to the accident.
The court stated that plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question. The court reminds that a plaintiff’s own culpable conduct no longer stands as a bar to recovery in an action for personal injury and that freedom from comparative negligence is not a required component of a plaintiff’s prima facie showing on a motion for summary judgment.
The court discussed that a defendant claiming brake failure must make a two-pronged showing that the accident was caused by an unanticipated problem with the vehicle’s brakes, and that he exercised reasonable care to keep the brake in good working order. Here, defendant failed to meet the first prong in light of defendant’s testimony of the problems he experienced with the truck’s brakes prior to the accident.
The court stated that plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question. The court reminds that a plaintiff’s own culpable conduct no longer stands as a bar to recovery in an action for personal injury and that freedom from comparative negligence is not a required component of a plaintiff’s prima facie showing on a motion for summary judgment.
Friday, March 26, 2010
Plaintiff Fails to Satisfying the Permanent Loss of Use Category of Ins. Law § 5102(d)
In Tracy v. Tracy, 2010 Slip Op. 00452 (3d Dept. Jan 21. 2010), plaintiff failed to satisfy the serious injury threshold under New York Insurance Law Section 5102(d) for permanent loss of use. Under this provision, a plaintiff must establish that the loss of use is total. To meet this burden, "the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system."
In an attempt to satisfy her burden, plaintiff, injured in a motor vehicle accident, proffered the affidavit of her treating physician, Dr. Bennett. Bennett did not, however, opine that plaintiff's loss of use was total, but instead concluded only that she "has a permanent moderate loss of use of her lumbar spine." In his affidavit, Bennett opined that the force of the accident caused plaintiff's preexisting degenerative disease of the lumbar spine to become symptomatic, requiring surgery and leaving plaintiff with a permanent moderate loss of function of the lumbar spine. Bennett did not explain how the accident aggravated plaintiff's condition nor did he set forth any qualitative or quantitative evidence of a limitation in plaintiff's range of motion.
In as much as plaintiff failedto submit any objective evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury pursuant to Insurance Law Section 5102(d), the court concluded that the complaint was properly dismissed.
In an attempt to satisfy her burden, plaintiff, injured in a motor vehicle accident, proffered the affidavit of her treating physician, Dr. Bennett. Bennett did not, however, opine that plaintiff's loss of use was total, but instead concluded only that she "has a permanent moderate loss of use of her lumbar spine." In his affidavit, Bennett opined that the force of the accident caused plaintiff's preexisting degenerative disease of the lumbar spine to become symptomatic, requiring surgery and leaving plaintiff with a permanent moderate loss of function of the lumbar spine. Bennett did not explain how the accident aggravated plaintiff's condition nor did he set forth any qualitative or quantitative evidence of a limitation in plaintiff's range of motion.
In as much as plaintiff failedto submit any objective evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury pursuant to Insurance Law Section 5102(d), the court concluded that the complaint was properly dismissed.
Friday, March 19, 2010
Federal Ban on Texting for Commercial Truck and Bus Drivers
The United States Department of Transportation announced on January 26, 2010 that it is prohibiting truck and bus drivers from sending text messages on hand-held devices while operating commercial vehicles weighing over 10,000 pounds. This federal ban on texting for commercial truck drivers while driving is effective immediately and is the latest in a series of actions taken by the Department to combat distracted driving since the September 2009 Distracted Driving Summit.
Federal Motor Carrier Safety Administration (FMCSA) research shows that drivers who send and receive test messages take their eyes off the road for an average of 4.6 seconds out of every 6 seconds while texting. At 55 miles per hour, this means that the driver is traveling the length of a football field, including the end zones, without looking at the road. Drivers who text while driving are more than 20 times more likely to get in an accident than non-distracted drivers. A report released on January 12, 2010, from the National Safety Council reported that 28 percent of traffic accidents are caused by people talking on cell phones or sending text messages.
Distracted driving is a serious, life-treatening practice and interstate truck and bus drivers who text while driving may be subject to civil or criminal penalties of up to $2,750. For further information, please visit http://www.dot.gov/.
New York Law
Effective November 1, 2009, New York became the 18th state to initiate the law against texting while driving. Previously, New York only banned talking on cell phones while driving. This new law forbids the use of mobile devices for reading, typing and sending text messages while driving and imposes a fine of up to $150. However, ther ban on portable electronics is considered a secondary offense, which means that it can only be levied if a driver is pulled over for another violation.
Federal Motor Carrier Safety Administration (FMCSA) research shows that drivers who send and receive test messages take their eyes off the road for an average of 4.6 seconds out of every 6 seconds while texting. At 55 miles per hour, this means that the driver is traveling the length of a football field, including the end zones, without looking at the road. Drivers who text while driving are more than 20 times more likely to get in an accident than non-distracted drivers. A report released on January 12, 2010, from the National Safety Council reported that 28 percent of traffic accidents are caused by people talking on cell phones or sending text messages.
