Interviewer: What factors determine if a case is viable where the person could get compensation versus the one where they’re probably not going to get anything?
Ira Perlman: First, you have to prove that there is a duty owed by somebody towards you in terms of something happening. Once there’s a duty owed, that person that owes you the duty has to act responsibly and act in a reasonable manner so as to prevent something bad from happening to someone else. So, if you’re going to sue someone, of course you need to prove that someone else is responsible for some harm or loss that was incurred by the injured party.
Being Cited by a Police Officer at the Scene of an Accident Does Not Mean You Cannot Pursue a Personal Injury Claim
Interviewer: In New York, if you get into an accident and the police come to the scene and they cite you, does that mean that your case is doomed and you can’t get compensation?
Ira Perlman: No, absolutely not. Your case is not doomed merely because a police officer cited you. The police officer may not have been present at the time the accident occurred and his reliance on somebody else or something else may be wrong and not proper but there are always two parts to a case; there is the liability or the fault part and then there is the damages, the injury part to a case or the harms and losses portion of the case. In terms of the liability or fault portion of the case, you’re always dealing with 100 percentage points and it is up to the plaintiff in a case to prove that the defendant or defendants are responsible for the accident. If you have a motor vehicle accident, you can have a situation where not only is the defendant responsible for an accident but it could also partially be the plaintiff’s fault.
Just Because an Accident is Partially a Motorist’s Fault Does Not Mean that They’re Not Entitled to Compensation
Just because an accident is partially your fault doesn’t mean that you’re not entitled to recover damages under the law; it just means that instead of getting a 100 percent in terms of damages or an award, you may get 75 percent of what is awarded for injury, for damages or for harm. It’s up to a jury based on the law to determine or apportion fault for an accident and if a jury determines that a defendant is 75 per cent responsible for the happening of the accident and you’re 25 per cent responsible, then if that jury awarded $100,000, your $100,000 award would get cut down to $75,000 because you are 25 per cent responsible for the happening of the accident. So, there are a number of different scenarios that can be result in different apportionment.
A Person Must Sustain a “Serious Injury” To Be Eligible for Compensation in New York
Interviewer: Let’s say someone gets into an accident and there was a really serious collision but they don’t really seemed to be hurt and magically somehow, they’re okay but now they’re having pain or severe problems, does that mean that you don’t have a case or would things manifest later?
Ira Perlman: When we talk about motor vehicle accidents in the state of New York, there is a law that requires somebody to have a “Serious Injury” under New York law in order to be able to sue for pain suffering and damages under the law. The mere fact that you have extreme damage or extensive damage to a vehicle doesn’t necessarily mean that you meet the threshold or that you were seriously injured under the law. On the contrary, the mere fact that a vehicle doesn’t have extensive damage and there is very little damage doesn’t mean that someone in that vehicle did not sustain a serious injury. Quite often we see no correlation between the damage to a vehicle and the extent of somebody’s injury but one thing is certain and that is that under the law, you have to have a serious injury in order to sue for the pain and suffering monies.
Proving that a Serious Injury Has Occurred is a Technical Matter in Auto-Accident Cases
Serious injury, under New York law, is defined in a number of ways such as a broken bone, which is also known as a fracture. If you don’t have a broken bone or a fracture, then you could prove a serious injury by showing you had a dismemberment or significant disfigurement, don’t wish that on anyone, a loss of a fetus, and certainly a death automatically meets the threshold and you could also have permanent loss of a use of a body organ, member, function or system in order to prove the serious injury. Another way that you could show you have met the threshold and sustained serious injuries is to show you have a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system. The last way would be to show that you had a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person’s usual and customary daily activities for at least 90 out of 180 days immediately following the accident. So, it gets technical.