Plaintiff's Personal Injury:

Automobile Accidents * FELA cases * Premises liability * Construction Accidents

Generally, in order for an injured party to prevail on their negligence causes of action under New York law they are required to prove the following elements: (1) defendant's duty to plaintiff; (2) breach of duty, and; (3) injury to plaintiff. Alfaro v. Wal-Mart Stores, Inc. , 210 F.3d 111, 114 (2d Cir. 2000); see also, Akins v. Glens Falls City School District , 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 648 (1984). Simply put, an injured party must prove that the injuries and damages sustained were proximately caused by the defendant's negligence.

Automobile Accidents

As a general concept, in order for an injured party to prevail on their negligence causes of action under New York law they are required to prove the following elements: (1) defendant's duty to plaintiff; (2) breach of duty, and; (3) injury to plaintiff. Simply put, an injured party must prove that the injuries and damages sustained were proximately caused by the defendant's negligence.

In New York, automobile accident cases are governed by Sections 5101 through 5108 of the New York State Insurance Law which sets forth a no-fault system designed to compensate victims and other injured parties. Basically, the no-fault insurance law provides first-benefits for basic economic losses (i.e., lost wages, medical expenses, etc.) up to $50,000, regardless of who caused or created the accident, hence the term "no-fault".

However, it is important to note that the Insurance Law prevents a party from recovering for non-economic losses (i.e., pain and suffering) unless the injured party is able to prove he or she suffered a "serious injury" which is defined in Insurance Law section 5102(d). An exception to this rule is that if plaintiff suffers an economic loss greater than the basic economic loss, an action may be brought to recover this additional loss, regardless of whether or not the claimant suffered a serious injury.

For purposes of Insurance Law section 5102(d), a serious injury is defined as: (1) death; (2) dismemberment; (3) significant disfigurement; (4) fracture; (5) loss of a fetus; (6) permanent loss f use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system, and; (9) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts that constitute such person's usual and customary daily activities, for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.

In order to be considered eligible for first party no-fault insurance benefits it is absolutely imperative that an insured or covered party notify his insurance carrier within thirty (30) days of the accident or, if hospitalized and/or severely disabled, as soon as practicable. Failure to notify the insurance carrier in a timely manner could result in your being denied first party no-fault benefits.

The applicable statute of limitations for filing a lawsuit to recover for non-economic damages (i.e. pain and suffering) or an economic loss greater than the basic economic loss is three (3) years from the date of the accident.

Accordingly, you may wish to consult with an attorney as soon as possible following your accident to ascertain what time periods are controlling and the best manner in which to seek recovery for any injuries or damages which may have been suffered.

Construction Accidents

Under New York Workers' Compensation Law section 11, an employer cannot be sued for liability or injuries which arise out of and in the course of the employment by the employee or anyone on his or her behalf once an employer obtains workers' compensation insurance for the payment of benefits to its employees.

It should be noted, however, that this does not preclude an injured worker from initiating an action against another responsible party. Indeed, under a common law negligence or statutory-based cause of action, an injured employee can bring a lawsuit against any responsible party (other than an employer with Workers' Compensation coverage). Again, an injured employee would have to prove the following elements: (1) that the party owed a duty of care to the employee; (2) that the party breached its of duty of care to the employee, and; (3) that the employee suffered an injury. Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir. 2000); see also, Akins v. Glens Falls City School District , 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 648 (1984). Simply put, an injured employee would have prove that the injuries and damages sustained were proximately caused by the defendant's negligence.

Quite often, the provisions of the New York Labor Law will apply. For instance, Labor Law section 200 sets forth the law with regard to safe place to work, while Labor Law section 240(1) sets forth the law with regard to ladders, scaffolding and other elevated mechanisms. Section 240(1) also covers construction, excavation and demolition operations. Section 241-a addresses failures to cover stairwells and elevator openings. Other applicable statutes such as the New York Code of Rules and Regulations or the federal Occupational Safety and Health Agency (OSHA) guidelines, to name just a few, may provide further liability and means of redress to employees injured on the job or at a construction site.

Accordingly, you may wish to consult with an attorney as soon as possible following your accident to ascertain whether you are eligible to seek recovery for any injuries or damages which may have been suffered at work.

