If you slip and fall because of a dangerous condition on someone else’s property – say a puddle of water on a supermarket floor, or grease on a staircase within a restaurant – your natural instinct may be to assume that you are automatically entitled to collect compensation for any injuries that you sustain as a result of this type of accident. After all, in almost all slip-and-fall accident cases, had the property owner or management of the establishment at which such an accident occurred bothered to remove the dangerous condition that caused you to fall, your accident would not have occurred. However, collecting compensation in a slip-and-fall accident case is not as simple as pointing the finger at whoever is responsible for maintaining the property. The law has established several elements that even the most seriously injured person must prove in order to collect compensation if they have slipped, fallen and become injured. If an injured person cannot prove every one of these elements by a “preponderance” of evidence (i.e., by a showing that it is “more likely than not” that each element of the test is satisfied), their case will likely be dismissed, leaving them unable to obtain any compensation at all, no matter how serious their injuries may be.
The State of New York is among the states with the highest incidence of medical malpractice litigation throughout the United States. With respect to legal fees, nearly every New York medical malpractice attorney (as do most medical malpractice lawyers around the country) charges a type of fee known as a “contingency” fee, the amount of which is determined based upon the size of the settlement or judgment obtained when the case concludes. This fee structure is important for several reasons: (i) It allows people who have been harmed by negligent doctors to obtain high-quality legal representation without having to pay large legal fees out of their own pocket, which most victims could never afford; and (ii) it aligns the financial interests of the medical malpractice attorney with his or her client, as, under a contingency fee arrangement, the more money the client gets from his or her case, the more the attorney gets paid. It used to be, prior to the year 1985, that medical malpractice lawyers in New York customarily charged a contingency fee equal to one third of the recovery in a medical malpractice case. However, since 1985, and as a result of extensive lobbying by the medical industry designed to reduce medical malpractice litigation, the contingency fees that medical malpractice lawyers in New York may charge their clients have been restricted. This article intends to explain what the current limits on medical malpractice contingency fees are, and why those limits are detrimental to medical malpractice victims and attorneys alike.
The answer to this question, like most everything in the context of a personal injury lawsuit, is that “it depends”. On the bright side, the laws of New York State relating to construction accidents have been written in a manner that is very protective of workers on job sites, and especially so as to workers who suffer injuries from “gravity-related” accidents such as falling from a scaffold. However, to obtain compensation for even the most devastating and life-altering construction injuries, injured workers must prove that their case qualifies pursuant to stringent and exacting legal tests that have been set up by the courts to evaluate whether compensation is due in any particular construction accident lawsuit. By using the example of a worker who has fallen from a scaffold on a New York construction site and sustained injuries thereby, this article hopes to educate readers about some of the legal hurdles that must be cleared in order to obtain compensation in a New York construction accident lawsuit.
Police officers, just like the rest of us, make mistakes, and sometimes these mistakes result in very serious car accidents. If you are the victim of a car crash involving a police officer who is speeding, runs a red light, drives on the wrong side of the road, or commits some other act of egregious negligence, you may think that obtaining compensation from the police officer, as well as the police department and municipality for whom the police officer works, will be easy. After all, the police officer was so audaciously negligent, how can you lose?
If the defendant were anybody apart from a cop, you would almost certainly be entitled to collect compensation from that person if they committed any of the aforementioned negligent acts in connection with operating a motor vehicle on the public roadways within the State of New York. However, the New York State Legislature, in recognition of the fact that police officers often must respond quickly to emergency situations, has bestowed certain privileges upon police officers (in addition to operators of ambulances and fire trucks) when they are conducting “emergency operations” that permit them to violate the rules of the road in certain specific manners. If a police officer was engaged in any of the four privileged categories of privileged conduct contained in New York Vehicle and Traffic Law Section 1104(b), you will have to prove that the officer’s conduct was “reckless”, instead of simply “negligent”, to collect any compensation from them in a car accident lawsuit.
