New York Personal Injury FAQ

Am I covered if I was a pedestrian involved in a car accident?

In New York, all pedestrians are covered under ‘no-fault’ law and can recover compensation for medical bills and lost wages – same as if they were the driver or a passenger in the vehicle.

Are all on-the-job injuries covered by workers’ compensation?

Most on-the-job accidents, whether caused by employer or employee negligence, are covered by workers’ compensation although there are some limits. If you or someone you know has been injured at work, contact an accident attorney to discuss the specifics of your situation. We are happy to offer you a FREE consultation.

Are there any requirements for operating a forklift in NY?

Yes, forklift training in New York is the law. In addition to OSHA mandates and guidelines, New York has their own training program and requirements for licensing which includes taking and passing a written exam as well as a driving test. More specifically:
– You must be at least 18 years of age
– You must get at least a 70% on the written exam to pass and get your license and show proper handling in the driving portion of the exam
– You are required to carry your forklift license (certificate card) with you at all times when operating a forklift
– If you are involved in any type of accident, you must take the test again BEFORE operating a forklift.
If you or a loved one have been involved in an accident involving a forklift contact our office for a FREE consultation. We will discuss the specifics as they relate to your personal situation.

Are bicyclists permitted to ride on sidewalks in New York?

Bicycle riding on sidewalks is allowed in New York, HOWEVER, there are some municipalities that have passed ordinances prohobiting bicycling on certain sidewalks. In these areas, the prohibition is usually posted. Cycling on sidewalks can cause conflict with pedestrian therefore it is not recommended except for very young cyclists with their parent or guardian.

Why Does Neglect and Abuse Occur in Nursing Homes?

While most incidents of elder abuse do NOT happen in nursing homes or other residential settings, several factors have been shown to contribute to neglect and abuse in nursing homes including:
• poorly qualified and/or inadequately trained staff
• inadequate staffing
• Leaving a patient to fend for him/herself, abandonment
• Failure to provide hygiene or nutrituion by ignoring a patient’s needs, neglect.

Does a visitor to a nursing home have any rights against the nursing home if he/she is injured there?

Yes, someone injured while at a nursing home can bring a civil claim against the nursing home under the law of “premises liability,” which addresses injuries sustained on premises that are owned or maintained by others as a result of a dangerous or unsafe condition on that property.
The injured party would probably proceed under a negligence theory, alleging that some negligence, either in the maintenance of the premises or in hiring employees, resulted in his or her injury.

Does lifting and repositioning of residents with mechanical devices in nursing homes diminish the rights or safety of the residents?

No. There are nursing home guidelines which are particularly sensitive to resident rights and safety. Nursing homes that lift and re-position residents with mechanical devices have found this practice to be safer for their employees and safer for their residents. These facilities have also found that resident dignity, independence, and security are improved. There might be some situations where the condition of the nursing home resident will not be compatible with using a mechancial lift; in those circumstances, it might not be possible to use a mechanical device.

Do I need a lawyer to handle my construction injury claim?

Yes, we believe that is the best way to proceed. Construction accident cases are very complex. Your claim may involve legal issues regarding liability, compliance with safety regulations, engineering, indemnity and the amount of damages. A lawyer who is experienced in the area of construction accident law will help ensure that you receive the legal remedy to which you are entitled.

Does NY law require bicyclists to wear helmets?

In New York State (NYS) all bicyclists under the age of 14 are required to wear safety certified bicycle helmets. Children one to four years old must also ride in specifically designed child safety seats. Children under one year of age are prohibited from being transported on a bicycle. A violation of the law is subject to a fine of up to $50.
Certain communities in New York have passed local ordinances regarding helmet use for bicyclists. For example, as of September 2013, Rockland and Erie counties require everyone riding bicycles, regardless of age, to wear approved bicycle helmets.

How can construction workers be exposed to silica?

Silica is one of the most common minerals in the earths’s crust. Glass, beach sand, silicone, and granite are all silica materials. Exposure to crystalline silica or quartz is the concern for construction workers who can be exposed to silica when cutting, grinding, drilling, sanding, mixing or demolishing materials containing silica.The size of the airborne silica particles determines the amount of risk. The smaller particles are of greater concern as they can be inhaled deep into the lungs where they can cause damage.

How do I know if I have a case after a slip and fall accident?

Different aspects of the law apply, depending on where and how your accident occurred. However, in ALL cases, it must be established that the property owner, agent or manager failed to keep the area where you fell in a safe condition. Law requires that the property owner knows of the dangerous or unsafe condition, or should have known, of the conditions.

How do I know if I have a personal injury case?