Distracted driving is a serious, life-treatening practice and interstate truck and bus drivers who text while driving may be subject to civil or criminal penalties of up to $2,750. For further information, please visit http://www.dot.gov/.
New York Law
Effective November 1, 2009, New York became the 18th state to initiate the law against texting while driving. Previously, New York only banned talking on cell phones while driving. This new law forbids the use of mobile devices for reading, typing and sending text messages while driving and imposes a fine of up to $150. However, ther ban on portable electronics is considered a secondary offense, which means that it can only be levied if a driver is pulled over for another violation.
Tuesday, March 16, 2010
Severe Injuries Caused by Motorcycle Accidents
There is something compelling about riding a motorcycle on the open road down Route 20 through Upstate New York, the wind rushing around you and the sense of freedom that brings. Whether you are on a scenic drive on Route 20, Route 5 or, the New York State Thruway or Interstate 81, those same qualities that make a motorcycle attractive to so many riders may also make it dangerous.
When a motorcycle is in a crash, the driver can face very serious injuries. There is little to no protection for motorcycle riders. According to data from the National Highway Transportation Safety Administration (NHTSA), 80 percent of motorcycle wrecks result in injury or death, compared to 20 percent for automobiles. Other NHTSA data shows that the motorcycle fatality rate is more than five times that of passenger vehicles (73 per 100,000 registered motorcycles versus 14 per 100,000 registered motor vehicles).
Motorcycle Accident Injuries
Some of the most serious injuries involve head, chest and spine. Head injuries are often seen in victims of these accidents, even those wearing helmets. A typical head injury would be bleeding in the brain (cerebral hematoma).
Chest injuries may include damage to the lung or rib fractures. Spinal injuries often involve damage to the cervical spine, or neck.
Abdominal injuries may also be severe and may include damage to the spleen or liver. Lower extremity injuries, including pelvic injuries and broken legs or arms are frequently found. Abrasions, or “road rash,” are often caused by scraping on the pavement.
The costs and recovery from accidents involving head and spinal injuries can be extensive and expensive. In many cases, the initial hospital stay may be just the beginning of a long road to recovery including a lengthy rehabilitation.
Dangers on the Roadways
One of the challenges faced by motorcyclists is lack of conspicuity, not being seen by other cars. This is one of the main factors in the following motorcycle accident scenarios:
Another challenge is that objects on the road, ridges in the pavement or potholes that a car or truck could easily drive over can create added risk for a motorcyclist. Similarly, driving on the shoulder or off the road to avoid an obstacle can lead to more damage or injuries for a motorcyclist.
Increasing Safety
Some recommendations from NHTSA to increase motorcycle safety include:
New York has already adopted some of NHTSA’s recommendations. Motorcyclists are required to wear helmets and to have front and rear lights on at all times to help with visibility.
All drivers have a duty to use due care, a failure to exercise this care may be considered legal negligence. Motorcycle drivers have the same rights and duties as other drivers. Automobile drivers have a duty to use reasonable care to avoid a collision with a motorcyclist.
If you have been involved in a motorcycle accident, it is important to consult with an attorney knowledgeable in these types of matters who is familiar with New York law. A lawyer will be able to answer any questions you have and help you determine the right course of action for you, based on your circumstances.
When a motorcycle is in a crash, the driver can face very serious injuries. There is little to no protection for motorcycle riders. According to data from the National Highway Transportation Safety Administration (NHTSA), 80 percent of motorcycle wrecks result in injury or death, compared to 20 percent for automobiles. Other NHTSA data shows that the motorcycle fatality rate is more than five times that of passenger vehicles (73 per 100,000 registered motorcycles versus 14 per 100,000 registered motor vehicles).
Motorcycle Accident Injuries
Some of the most serious injuries involve head, chest and spine. Head injuries are often seen in victims of these accidents, even those wearing helmets. A typical head injury would be bleeding in the brain (cerebral hematoma).
Chest injuries may include damage to the lung or rib fractures. Spinal injuries often involve damage to the cervical spine, or neck.
Abdominal injuries may also be severe and may include damage to the spleen or liver. Lower extremity injuries, including pelvic injuries and broken legs or arms are frequently found. Abrasions, or “road rash,” are often caused by scraping on the pavement.
The costs and recovery from accidents involving head and spinal injuries can be extensive and expensive. In many cases, the initial hospital stay may be just the beginning of a long road to recovery including a lengthy rehabilitation.