Premises Liability

The prevailing case law in this jurisdiction with regard to the proof needed to establish a negligence claim in a "slip and fall" type case is as follows. Simply, a plaintiff must demonstrate that the defendant either created the condition which caused the plaintiff's fall, or had actual or constructive notice of it. Uhlich v. Canada Dry Bottling Company of New York , 305 A.D.2d 107, 758 N.Y.S.2d 650 (1st Dept. 2003); Nicklas v. Tedlen Realty Corp. , 305 A.D.2d 385, 759 N.Y.S.2d 171 (2nd Dept. 2003); Graubart v. Laro Maintenance Corp. , 244 A.D.2d 457, 664 N.Y.S.2d 116 (2nd Dept. 1997); see also, Katsoris v. Waldbaum , 241 A.D.2d 511, 663 N.Y.S.2d 984; Kraemer v. K-Mart Corp. , 226 A.D.2d 590, 641 N.Y.S.2d 130; Paicquadio v. Recine Realty Corp. , 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795.

To constitute constructive notice, a defect must be visible and apparent, and must exist for sufficient length of time before the accident so as to permit the property owner or managing agent to discover and remedy it. Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774; Graubart v. Laro Maintenance Corp. , supra.

Conversely, the courts will often find in favor of the property owner, landlord or similarly situated person if it can be established that said person(s) did not create the condition which caused the plaintiff's fall and lacked actual or constructive notice of it. Hughes v. Carrols Corp. , 248 A.D.2d 923, 670 N.Y.S.2d 610; Tucci v. Stewart's Ice Cream Company , Inc., 296 A.D.2d 650, 746 N.Y.S.2d 60 (3rd Dept. 2002); Van Alstine v. Kentucky Fried Chicken of California , Inc., 292 A.D.2d 737, 739 N.Y.S.2d 763 (3rd Dept. 2002). Usually, defendant landowner has the additional burden of establishing as a matter of law that it maintained its premises in a reasonably safe condition. Leone v. County of Monroe , 284 A.D.2d 975, 726 N.Y.S.2d 900 (4th Dept. 2001); see also, Basso v. Miller , 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; Antinoro v. Tops Markets , 195 A.D.2d 972, 602 N.Y.S.2d 567.

What safety precautions may reasonably be required of a landowner is almost always a question of fact for the jury ( Nallan v. Helmsely-Spear , 50 N.Y.2d 507, 520 n. 8, 429 N.Y.S.2d 606, 407 N.E.2d 451), and the question of what, if any, warning is reasonable under the circumstances is usually a question of fact for the jury ( Buley v. Rexnortd Process Machine Division , 105 A.D.2d 965, 482 N.Y.S.2d 104). V an Alstine v. Kentucky Fried Chicken of California, Inc. , 292 A.D.2d 737, 739 N.Y.S.2d 763 (3rd Dept. 2002).

It should also be emphasized that a plaintiff may prove the claim that a defendant is responsible for the condition that caused him to slip and fall without direct evidence. Healy v. ARP Cable , Inc., 299 A.D.2d 152, 753 N.Y.S.2d 38 (1st Dept. 2002). Such claims may be substantiated with circumstantial evidence sufficient to create an issue of fact as to whether the defendant created the condition. Id. at 154. Simply, it is enough that plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred. Schneider v. Kings Highway Hospital , 67 N.Y.2d 743, 744, 500 N.Y.S.2d 95, 490 N.E.2d 1221; Ingersoll v. Liberty Bank , 278 N.Y. 1, 7, 14 N.E.2d 828.

FELA (Federal Employer Liability Act)

The FELA was first enacted in 1906 to create a remedy for injured railway workers. Subsequent amendments further expanded the scope of the Act to the point where the essential elements of an FELA claim currently are as follows: (1) the defendant railroad company must be a "common carrier" in interstate or foreign commerce; (2) the plaintiff railroad worker must have been injured or killed in the course of his employment by defendant railroad; (3) negligence or a statutory violation by the defendant railroad must play a part in causing the injury or death.