First, you must have suffered an injury to your person or property. Second, you should consider whether your injury was someone else’s fault. It is not always necessary to have a physical injury to bring a personal injury lawsuit. Some personal injury claims could be based on a variety of nonphysical losses and harms. In the case of an assault, for example, you do not need to show that a person’s action caused you actual physical harm, but only that you expected some harm to come to you. You also may have a case if someone has attacked your reputation, invaded your privacy, or inflicted emotional distress upon you.

How is a truck accident different than a car accident?

A truck accident has a greater probability of causing significant or fatal injuries than a car accident because of the weight and size of the truck. In most cases, a tractor trailer or big rig carrying a load of cargo may weigh in excess of 80,000 pounds, while a typical passenger vehicle weighs an average 3,000 pounds.

How is my case affected if I was injured by a product that came with a warranty?

If the warranty made representations about the performance or safety of the product, the product should have met these standards. If the manufacturer failed to meet its own standards for the product, that may help you show that the product had a design defect or manufacturing defect.

How is the auto insurance reduction applied after taking a defensive driving course?

In New York, when you complete the defensive driving course, you receive a certificate of completion that must be turned in to your auto insurance company. Once your proof of completion is received, a minimum 10% reduction will be applied to the base rate of the insurance premiums of your liability and collision insurance. This insurance reduction will remain in effect for three years and you may renew it after each 3-year period has ended.

How much is my personal injury case worth?

Your attorney can speak with you about this, but even attorneys can’t necessarily pinpoint what your case is worth until it is close to a resolution. Many factors, including the circumstances of the accident, the state of the drivers involved and the insurance companies influence the outcome. So do your medical bills, your loss of income and the nature of your injuries. An experienced lawyer can work with you to decide whether to pursue legal action and how to proceed.

I fell at someone’s private home and was injured. Is the homeowner responsible for my injuries?

Yes, the homeowner is responsible. If your injuries were the result of the homeowner’s negligence, it is most common to file a claim against the homeowner’s insurance.

If I modified a product and then was injured, would I still have a case?

Modifying a product can certainly change the outcome of a personal injury case. If you modified the product such that the changes made contributed to your injury, it could reduce or eliminate your recovery. If proven that the modification did NOT have an effect on your injury, it may not hurt your case. Contact a personal injury attorney to discuss the specific circumstances surrounding your situation.

If I slip and fall on a marble or granite sidewalk by upscale buildings, who is liable for the accident? And, will I be able to file a civil lawsuit if I sustain any injuries?

Accidents that occur on marble or granite walkways are similar to accidents that occur on concrete walkways – they may be the fault of the property owner. However, proving negligence on the part of the property owner can be difficult. Sometimes lawyers hire engineers in order to investigate the walkway where the accident took place. If the walkway does not meet standards and is damaged in anyway – for example, cracks, bumps ditches – you may be able to collect compensation for your injuries. Contact is if you are a victim of a slip and fall accident – together we will determine the best way to proceed.

If I was seriously injured by a tool I was using, can I recover from the manufacturer?

It depends. If the product was defective, whether due to a design flaw or manufacturing defect, then you may have a case. Also, if the manufacturer did not provide proper warning or instructions for use, you may have a case against them.

If a resident of a nursing home has no contract with the home, can he/she still sue the home for improper care?

Yes, nursing home residents (or their survivors) who are harmed due to improper care may recover damages, even without a contract. Residents might have a cause of action that arises out of:
1. Negligent Personal Supervision and Care
2. Negligent Hiring and Retention of Employees
3. Negligent Maintenance of the Premises
4. Negligent Selection or Maintenance of Equipment
Nursing home residents who have been abused can pursue damages for assault and battery.

I slipped and fell while working on a construction site. Can I recover for the injuries I sustained?

Maybe. A construction worker getting hurt on the job can have a solid case. If the construction site was being used for commercial purposes or if it was a multiple dwelling unit then you might be able tol bring a claim against the owner and any contractors on the job. You can NOT sue your employer; you are entitled to workers compensation so you would need to file a workers’ comp claim.

I was injured in a crash where a truck driver was at fault. Can I receive money for time I missed at work?

Yes. Your recovery in a personal injury action can include payment for income lost through missed work, and compensation for any loss of earning capacity resulting from the accident.

What is done during Discovery?

The NY and Federal Practice Rules provide a variety of tools that the lawyers may use to probe either the claims or defenses of the opposing party. Which tools are used, and how they are used, will vary depending on the issues involved in the particular case. The tools include:
• Demands for Production of Documents and Bills of Pariculars
• Depositions
• Independent Medical Exams (IME’s)
• Interrogatories
• Notices to Admit

What are common causes of medical malpractice?

