HELPING FAMILIES COPE WITH CATASTROPHIC INJURIES FOR MORE THAN SIXTY YEARS

Personal Injury Attorney‎ Forest Hills | Personal Injury Lawyers NYC

Wittenstein & Wittenstein has “of counsel” relationships other prestigious New York City Law Firms to give you the best of both Worlds: close personal local service and the top names in the game.  Personal Injury Attorney‎ Forest Hills | Personal Injury Lawyers NYC expands the possibilities, allowing us to handle a wider range of cases, assuring that the best expert is on each and every case.  We are the most reputable accident attorneys in New York City, you’re in good hands.

Accident law refers to the all the laws, regulations and customs that come into play when you are injured, or your property is damaged in an accident.  This is also called “negligence law,” because negligence is the legal term for acting carelessly, which is often what causes accidents. This area of practice usually operates under State Law unless the accident involves a Federal Entity, such as an accident that involves a mail truck.

The most common types of accidents are car accidents, but there are so many other types of accidents where somebody’s negligence or carelessness can cause harm.  Slip and fall accident fall under the umbrella of “premises liability” as they concern the reasonableness of the safety measures an owner takes on their property.  If somebody slips and falls because there is oil on the floor, the property owner is responsible for the injury.

The same theory applies to the duty to make products that are safe for consumers, so accidents that cause injuries due to the negligence in the design or manufacturing of a product are actionable.  These claims are called “Product Liability’ claims. Professionals are responsible for their work, so that doctors, lawyers, and accountants can be held liable for not performing to the correct standard for their profession.

It is extremely important that you work with reputable accident attorneys in New York City, as there are many lawyers that are looking for a fast buck that lack the experience and reputation that you will receive from a well-established firm.

PERSONAL INJURY LAW

FEDERAL, STATE AND LOCAL LAW

The United States Judicial System included both a federal courts court which can each hear different types of case.  There are two basic types of cases heard in American Courts – Civil and Criminal. The focus of the criminal law system is to punish violators of the law, both to protect others from their conduct and to deter people that might contemplate committing crimes.  Civil law is intended to compensate those whose person or property has been injured by the wrongful conduct of another person. In addition to money damages, civil law can provide for an “injunction” to stop the harmful conducting from continuing.

American civil law includes breaches of commercial duties, such a broken contracts of other failures to meet business obligations, and also includes remedies for harmful conduct that causes injuries to others.  The underlying principle is to promote proper conduct among citizens by providing remedies for breaches of duty. There are two major types of breaches – breaches of an agreement between parties and breaches that arise “out of operation of law.”  The second type is where most civil litigation happens.

A breach of civil law is called a “tort.”  Black’s Law Dictionary defines a “tort” as “a private or civil wrong or injury, including an action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages and/or an injunction.”  American tort law is based on the British common law system of jurisprudence. This means that the application of laws is based on Judge’s opinions on cases, which is something that is constantly evolving. Any decision might be reversed, affirmed, reconsidered or might even make its way up to the Supreme Court, the highest court in the land.

Personal Injury Lawyers usually restrict their practice to handling tort claims on a contingency fee basis in order to allow people without enough money to hire a lawyer to pursue claims.  It is usually advisable to hire a personal injury attorney that specializes in this area, and sometimes additional attorneys can be added to the team if he be. For example, for a wrongful death claim, it might make sense to have a Wills and Estates attorney on the team.

STATES OF MIND

Intentional Conduct

Criminal acts can give rise to tort claims, and most often the conduct is intentional.  An example is embezzlement. This is a crime punishment by many years of imprisonment, and the victim is certainly going to sue to get their money back whenever possible.  This also comes up for assaults, which can give rise to claims for inadequate security. A sexual assault by an employer, will most likely give rise to a sexual harassment claim.

“The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction.” WILLIAM L. PROSSER, LAW OF TORTS 31 (4th ed. 1971).  The most common intentional tort is what’s called “trespass.”  This is when a person intentionally enters the property of another, or causes somebody else to enter the property or remains on property after being asked to leave.  When trespass occurs, and harm is done, the owner is entitled to be compensated.

Other common types of intentional torts are battery, assault, infliction of emotional distress and false imprisonment.  These basic common law categories give rise to many familiar claims. For example, a false imprisonment case is a basis for a lawsuit for false arrest.  Intentionally failing to provide correct medical results might give rise to a claim for the intentional infliction of emotional distress. A battery is “any unpermitted touching,” giving rise to a hostile work environment or peer-to-peer bullying case.

Reckless Conduct

Penal Law Section 15.05 defines states that a person acts recklessly when ”he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation.  Examples of recklessness in the civil context would include driving at 100 miles per hour in a school zone, and, of course, our favorite law school example, “shooting a gun into a crowded room.”  The victims of the shooting would have a claim against the perpetrator for his reckless conduct and also against the owner or operator of the property, if they knew or should have known that the person was dangerous.