Where these elements have been established the plaintiff worker or his duly authorized representative (i.e. estate executor, legal guardian, etc.) may seek compensation for the injury or death pursuant to the prevailing standards established by the courts of the jurisdiction in which the case is heard. However, where a worker's own negligence contributes to his or her injury or death, the recovery may be reduced proportionately under the principle of comparative negligence.

For practical purposes, the first element (i.e. the defendant railroad company must be a "common carrier" in interstate or foreign commerce) is usually conceded by the LIRR and acknowledged by the Federal and State courts in New York, leaving the remaining two elements to be proven by the plaintiff worker.

Accordingly, the next inquiry should center on whether or not the worker was injured in the course of his employment. Again, since the FELA covers only employees suffering an injury while employed by the railroad, any prospective claimant must still establish that at the time of his injury an employment relationship existed between himself and the railroad and that he was acting within the scope of that relationship. This element can be satisfied by establishing that the employee was engaged in work which was in furtherance of or substantially affected the activities of the railroad. As most work done for a railroad company can be said to be in furtherance of or affecting the railroad's activities, it is generally assumed that all railroad employees are covered by the Act. It should be noted that the general purpose of the FELA is to enlarge the remedy of railroad workers injured during the course of their employment, and any activity which necessarily exposes said workers to dangers and hazards incident to their employment is ordinarily covered by the Act.

What about independent contractors engaged by the railroad, are they covered by FELA ? Not necessarily. Unless an independent contractor is considered a "borrowed servant" or "joint servant", he is not covered by the FELA. But this determination depends in large part upon the particular facts and circumstances of the case, with no one factor being determinative.

Yet another element which must be established by an FELA claimant relates to proving negligence or a statutory violation of a safety regulation by the defendant railroad. Here, the FELA imposes liability on a railroad for ". . . injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier (railroad), or by reason of any defect or insufficiency, due to its negligence, in its car, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment." While negligence is not specifically defined in the Act, the basis for a liability finding against the railroad can be - among other things - a breach of a statutory safety requirement or a breach of a general duty of due care. While the degree of negligence which must be established to support an FELA action has sometimes been characterized as "slight" or "minimal," the ultimate burden of proving this and the other listed elements rests entirely upon the shoulders of the FELA claimant.

The last requirement a FELA claimant must establish is that he suffered a physical, bodily injury or death. The FELA does not redress claims for wrongful discharge, defamation of character, wrongful discharge or other non- tortuous conduct which does not result in physical injury to the claimant. The injury must be physical or, at the very least, be incident to a physical component. Hence, there can be no recovery where a claimant establishes only mental injury or distress.

From a procedural aspect FELA actions must generally be commenced within three years from the day the cause of action accrues. In most cases actions accrue on the date of the accident; however, other time constraints come into play in cases of wrongful death. Accordingly, it is imperative that claimants or their representatives act diligently to ensure that their claims are asserted in a timely manner.

Other procedural considerations relate to how and where an FELA action is commenced. While the FELA is a federal statute, an action may be brought in any federal or state court in the district of the railroad's residence or principal place of business, or in which the claimant resides and the railroad is doing business at the time of the commencement of the action. Selecting the appropriate forum or venue for commencement of the action is a decision normally made by claimant after consulting with his attorney. There are a host of considerations which must carefully be weighed when selecting the venue, as it may impact greatly upon the progress and eventual outcome of the case.

The foregoing is merely a brief overview of the FELA statute and the rights and remedies it confers upon injured railroad employees. It goes without saying that the successful prosecution of any viable FELA claim is largely dependent upon the particular facts of the case, the availability of witnesses and evidence to support the claim and the experience of trial counsel in bringing the case to trial. Nevertheless, any FELA claim can be greatly enhanced by a basic understanding of the core concepts addressed herein, and further inquiry into the subject matter will further benefit the diligent.

Contact Follow Us

Contact Information

Rayano & Garabedian, P.C.

Central Islip Location:
267 Carleton Ave.,
Suite 222,

Central Islip, NY 11722
View Map

Sag Harbor Location:
39 Division Street
Sag Harbor, NY 11963
View Map


Phone: (631) 297-8360

Website:

Disclaimer

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

© 2016 All Rights Reserved.