Articles Posted in Glossary of Personal Injury Law Terms

Owners of real property owe a duty of care to people invited onto their property under the legal theory of “premises liability,” a common-law doctrine derived from the theory of negligence (i.e., the absence of ordinary care). Premises liability generally holds that a property owner has a duty to maintain their property in a reasonably safe condition, and may be liable for injuries caused by a hazardous condition. The “trivial defects” doctrine is an important exception to New York premises liability. It holds that a property owner is not liable if the defect, when examined in light of the unique circumstances of the site, is not objectively dangerous. The New York Court of Appeals has held on several occasions that this is a question of fact best left to a jury. Courts in New York’s 9th Judicial District, whose jurisdiction consists of Westchester, Dutchess, Orange, Putnam, and Rockland Counties, have considered several claims recently involving the trivial defect doctrine, and have often sided with plaintiffs.

In a negligence claim, a plaintiff has the burden of proving four elements. First, the plaintiff must establish that the defendant owed a duty of care, either to the plaintiff or the general public. Second, they must demonstrate that the defendant breached this duty of care. Third, they must show that this breach was the cause-in-fact of the plaintiff’s injuries. Finally, the plaintiff must substantiate measurable damages resulting from their injuries.

Premises liability involves a particular duty of care, from a property owner to individuals who have been invited onto the property. In some situations, such as the “attractive nuisance” doctrine, this duty of care also extends to trespassers. A plaintiff must show that the property owner knew or should have known about a defect or hazard on the property, and that they breached their duty of care by failing to repair the defect, insufficiently repairing it, or failing to warn visitors about it.
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New York Trials are structured differently in Manhattan and Bronx personal injury cases than they are in the remainder of the lower Hudson Valley and other boroughs of New York City. In a New York County construction accident, or a Bronx slip and fall case, for example, there are “full trials”, meaning that all issues are litigated before a jury in the same trial: issues as to the fault of the parties, as well as the injuries suffered by the plaintiff, the treatment performed by the doctors involved and the all damages issues involving the permanency of the injuries.

Conversely, in Queens County, for example, as well as the lower Hudson Valley jurisdictions such as Westchester County, Dutchess County, Rockland County, and Orange County, to use some examples, except in rare instances, trials are “bifurcated.” Bifurcated means split into two parts. So, as an example, in a Westchester County motor vehicle accident, the jury first hears testimony and considers evidence only of the negligence or fault of the parties involved in the car accident, and first makes a decision as to whether the defendant(s) and or the plaintiff are legally responsible for the accident. (For a description of how we prove the defendant’s negligence in a personal injury case, please see our November 13, 2007 blog entitled “Burden of Proof in New York Personal Injury Cases”). It is only if a jury finds the defendant(s) partially or wholly at fault for the accident in a bifurcated trial that a jury then decides the amount of damages to award the plaintiff in a bifurcated case.

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A subpoena is a command for the person receiving this document to appear in Court or at a deposition, either to give testimony or to bring documents. A failure to comply with the subpoena can result in a financial penalty to the person subpoenaed, or in extremely rare instances, to a short jail stint for contempt. A subpoena “duces tecum” is a Latin term meaning that the recipient must bring documents to Court, or to a deposition in a lawyer’s office. A personal subpoena is a command to appear in Court or a deposition to give sworn testimony. In New York, a frequent use of a subpoena is to command the “non-party deposition” of a witness to an accident.

Our office recently used a non-party subpoena in a Brooklyn slip and fall case, to obtain the testimony of a passerby who observed our client fall, and also noted that landlord had failed to apply salt or sand to the patch of ice where the accident occurred. If a witness is reluctant to become involved in a case, there is often no other alternative to ensure that this person appears in Court other than a subpoena. Years ago, we were involved in a Bronx construction accident in which our client had fallen from a ladder and suffered very serious injuries. A co-worker was aware that he ladder was in very poor condition, but refused to appear in Court voluntarily. Therefore, in order to get this vital testimony before a jury, we were forced to subpoena this witness to Court.

As for the subpoena duces tecum, this is often used to compel medical providers such as hospitals, physicians, physical therapists, or chiropractors to provide their records of treatment of plaintiffs in New York slip and fall accidents, car accident cases, New York medical malpractice cases, defective product cases, or New York trucking accidents, to name a few.