Negligent Conduct

Negligence is essentially “carelessness” and is, of course, the most common tort claim asserted.  There’s nobody walking around that has never give “guilty” of some level of negligence. To have an actionable case, there must also be some type of injury, so if you forget to send your child to school with lunch, and her friend shares lunch with her, no real harm has been done, despite the obvious negligence.  If you bump a car while parking, but there is no property damage and no injuries, it’s not a tort despite the negligence.

Negligence is not defined in a statute, it is a standard of “reasonableness” which is left to the “finder of fact,” (a judge or a jury) to determine.  Common examples are speeding and failing to abide by traffic signals. For product liability it is failing to use the necessary care, or provide appropriate warnings and instructions, to make sure that a product is safe.  The purpose of negligence claims is a “non-criminal” ways to regulate proper conduct in society.

Vicarious Liability

The most common type of vicarious liability claims arise from the the employer-employee relationship.  The law believes that because an employer is benefitting from the work done by an employee, they should also be responsible for their conduct.  Employers are responsible for training, screening and overseeing their employees. If a bouncer at a nightclub uses excessive force to eject a patron, the owner can be held liable.  This relationship also exists where an owner permits a driver to operate their car.

Other Torts

Some other examples of torts are premises liability, defamation, malicious prosecution, false arrest and an intentional interference with contractual relationships conspiracy, invasion of privacy, breach of fiduciary duty, etc.  The list of all torts is very long, but the purpose of this article is to explain what torts are, not to list each and every tort.

Whether is it is an intentional, reckless or negligent tort, an experienced New York Personal Injury Attorney will be able to evaluate your claim and advise you about whether it is worth pursuing.  Small claims can be handled in small claims court without an attorney, but larger claims are best handled with the assistance of a personal injury attorney.

What’s Needed to Prove a Tort (Personal Injury) Case?

Burden of Proof

The “burden of proof” starts with the plaintiff bringing the action.  The claim must be proved by a “preponderance of the evidence.” This means essentially that it must be proven that it is “more probable than not.” (Black’s Law Dictionary.)  This is a much lower standard than the “beyond a reasonable doubt” standard for criminal cases.  Having the “burden of proof” is important because if a plaintiff fails to “show a claim,” the case can be dismissed by the Judge on a Motion from the Defendants or the Judge can order it himself.  This is to avoid clogging the courts with meritless claims.

Duty

The actor is required to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by such other, of which that actor’s conduct is a legal cause.” (Black’s Law Dictionary.)  More simply put, this is the care an ordinary prudent would have exercised under the same or similar circumstances. (Ibid)  This duty requirement is what gives rise to need to follow traffic safety laws, keep a property safe and many other familiar claims.

Proximate Cause

It must be shown that “the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.” (Black’s Law Dictionary.)  This is a concept that is notorious for causing law students to bang their heads against the wall repeatedly, but it’s actually quite simple.  The question to ask is “would this have happened but for the circumstances claimed.” In other words, it can’t be just a coincidence.

In practice, this comes up as an issue of “causation.”  The Plaintiff, for example, is claiming a fractured leg, but X-rays from before the accident already show a fracture.  There’s no denying that she has a fracture, it’s right there on the X-ray, but a fender bender with $250 in property damage to repair a scratch was not likely to have been the “proximate cause” of the accident.  A premises liability example is when somebody claims they were injured because a neighbor’s tree fell on their property, but witnesses saw that the tree did not make contact with the Plaintiff, and that he fell and tore a ligament on his leg from a tree that fell on his own property.  A trees fell and there was an injury, but the falling of the neighbor’s tree was not the proximate cause of the injury.

Wittenstein & Wittenstein is the top personal injury attorney in Forest Hills – helping people get back on their feet for over sixty years.

PERSONAL INJURY LAWYERS REPRESENT VICTIMS OF TORTS

There are two major types of law in the United States and other Western Countries – criminal law and tort law.  Criminal laws are enforced by the government byto punish perpetrators and to protect the population from harms caused by criminals.  Tort laws allow people to sue to collect damages from other people that have caused them harm.  Many laws have an equivalent in criminal and tort law.  For example, the crime of theft is equivalent to the tort law of conversion.  The government can prosecute an alleged thief, and at the same time, he might be sued under tort law by his victim.  More commonly, a drunk driver will face criminal charges, while also be sued in “tort” by his victims.

The district attorney prosecutes a criminal, and a personal injury attorney represents victims in lawsuits against offenders.  Tax dollars pay for the services of the district attorney, and personal injury attorneys are paid fees by clients.  When a case is strong enough, a personal injury attorney will do all the work on a case, and lay out all the expenses, agreeing to only get paid if they are successful in obtaining a settlement or verdict.  Not all tort cases are handled with contingency fees.  For riskier cases, a personal injury lawyer will sometimes charge clients an hourly fee.  It is very important that you understand your financial arrangement with your personal injury lawyer – do not be afraid to ask questions, and do not sign anything that you do not fully understand.

Most accident cases can be handled on a contingency fee, such as car accidents and slip and falls.  More complicated and riskier cases include defamation and employment discrimination, which may require that at least part of the fees are paid on an hourly basis and that the client lay out some of the cost for experts.  If you are injured, and it’s somebody else’s fault, it’s always worthwhile to have a consultation with a personal injury lawyer to find out what your rights are.