Dangers on the Roadways
One of the challenges faced by motorcyclists is lack of conspicuity, not being seen by other cars. This is one of the main factors in the following motorcycle accident scenarios:
- An oncoming automobile takes a left hand turn in front of a motorcycle
- Another vehicle on the road violates the motorcycle’s right of way in a lane or an intersection
Another challenge is that objects on the road, ridges in the pavement or potholes that a car or truck could easily drive over can create added risk for a motorcyclist. Similarly, driving on the shoulder or off the road to avoid an obstacle can lead to more damage or injuries for a motorcyclist.
Increasing Safety
Some recommendations from NHTSA to increase motorcycle safety include:
- Improving the motorcycle braking system by utilizing anti-lock braking technology
- Making motorcycles and motorcyclists more visible with enhanced lighting
- Increasing the use of helmets
- Eliminating drinking and driving
- Requiring rider training classes for new drivers and refreshers for experienced drivers
- Making other drivers more aware of sharing the road safely with motorcycles
New York has already adopted some of NHTSA’s recommendations. Motorcyclists are required to wear helmets and to have front and rear lights on at all times to help with visibility.
All drivers have a duty to use due care, a failure to exercise this care may be considered legal negligence. Motorcycle drivers have the same rights and duties as other drivers. Automobile drivers have a duty to use reasonable care to avoid a collision with a motorcyclist.
If you have been involved in a motorcycle accident, it is important to consult with an attorney knowledgeable in these types of matters who is familiar with New York law. A lawyer will be able to answer any questions you have and help you determine the right course of action for you, based on your circumstances.
Monday, March 1, 2010
The Scourge of Drivers Operating Vehicles with Suspended Licenses
Provided by O'Connor, O'Connor, Bresee & First, P.C.
On the morning of December 10, 2009, two seventeen-year-olds were walking to school in Brooklyn when they were struck by an intoxicated driver operating his vehicle with a suspended license. One of the teens was critically injured when the driver ran a red light and drove straight into the crosswalk. In the aftermath of the accident, many witnesses and local residents complained about the lack of a crossing guard at the intersection. Recent trends in pedestrian injury by drivers operating vehicles with suspended licenses however, suggest that a crossing guard would likely not have deterred the intoxicated driver.
The Recent Rise in Pedestrian Accidents Caused by Unlicensed Drivers
The December 10 accident occurred just days after three pedestrians were killed in two separate hit-and-runs by drivers operating with suspended licenses in New York. A 26-year-old with at least 29 license suspensions on his record, since 2006, hit and killed an elderly pedestrian couple as they walked to Thanksgiving mass. 48 hours later, a woman was struck and killed in the Bronx, while walking with her fiancée, by a driver with four prior license suspensions on his record. These casualties are only the latest in a trend cited by the Department of Motor Vehicles which has noted that ten percent of drivers currently causing traffic accidents in New York City are operating with suspended licenses at the time of their accidents.
A Call for Action
Recently, the pro-pedestrian, bicycle and public transit group “Transportation Alternatives” organized an outcry for legal reform concerning drivers who operate vehicles with suspended licenses. Generally, the group has called for impounding the vehicles of drivers whose licenses are suspended, charging any driver who commits two or more dangerous moving violations within an eighteen month period with a felony and creating an Office of Road Safety at New York City Hall to draw attention to the problem.
The recent passage of “Leandra’s Law,” which makes driving while intoxicated with a minor in the car a felony, has drawn national attention to New York’s driving laws. Under Leandra’s Law, if an intoxicated driver seriously injures or kills a minor while they are passengers inside the car, the driver will face imprisonment of up to 15 or 25 years. However, the intoxicated driver who struck two minors while they were in a crosswalk currently only faces the penalties that accompany a driving-while-intoxicated (DWI) offense and the offense of Aggravated Unlicensed Operation of a Vehicle, which carries a maximum penalty of a fine up to $5,000.00 and up to four years in prison. The citizens of New York must now ask themselves whether it is logical to impose such disproportionate sentences for the essentially the same offense, regardless of whether the minor was present inside the car or walking in front of it.
The National Highway Traffic Safety Administration reports that seventy-five percent of drivers with suspended licenses continue to drive. The virtual lack of consequences for driving with a suspended license in New York no doubt adds to this crisis. Even the 26-year-old who recently killed the elderly pedestrian couple, with 29 previous license suspensions on his record, is free to drive again. He has only been charged with leaving the scene and unlicensed operation of a vehicle. If the ten percent of New York City crashes that are caused by drivers operating without a license is to be reduced, stricter punishments for violations of license suspension are likely necessary.
For Further Reference
If you, or a loved one, have been injured by an unlicensed driver, please contact an experienced personal injury attorney to learn more about your legal rights and options. To show support for more meaningful penalties against drivers operating with a suspended license, contact your legislature.
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