DRIVERS AND PASSENGERS INJURED IN MOTOR VEHICLE ACCIDENTS IN NEW YORK
Unfortunately, motor vehicle accidents happen every day. Thousands of people are injured and killed. That is why you need a hard-working motor vehicle accident attorney in New York. Since 1924, New York State law has mandated that every owner of a motor vehicle operated on the roads of the State is liable and responsible for death, personal injuries and property damage caused by the negligent operation of a motor vehicle by a driver of that vehicle in most circumstances. The enactment of this law is basically meant to ensure that innocent victims of motor vehicle accidents have recourse and the ability to seek financial compensation for the injuries and damages from financially responsible persons, companies and/or businesses which own the vehicle. In other words, even if the owner is not the one who is behind the wheel when the crash occurs, the owner whether it is an individual, company, business or entity will still be responsible for the wrongful actions of the driver of its vehicle. Furthermore, a business who hires an employee who fails to perform his functions and duties in a proper manner which results in a motor vehicle accident will also be held accountable and responsible due to the wrongful conduct of said employee which caused a motor vehicle accident. Of course, the driver of a motor vehicle will also be responsible for his or her failure to use reasonable care while driving.
Failure to use reasonable care while driving a motor vehicle may be due to the following, among other things:
- Reckless driving
- Improper lane change
- Aggressive driving
- Failure to yield the right-of-way
- Cell phone use while driving
- Text messaging while driving
- Drunk driving or driving while under the influence of drugs
- Lack of sleep
- Simply not paying attention
- Eating/drinking in the vehicle, causing the inattention of the driver
- Failure to obey traffic lights and other traffic signals
- Failure to adjust driving to the prevailing weather conditions outside
- Failure to heed to specific roadway conditions, such as construction or other hazards on the roadway
Other Potential Responsible Parties
Additionally, individuals, companies, businesses, employers and/or other entities other than the driver of a motor vehicle may also be negligent for actions or the failure to act including but not limited to the following:
- Failure to properly train an employee who is operating a particular vehicle
- Failure to properly maintain or repair a vehicle prior to its use on the public roadway
- Failure to properly inspect a vehicle prior to its use on the roadway
- Negligent hiring of an employee who is driving for the employer
A motor vehicle accident can cause devastating injuries or even result in the death of a loved one. Often, injuries can be chronically disabling resulting in hospital treatment, in-patient admissions, operative procedures and surgeries, rehabilitation, therapy, lost income, lost future benefits, physical pain, emotional suffering, and permanent life-long disability.
Our law offices have been dedicated to representing the victims of motor vehicle accidents for over 33 years whether those accidents have occurred in the 5 boroughs or the various Counties, Towns, and Villages throughout New York State (as well as outside the State of New York). Our experience and dedication to representing New York motor vehicle accident victims have earned us the legal expertise and financial resources to pursue our client’s claims and cases with the most effective representation. We are committed to doing everything in our power to make sure we achieve full justice for you and your family as well as the most desirable outcome to benefit you and your loved ones.
Motor Vehicle Accident Attorney New York – Rules of the Road
The laws controlling drivers of motor vehicles involved in motor vehicle accidents will be found in the Vehicle and Traffic Law of the State of New York, as well as certain regulations which have been enacted by the City of New York within the Department of Transportation Traffic Rules. The Vehicle and Traffic Law is applicable on public highways, private roads open to public motor vehicle traffic and many of the parking lots which are open to the public. These rules of the road apply to all vehicles unless otherwise provided under the law.
The statutory rules of the road are applicable and enforced throughout the state unless express authority has been given to local government and designated authorities, such as the City of New York to enact its own additional ordinances, rules or regulations. Therefore, the City of New York may enact local ordinances and rules relating to traffic for the purpose of regulating motorists, pedestrians, and bicyclists on the roadways or highways.
Generally speaking, under the law it is the duty of every driver of a motor vehicle to use reasonable care, taking into account the actual and potential dangers existing from weather, road, traffic and other conditions. Each motorist is under a duty to maintain a reasonably safe rate of speed, as well as to have his or her motor vehicle under reasonable control and to keep a proper lookout under the circumstances then existing to see and be aware of what was in his or her view, and to use reasonable care to avoid an accident. Therefore, a driver is charged with the duty to see that which under the facts and circumstances he or she should have seen by the proper use of his or her senses and if it is found that a motorist did not observe that which was there to be seen, that motorist may be found negligent in failing to look or is not looking carefully.