Common causes of medical malpractice include:
• Anesthesia errors
• Birth injuries
• Hospital and/or emergency room errors
• Improper treatment of a disease
• Medication Errors
• Surgical errors

What are OSHA regulations?

OSHA (Occupational Safety and Health Administration) regulations, also known as standards, require employees to:
1. Maintain conditions and/or promote practices necessary and appropriate to protect workers on the job
2. Be familiar with and comply with standards applicable to their type of business
3. Ensure that employees have and use personal protective equipment when required for safety and health

What are some of the dangers associated with large trucks on the roadways?

There area a number of dangers associated with large trucks on the roads. Most specifically:
No-Zones – Large trucks have no-zones, or blind spots, that are located around the front, back, and sides of the truck. When a car is in the No-Zone, the truck driver is usually unable to see it. At these times, a large truck could turn into a passing car and a serious accident could result.
Squeeze Play – Tractor-trailer trucks need to swing wide to the left in order to negotiate a right turn. When truck drivers make wide right turns; they are often unable to see smaller vehicles directly behind or beside them. When a car cuts between the truck and a curb, the car can be caught in a squeeze, and a serious accident can occur.
Stopping Distance – Big rig trucks need a greater stopping distance than other vehicles. If there is not enough stopping distance between a car and a large truck, the car risks being involved in a rear-end collision.
“Off-track” – Occurs when a truck turns at high speed and swings into an adjacent lane unexpectedly. Unlike passenger vehicles, transport trucks require up to 40 percent more space to stop. Following too closely results in inadequate stopping distance between large trucks which then rear-end vehicles in front. It is not difficult to imagine the devastating results that occur when a car, van or SUV is hit from behind with over 10,000 lbs. of moving metal.

What are some signs that indicate nursing home abuse or neglect might be occurring?

If you are concerned about abuse or neglect in the nursing home, be on the lookout for the following:
– Unexplained bruises, cuts, burns, sprains, or fractures in various stages of healing
– Bedsores or frozen joints
– Unexplained venereal disease or genital infections; vaginal or anal bleeding; torn, stained, or bloody underclothing
– Sudden changes in behavior
– Staff refusing to allow visitors to see resident or delays in allowing visitors to see resident
– Staff not allowing resident to be alone with visitor.
– Resident being kept in an over-medicated state.
– Loss of resident’s possessions
– Sudden large withdrawals from bank accounts or changes in banking practices

What are the dangers of being exposed to asbestos?

Asbestos has been identified as a known human carcinogen, therefore asbestos exposure can be life threatening When asbestos fibers are breathed in, they may get trapped in your lungs and remain there for a long time. Eventually these fibers might accumulate and cause scarring and inflammation which can affect breathing and lead to serious health problems.
Studies have shown that exposure to asbestos may increase the risk of lung cancer and mesothelioma – which is a relatively rare cancer of the thin membranes that line the chest and abdomen. Asbestos exposure has also been found to cause gastrointestinal and colorectal cancers and higher risks for cancers of the throat, kidneys, esophagus and gallbladder.
What are the most common symptoms of lead poisoning?
The most common symptoms of lead poisoning are:
– Growth delay in children
– Behavioral problems in children
– Headaches
– Stomachache
– Damage to the reproductive system
– Harm to internal organs
– Diarrhea
– Lethargy
It has been estimated that over one million workers are exposed to lead poisoning daily at work. If you or a loved one are experiencing any of the above symptoms and believe it can be because of lead poisoning feel free to contact us for a FREE consultation.

What constitutes ‘exploitation’ in the nursing home setting?

Exploitation is defined as the wrongful use of an older person’s resources for profit or advantage. Some definitions refer simply to the misuse of an older person’s funds, property or person. To qualify as exploitation, resources must have been obtained without the older person’s consent, or obtained through undue influence, duress, deception or false pretenses.

What does motor truck cargo insurance cover?

Cargo insurance covers the cargo you are hauling for a shipper, up to a set limit pre-determined by you at the time you purchase the policy.

What does primary liability insurance cover?

Primary liability insurance protects truckers from damage or injuries to other people as a result of a truck accident. You select your limit of coverage at the time of purchase.

What happens if I slip and fall due to inadequate lighting in an apartment, store or other building?

If the owner or manger of the building or store was negligent in replacing a bulb or lighting fixture, or simply doesn’t provide adequate lighting, you could have a case. Inappropriate or inadequate lighting can just as easily be the cause of an accident as debris or liquid on the floor. If you find yourself in this situation, contact a slip and fall attorney right away for a FREE consultation.