On Sunday, March 18, 2018, a first-of-its-kind tragedy occurred in Arizona: a self-driving car from Uber’s fleet of autonomous vehicles (which are currently undergoing real-world testing, some of it occurring on Arizona’s public streets and highways) killed a pedestrian. The victim – a woman from Tempe, Arizona – was killed while crossing the street in her home town. The tragic occurrence of a pedestrian fatality due to the negligent operation of a motor vehicle is, unfortunately, not exactly an uncommon occurrence, whether in New York City, Arizona, or anywhere else in the United States. What makes this tragedy especially notable is that it constitutes the first reported case of a pedestrian fatality caused by an autonomous, AI-powered, self-driving vehicle anywhere in the United States. The New York Times covered this story this week, and you can read more about it by visiting the New York Times’ website and searching for the article.
While much of the public discussion regarding this tragedy centers around the phenomenon of artificial intelligence and its exponential growth and potential to upend society as we know it, this article attempts to analyze this horrific milestone from the perspective of a New York car accident attorney. Thus, we ask the following pertinent question, the answer to which will likely become of extraordinary importance to the everyday lives of New Yorkers as the ubiquity of artificial intelligence grows, and which will surely feature in any debate regarding the opening of New York’s roadways to driverless vehicles: Who would be responsible for this horrific tragedy, and thus liable to be sued for compensation in connection with the wrongful death of this poor woman, had this accident occurred in New York? Continue reading
In many very serious personal injury lawsuits, the issue of economic loss – whether it be in the form of medical expenses, lost wages, lost fringe benefits, or lost government benefits such as Social Security – is the most important component in determining the value of a particular case. While these cases also involve substantial amounts of “non-economic” loss (i.e., pain and suffering) to the accident victim, the amount of money that will be ripped from their pocket due to their injuries and resultant disability can be staggeringly high. One of the most important differences between economic loss and non-economic loss in context of a personal injury lawsuit is the ease with which these losses can be quantified. Non-economic loss is intangible, and it is often very hard to value a person’s pain and suffering with a finite dollar amount. Economic loss, however, can be quantified down to the very last penny. For this reason, both in context of settlement negotiations, and while a jury is deliberating over the evidence presented at trial, economic loss is often much more powerful and persuasive than non-economic loss; and, in fact, presenting substantial economic losses can boost the amount of non-economic loss that will be awarded to a plaintiff in a personal injury lawsuit.
When there are substantial economic losses involved in a personal injury case (generally, this is the case when an accident victim is totally disabled from working after a serious injury), a good personal injury attorney will hire an economist to quantify all of the economic losses caused by a tragic accident. This expert analysis is very important, especially when long-term future losses are involved. Economists have special training that allows them to explain the full effects of all economic losses that an accident victim may have suffered, and can apply important statistics and mathematical formulas (e.g., growth rates, inflation) to items of damages such as future medical bills and future lost wages that show that the economic loss suffered by an accident victim is actually much larger than a simple layperson’s analysis would demonstrate. For this reason, an economist is often a solid investment in a very serious personal injury case, especially when the case involves a permanent disability, and top personal injury attorneys will use this important tool to maximize the compensation to which their clients are entitled.
Among the most important parts of any personal injury or medical malpractice case is the “discovery” process. “Discovery” refers to the exchange of information relevant to the claims in the case between the parties. The discovery process is how the evidence that will be used at trial is created. Among the evidence that can be – and quite often is – turned over in the discovery process and used at trial are photographs of the plaintiff’s condition after an accident, including those posted to a privatized social media account. These photographs can be used by the plaintiff to impress upon the jury the devastating impact of their injuries, thereby supporting the plaintiff’s claims of damages if they show that the plaintiff must walk with a cane or is in a wheelchair, for example. These photographs can also be used by the defense to demonstrate that the plaintiff’s injuries are not as bad as the plaintiff claims they are if they show that, shortly after an accident, the plaintiff was out and about and did not appear physically injured, for example. Obviously, what is depicted in photographs will determine whose side – the plaintiff’s side, or the defendant’s side – will benefit from this important evidence of damages.