Undoubtedly, there are so many rules, regulations, and statutes which may apply to any given motor vehicle accident situation, only a thorough and complete review of the particular accident case will determine the necessary elements of proof and all of the particular laws which apply to the situation at hand.
It is important to realize that even when liability has been proven against the owner and/or operator of a motor vehicle in a motor vehicle accident case, the inquiry does not end there under the law in court. The reason for this is that in the State of New York, people who have been the victim of a motor vehicle accident may also have the duty to act reasonably as well. This is especially true if you are operating a motor vehicle as well notwithstanding that another motorist caused an accident. Therefore, even if a jury has made a determination that a defendant driver was negligent and responsible for causing an accident, that same jury will have the responsibility to determine whether or not you, as a driver involved in the accident as well, bear a percentage of liability or responsibility for contributing to the happening of the motor vehicle accident.
In plain English, this means that a jury has the capability of finding a defendant driver only partially responsible for an accident whereby you, as a driver, may bear the remaining responsibility for the accident. For example, if a jury finds that the defendant driver and the plaintiff driver were equally at fault, then they would report back that each party was fifty (50%) percent responsible. However, if a jury found that one party was more at fault, the jury would assign a higher percentage to that party and a lower percentage to the other party, with the total of the percentages equaling one hundred (100%) percent.
Therefore, any combination of percentages between the parties is possible as long as the total of one hundred (100%) percent is reached. Very importantly, if the plaintiff driver is found to be partially at fault for causing the accident, then whatever amount of money is awarded to the plaintiff driver for his or her injuries, harms and losses will also be reduced in proportion to the percentage of liability found against the plaintiff driver. Therefore, if a jury awarded a plaintiff driver $100,000.00 for his or her injuries, that award would have to be reduced to $50,000.00 if the same jury found that the plaintiff driver was fifty (50%) percent responsible for the happening of the accident.
Obviously, it would be an extremely rare situation if a passenger was found to be negligent inasmuch as a passenger has no responsibility with respect to the operation of a vehicle and was not driving, and therefore, did not contribute any fault issues in terms of responsibility for the accident. However, a passenger may have a responsibility to utilize a seatbelt under New York’s seatbelt laws which could result in a jury finding that a passenger did not use a seatbelt, and if so, certain injuries and damages could have been avoided. In this case, a jury may award significantly fewer damages to a passenger who was not wearing a seatbelt as required under the law.
Things You Should Do after a Motor Vehicle Accident
- Insist that a report be filed with the police, sheriff or highway patrol
- Obtain the name, address, insurance information, vehicle license number and driver’s license number of any and all other persons involved in the accident
- Additionally, get the names, addresses and telephone numbers of all witnesses
- If possible, photograph the accident scene including all cars involved (before repairing) and any visible injuries (cuts, bruises, etc.)
- Do not talk to anybody about the accident or injuries other than your doctor or lawyer, especially not to an insurance company representative or adjuster who represents a person or potential party adverse to you
- Sign nothing without consulting an attorney or law offices such as ours. Truthful statements made in an attempt to be helpful can easily be misrepresented and turned against you
- Seek medical attention and tell your physician or surgeon all of your symptoms and complaints even if the symptoms or complaints may seem minor to you at the time
- Consult our office or another attorney for legal advice immediately
Things You Should Not Do after a Motor Vehicle Accident
- Do not permit any lawyer or their representative whether it be an investigator or anyone else to approach you or your family at this vulnerable time for the purpose of having you represented by them inasmuch as solicitation in this manner is unethical and illegal (be aware of people approaching you or telephoning you for this purpose)
- Do not accept any cash offering to sign on with a particular personal injury lawyer or law firm as such conduct is also illegal and unethical
- Do not give any insurance company a recorded or written statement until you have determined how you wish to proceed. It is important to be aware of the extent of your rights and how your actions from this point on can effect those rights
- Do not sign any release or waiver or any other document until you have spoken to our office or another attorney who concentrates in this area of the law. You may feel pressure to sign something from an insurance company but it is your right to explore your options before you do anything. Just make sure that you do take appropriate action within a short period of time so that you comply with all time limitations in order to preserve any claim you may have
- Do not accept any check from your insurance company without having obtained legal advice and carefully weighing your options
- Do not speak to anybody about your accident or your injuries without verifying who that person is or determining who that person represents in connection with the accident
- Do not rely on legal advice from a non-lawyer who does not have the knowledge or expertise to give you an opinion based on the circumstances surrounding your situation
Medical/Health Expenses, Lost Earnings and Other Expenses Are Covered Through “No-Fault” Benefits
Regardless of your right to sue all responsible parties who caused or contributed to a motor vehicle accident in a court of law, there have been laws enacted in the State of New York, commonly referred to as “No-Fault” that provide separate benefits for motor vehicle accident victims which allow for immediate coverage relating to medical, remedial and certain health care expenses including lost earnings as defined by the State of New York insurance law.