Is there any other basis for personal injury liability besides negligence?

Yes. Some persons or companies may be held “strictly liable” for certain activities that harm others, even if they have not acted negligently or with wrongful intent. Under this theory, a person injured by a defective or unexpectedly dangerous product, for instance, may recover compensation from the maker or seller of the product without showing that the manufacturer or seller was actually negligent. Also, persons or companies engaged in using explosives, storing dangerous substances, or keeping dangerous animals can be strictly liable for harm caused to others as a result of such activities.

What is a failure to warn claim?

A manufacturer is responsible for making its products as safe as possible. When it cannot eliminate all risks, it must warn users and buyers of the dangers that exist. If it fails to provide adequate warnings, the person injured because of that failure may have a products liability claim based on failure to warn.
Warnings must be provided for any dangers likely to arise when the product is being used normally or in a way that could reasonably be anticipated, even it if is not the specific purpose for which the product was sold. A consumer who clearly misuses a product, however, cannot recover under a failure-to-warn theory or any other products liability theory. Also, warnings are usually not required for a product’s very obvious dangers.
The manufacturer’s duty to warn continues even after the product is sold. As new information becomes available, such as through consumer complaints or scientific testing, the manufacturer or seller must update its warnings to purchasers, either through direct contact or, if that is not possible, through mass media publication. Sometimes, the product will be recalled

What is a licensee?

Under common law principles, a licensee is a person who enters a premises with the landowner’s express or implied permission for his or her own purposes, and not for the benefit of the landowner. A social guest is an example of a licensee.

What is a Safety Program?

A safety program is a set of policies and work practices specifically designed to reduce hazards and assure a safe work environment. It incorporates regulations and guidelines as established by OSHA, the Occupational Safety and Health Administration. An effective safety program focuses on a commitment to monitor and improve safety on a regular basis.

What is asbestos?

Asbestos is a group of naturally occurring silicate materials that occur naturally in the environment as bundles of fibers which can be separated into thin, durable threads. These fibers are resistant to heat, fire and chemicals and do not conduct electricity which is why it is used in many industries. Asbestos can be found in products like floor tiles, roof shingles, cement and automotive brakes. Electrical, plumbing, acoustical, and structural insulation applications are also quite common. Asbestos fibers are released into the air when these products are disturbed.

What is aspiration pneumonia?

Aspiration pneumonia means that someone has vomited up their stomach contents and inadvertently inhaled it into their lungs. It occurs when an individual has eaten within a period of time before receiving anesthesia. If you are undergoing anesthesia be sure to follow the guidelines you are given with regard to eating and drinking before your procedure.
If you are receiving general anesthesia, the doctor is supposed to inflate a balloon which would prevent any stomach contents from coming up and out of your esophagus.
In certain procedures, if you are receiving twilight sedation which involves an IV with sedating medication there is no airway put into your mouth or throat in order to keep your airway open. If you do vomit during your procedure, and then your next breath inhales the stomach contents directly into your lungs, you will likely develop this medical condition known as aspiration pneumonia. The stomach contents are very acidic and begin to destroy the lining of the lungs. It also creates great difficulty for your lungs to exchange air when you breathe in and out. If not recognized at the time it happens, this can turn deadly.

What is Distracted Driving?

Distracted driving occurs any time you are “distracted” and not focusing on the primary task at hand – driving safely. The use of cell phones is a common distraction but keep in mind distracted driving occurs any time you take your eyes off the road, your hands off the wheel, and let your mind wander rather than focusing on the task at hand – driving safely.
Distracted driving is a serious problem – nearly 1/2 a million people are injured each year as a result of car accidents due to distracted drivers.

What is fall protection?

Fall protection is a system that is designed to protect personnel from the risk of falls when working at elevated heights. The standard trigger height for fall protection is 6 feet above a lower surface for construction applications. General construction industry safety requires fall protection at 4 feet above a lower surface. Construction managers and supervisors have primary responsibility for providing safe working conditions.

What is OSHA?

OSHA, the Occupational Safety & Health Administration, is part of the United States Department of Labor. It is the arm of the government responsible for promoting safety and health guidelines to reduce illness, injury and death on the job.
What is the best way to drive safely on roads that are flooding?
There are a number of things to consider when driving on roads that are flooding:
• Always drive over the highest part of the road
• Drive as slowly as possible through the flooded part of the road
• Drive-through using first gear in high revs with the clutch partially engaged (this minimizes the chances of water going up your exhaust)
• Never remove your foot from the accelerator
• Once you’re clear of the water, check your breaks in order to dry them out a little before continuing
What is the statute of limitations for a slip and fall injury in New York?
In New York, the statute of limitations for a slip and fall injury is three years from the time of the incident. This means that you have up to three years to file a lawsuit. Once the time period is passed, you can no longer file a claim – the time for filing has expired.

