Plaintiff's Personal Injury:
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.