Basically “No-Fault” also known as personal injury protection (PIP), is designed to promptly pay “Basic Economic Loss” coverage to the driver and all passengers injured in a vehicle because of its use or operation in the State of New York.
The purpose of No-Fault insurance is to restore individuals hurt in motor vehicle accidents to health and productivity as swiftly as possible. Once again, it is important to realize that these available benefits relating to “Basic Economic Loss” coverage are separate and apart from any right or ability you have to bring a lawsuit in court seeking money damages for pain, suffering and loss of enjoyment in life due to debilitating and chronic injuries which relates to a “non-economic loss” resulting from a motor vehicle accident as further discussed in the next section below.
This No-Fault/PIP coverage, also known as “Basic Economic Loss” is available for up to $50,000.00 per person for the following combined items:
(1) All necessary expenses incurred for:
(i) Medical, hospital, surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services;
(ii) Psychiatric, physical therapy (provided that treatment is rendered pursuant to a referral) and occupational therapy and rehabilitation;
(iii) Any non-medical remedial care and treatment rendered in accordance with a religious method of healing recognized by the laws of this state; and
(iv) Any other professional health services; all without limitation as to time, provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury.
(2) 80% of lost wages from work, up to a maximum payment of $2,000.00 per month for up to 3 years from the date of the accident; subject to statutory offsets for New York State Disability, Workers’ Compensation and Federal Social Security Disability benefits;
(3) All other reasonable and necessary expenses incurred, up to $25.00 per day for no more than 1 year from the date of the accident (e.g., household help and transportation expenses to/from medical treatment resulting from the auto accident); and
(4) A $2,000.00 death benefit (in addition to the $50,000.00 basic no-fault limit), payable to the estate of a person eligible for no-fault benefits who was killed in a motor vehicle accident.
However, under most insurance policies, a person will be ineligible for no-fault benefits if:
- Driving while intoxicated or impaired by use of a drug that contributes to the accident
- Intentionally causing his or her own injuries
- Riding an all terrain vehicle (ATV) or a motorcycle as operator or passenger (a pedestrian struck by a motorcycle or ATV is covered)
- Injured while committing a felony
- Injured while in a vehicle known to be stolen
- An owner of an uninsured vehicle
In order to qualify for this No-Fault benefit coverage, certain documentation relating to No-Fault must be submitted to the appropriate insurance carrier responsible for the No-Fault coverage within 30 days of the motor vehicle accident. This documentation, once it is properly executed, will trigger the no-fault coverage you are entitled to. Eventually, the insurance company furnishing you with No-Fault benefits will send you for what is referred to as an “Independent Medical Examination” (IME) to determine whether you still need medical treatment. Of course, this IME is often anything but independent and the examinee physician chosen by the insurance company will indicate that you are no longer in need for further treatment, thereby enabling the insurance carrier to cut you off from further benefits. Once you have been cut off or denied further No-Fault benefits, you are then free to utilize any private health insurance you may have, if available.
Of course, there are many nuances and other variables that come into play under the No-Fault law and all of the different coverage available, including the limitations and exceptions associated therewith. Only an experienced attorney practicing in this area of the law can guide you and provide you with an appropriate opinion. We urge you to either contact our office or any other competent counsel for this purpose.
What Needs to Be Proven in Order to Recover Monetary Damages for Pain and Suffering in a Lawsuit ?
Irrespective of any right you have to receive immediate coverage for your medical expenses and other coverage described as “Basic Economic Loss” above under No-Fault, the law in New York State requires you to prove that you have sustained a “serious injury” (a legal definition) before you can collect money damages in a lawsuit for pain, suffering and the debilitating and chronic effects of injuries sustained in a motor vehicle accident. In this regard, the State of New York through statute(s) enacted by legislation and case law (Court decisions) has made clear that it intends to strictly enforce the threshold for serious injury so as to limit the number of lawsuits involving motor vehicle accidents. Obviously, the intent is to keep minor personal injury cases out of Court.