In New York personal injury cases, such as a Brooklyn slip and fall accident, Bronx motor vehicle accident, or a Westchester construction accident, probably the most important legal procedure in the case before trial is the deposition. In a deposition, also known as an Examination Before Trial (EBT), the parties to a lawsuit, or witnesses to an accident, are placed under oath and asked questions about the accident, the injuries suffered by the Plaintiff, and generally everything they observed on the date of the car accident, trip and fall accident, or fall from a scaffold or ladder, to use a few examples.

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Negligence is a very common term in New York law, but clients are frequently unsure what this term means. Negligence means a lack of reasonable care which one person owes to another person. It is failing to foresee or anticipate that the wrongdoer’s risky conduct will cause injury to another. Negligence is not intentional or willful conduct, which also creates liability and can lead to legal responsibility for injuries caused. In order to recover personal injury damages in New York however, not only must negligence be proven, but it must also be proven that this negligence was the legal cause of injury or damages to another person.

Specific examples of New York negligence include: A driver causing a Brooklyn car accident by going through a traffic light; a landlord causing a Bronx slip and fall accident on an icy staircase by failing to apply sand, salt or otherwise remove the ice despite his knowledge of the condition; an owner of a dog allowing a Westchester dog bite when the dog had bitten a child one week earlier.

Negligence is not intentional or willful conduct, which also creates liability and can lead to legal responsibility for injuries caused. Examples of intentional conduct would be an assault at a bar, or libel, in which the wrongdoer intends to cause the injury, rather than accidentally causing the injury.

The Statute Of Limitations In New York is a legal term which means the time in which a lawsuit must be started to be legally sufficient. In New York State, there are numerous statutes of limitations for various different types of cases. For example, in New York motor vehicle accident cases, the statute of limitations is three years from the date of the accident. This means that even if the case is filed one day past the three year anniversary of the motor vehicle accident in New York, the case is legally defective and will be dismissed.

In New York medical malpractice cases, there is more than one type of statute of limitation, but a classic example of a doctor performing surgery on the wrong body part would have a statute of limitation of two and one half years from the date of the last treatment with that doctor.

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In New York State Courts, the Plaintiff, or the person that is suing for money damages, has the burden of proof, meaning that the New York plaintiff must present evidence establishing that he or she is entitled to recover compensation from the defendant. Conversely, the defendant has no legal obligation to prove or disprove anything. The burden of proof in a New York civil case, which is a lawsuit for monetary damages, such as in a motor vehicle accident, or trip and fall accident, or in a case of medical malpractice, or injuries from an animal bite, to use some examples, is “a preponderance of the evidence.” A preponderance of evidence is defined as evidence establishing that it is slightly more likely than not that the defendant is legally responsible for the plaintiff’s injuries.

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In New York, in order to win a case when you are injured in a slip/trip and fall accident, the most important factor is proving “Notice.” Notice is the legal term which means knowledge by the defendant supermarket, shopping mall, department store, other place of business, or municipality, that a particular dangerous condition existed for a period of time, and the failure of that business owner or municipality to repair that condition despite their prior knowledge.

There are two basic types of Notice which can be proven in a dangerous premises case in New York. The first is “Actual Notice.” Actual Notice is defined as knowledge which was provided to the defendant by informing them before the accident by way of a writing or conversation, that the dangerous condition existed and needed to be repaired. For example, in a Bronx trip and fall accident, before a case can be brought against the Bronx municipality, you must prove that they were warned of the broken section of the sidewalk and failed to make repairs. This is the reason that fall down accidents are so difficult to prove against municipalities–What are the chances that someone actually wrote a letter to a municipality before your accident informing the municipality that the sidewalk was cracked or not level? One advantage that we have in prosecuting cases against the 5 boroughs of the Bronx, Brooklyn, Queens, Manhattan, and Staten Island, is the Big Apple Pothole Corporation. Essentially, what Big Apple does is chart every sidewalk in the city for defects, and then send maps to the City of New York of these specific defects, which can then be used in court to legally prove notice. Unfortunately, Big Apple’s reach does not extend past the five boroughs into the suburbs or rural New York to protect the victims of municipal negligence there.

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