What laws exist in New York to protect nursing home residents who are neglected or abused?

Section 2801-d of the public health law establishes a private right of action against a nursing home for a deprivation of a “right or benefit” created by a state of federal statute, code, rule or regulation. These rights and benefits relate to such things as bed sores, inadequate nutrition, mental and physical abuse, physical and chemical restraints, inadequate supervision and failure to provide adequate and appropriate medical care.

What must be proven in a products liability case?

Product liability cases may involve several legal theories, including negligence, “strict liability”, and breach of warranty. Each of these theories has its own distinct elements that must be proven:
Negligence:
Negligence focuses upon the product maker’s conduct. To prevail, one must show that the maker of the product failed to use ordinary or reasonable care in designing, manufacturing, or selling the product, and that such failure on the part of the manufacturer was a cause of the person’s injury.
Strict Liability:
The focus here is on the product itself rather than the conduct of the manufacturer or suppliers. Generally speaking, to prevail under this situation, one must show a defect in the design, manufacturing, or marketing of a product which made the product “unreasonably dangerous.” It must be shown that the product defect was a cause of the injury to the person bringing the claim.
Breach of Warranty:
A warranty is essentially a promise by the manufacturer that its product will have certain characteristics or perform in a certain way. To prevail in a breach of warranty claim, one must show that the product did not live up to the promise or warranty made by its manufacturer, and as a result was a cause of the person’s injury.

What rights do nursing home residents have?

The Medicare program requires nursing homes receiving funding to be free from verbal, sexual, physical and mental abuse, and any physical or chemical restraint that is imposed for purposes of discipline or convenience, rather than to treat a medical condition. In some instances, due to a medical condition, restraint may be used upon written order of a physician. In that situation, the doctor must specify the duration and circumstances under which the restraints are to be used.
If a nursing home isn’t regulated by the medicare program, residents will still have rights under state laws.
What Should I NOT do if I was injured in a car accident?
If you were in a car accident in New York, there are a number of things you should NOT do:
• Do NOT take responsibility for the accident with either the police or the other individuals involved
• Do NOT sign any documents or agree to pay any damages
• Do NOT downplay your injuries or say you are ‘fine’ at the scene
• Do NOT give a statement to the other driver’s insurance company. Offer only the very basics.
• Do NOT take money for your injuries or settle until you have finished treatment
• Do NOT hire your ‘family’ attorney to handle your case. Instead, seek the advice of a personal injury attorney

What types of damages might be sought in a products liability lawsuit?

Generally speaking, one injured due to a defective product may seek compensation for medical expenses,
physical pain and suffering, mental anguish, disfigurement, physical impairment, loss of earning capacity
and property damage. In certain cases, one may also be entitled to seek punitive damages.
A spouse or child of the victim may seek compensation for loss of consortium.
In cases involving death, additional damages may be recoverable as well.
If you or a loved one have been injured by a defective product, contact us for a free evaluation.
We’re here to help you receive the compensation you deserve.

What types of surfaces and obstructions often lead to slips and falls?

Slips and falls are often the result of one of the below surfaces and/or obstructions:
– Defects in pavement
– Slips caused by snow and ice
– Slips resulting from wet floors
– Trips on torn, raised or worn carpeting
– Trips over electrical cords or wires
– Falls due to insufficient lighting
– Falls from holes and depressions

Who is responsible for injuries I sustained after my car hit a pothole?

An injury caused by a pothole may be the fault of the state, county or town responsible for that road. Sometimes the fault lies with a private construction company who worked on the road. If you are suffering from an injury caused by improper maintenance or repair of a road or highway, contact a personal injury attorney to discuss your situation.

Who is responsible when a product causes an injury?

Manufacturers, wholesalers and sellers may all be responsible when a product injures someone. If the product is defective or it presents an unreasonable danger, and the defect or danger causes the injury, the injured party may have a case. The defendants can be found liable under theories of negligence, strict liability or breach of warranty.

Why is a traffic accident involving a commercial truck more likely to cause injury than one involving passenger cars?

A typical fully-loaded large commercial truck can weigh 80,000 pounds or more, while the average passenger automobile weights approximately 3,000 pounds. Due to this disparity in size, and the basic laws of physics, any collision between a commercial truck and another vehicle is likely to result in serious, even fatal, injuries.