Our law offices have fought and will continue to fight to protect all of the rights of the victims we represent in order to pursue damages for pain and suffering and the full extent of our client’s injuries. It is for this reason that we urge all of our clients to make sure that proper care and treatment is received from the onset of any complaints or symptoms and that all injuries including any symptoms and complaints are fully documented by any treating health care provider from the inception of treatment.
The number, frequency and duration of your treatments will certainly have an impact on your ability to meet the threshold for a serious injury in the State of New York.
Section 5102(d) of the New York State Insurance Law defines 8 standards in order to meet the “serious injury” threshold. Therefore, in order to pursue a lawsuit for “non-economic loss” (pain and suffering) a person must satisfy at least one (1) of the following definitions:
- Personal injury which results in death;
- Dismemberment or significant disfigurement;
- Loss of a fetus;
- Permanent loss of use of a body organ, member, function or system;
- Permanent consequential limitation of use of a body organ or member;
- Significant limitation of use of a body function or system; or
- 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 such persons’ usual and customary daily activities for not less than ninety (90) days during the one hundred eighty (180) days immediately following the occurrence of the injury or impairment.
You will notice that the law defines items 1-4 clearly and makes those items relatively easy to determine. However, items 5-8 leave room for debate and argument. In many cases, the ability of a person to meet the serious injury standard depends on meeting one of the requirements listed in items 5-8.
Obviously, talking to our office will help you comprehend these definitions with more clarity. Unfortunately, the Courts have made determinations and given rulings which further define these definitions through a process known as “case law”. In this regard, proving that you have suffered a serious injury in the eyes of the Court requires your attorney to review your medical files and consult with your doctors. As a result of your various injuries and the diagnoses given by your doctors and any other health care providers, we will be able to analyze your injuries in conjunction with the various case law that exists to find legal support in order to prove that your ongoing injuries meet the legal threshold for “serious injury” or be able to tell you that in our opinion your injuries do not meet the legal threshold enabling you to bring a lawsuit for pain and suffering.
The Court will look at several key issues in assessing an injury such as follows:
- Do the damages meet one of the 8 standards listed above?
- Were there pre-existing injuries that the individual suffered from and if so how do those pre-existing injuries affect the injury that is being claimed?
- What is the nature of the injuries and their impact on the Plaintiff?
- Was there any gap in treatment where somebody did not go to the doctor or any other health care provider for a significant period of time and if so why?
- Are any of the physical limitations in terms of body function quantified and documented by any of the treating health care providers?
- Are the medical records that are being used to prove a serious injury certified or reliable enough for the Court to utilize in making this determination?
Your lawyer must guide you through this process and help prepare your case in order to prove all of the necessary elements of a “serious injury”. As lawyers, we cannot perform a miracle or even attempt to show that which does not exist. If you lack an injury, we cannot prove that you have one. However, there are many motor vehicle and/or pedestrian accident cases which do fall in a gray area where having a good attorney will make a big difference in how your case is presented and received by the Courts.
What If I Have No Medical Insurance or Coverage In Order to Pay for Medical Care and Treatment?
As we have indicated above, if you have been involved in any type of motor vehicle accident whether as a driver, passenger or even a pedestrian, your medical bills will be covered through No-Fault insurance. Therefore, it is not necessary for you to have private health insurance or coverage from any other source. If you do not have a doctor or any other health care provider and you are not sure where to turn or who to go see, certainly we can assist you in obtaining immediate and excellent medical care and treatment in order for you to get better. These health care providers will receive payment for any medical services rendered to you directly from the No-Fault provider (insurance company) which is responsible for paying all of your medical expenses under No-Fault law as a result of the motor vehicle accident.
What Can I Expect If I Call Your Office for Help?
You will be put into direct communication with either Mr. Perlman or Mr. Rosen who will speak to you directly during this time of need and uncertainty. You will also receive straightforward answers from Mr. Perlman and Mr. Rosen who have been battling insurance companies for their entire careers on behalf of their injured and disabled clients. You will never be charged any fee or asked to pay us any money in order to talk to us so that we can determine whether you have a claim or lawsuit. We don’t receive any compensation unless you are compensated. And most of all, remember, we are here to help you and will be at your side through the entire process.