In today’s world, many people post an incredible amount of information about their lives to various social media platforms. To many plaintiffs’ lawyers’ dismay, personal injury victims also participate in social media, posting information (including photographs) relating to their injuries and the facts of their case, often to the serious detriment of their cases. Despite lawyers’ warnings, clients inevitably forget, or even deliberately ignore their lawyers’ instructions, that any photographs that are posted to social media can be used against them in court. Even though social media is a relatively new phenomenon in our society, examples of errant social media posts which have seriously reduced the value of personal injury cases are abundant. Even when a plaintiff is truly injured, a photograph of them enjoying a moment of levity with family or friends – even if it is the only moment since their accident that they have actually enjoyed, or the only time that they have been able to fight through their pain to leave the house, put on a smile and have even a moment’s worth of fun – can devastate their claims. Our attorneys always counsel clients to completely cease use of social media platforms during the pendency of their cases, and for good reason.
This article is the second of two parts of our series on the taxability of personal injury and medical malpractice settlements and verdicts for residents of New York State. We hope that you enjoy reading it, and invite you to contact us with any questions you may have by calling (718) 354-8000 today.
The General Theory: Personal Injury and Medical Malpractice Settlements and Judgments are Not Income and Thus are Not Taxable.
When a person suffers a serious injury, they experience a loss that is referred to as “damages” under the personal injury laws. This loss, in a personal injury lawsuit, is categorized into different elements, which can include pain and suffering, lost wages (both past and future), medical bills (both past and future), as well as other categories of damages that may arise depending upon the circumstances of the particular case. When a jury awards damages to an injured plaintiff in a personal injury lawsuit, the jury is, essentially, giving the plaintiff money to compensate them for what they have lost due to having been injured. This concept is the same when a personal injury plaintiff receives a settlement for the damages they have incurred.
If a personal injury case brought in New York State is successful, the injured person (and also members of their family, under certain circumstances) will receive financial compensation for their injuries, which can sometimes be a substantial amount of money. After all, under our system of civil laws that apply to such cases, financial compensation is essentially the only remedy available for injured people if they suffer physical harm due to the negligence of another. For many seriously injured people, the amount of money awarded is far more money than they have ever had at any one time in their entire life.
Imagine that you have received a very substantial settlement in a construction accident case (say, for example, you had fallen off a scaffold on a construction site, and had suffered very serious injuries to your spine which required surgery and which left you unable to perform construction work for the rest of your life) in which you were compensated for your pain and suffering (that is to say, for your actual physical injuries, as well as the psychological injuries caused by your accident and resultant disability), your lost wages, and your lost union benefits (such as your pension, medical insurance and vacation time). Upon feeling gratified in receiving compensation that is rightfully yours, the next thought is very likely to be: “Do I now have to pay a massive tax bill because I have been compensated for my injuries? After all, when I used to be able to work, and I earned a paycheck and benefits, I had to pay taxes on those things, so why wouldn’t I have to pay taxes on the money I have received from my case?”
The answer to this question for residents of New York State, thankfully, is usually “no”. As a general rule, proceeds of cases in which you are compensated for the consequences of physical injuries are not taxed. This is because, as a general matter (and in very simplistic terms), only “profits” are considered income that can be taxed, and any recovery had in a personal injury lawsuit is not considered to be profit but is simply a repayment of money that was taken away from the injured person due to the negligent conduct of another person.
Jesse Minc was quoted in the New York City Lens online news publication regarding an ongoing lawsuit against the R.G. Ortiz Funeral Home in Bronx, New York. You can read the article here. This tragic case involved the premature death of a Bronx woman, whose family contracted with the funeral home to cremate her body and return the remains promptly to the family for funerary services. Unfortunately, despite months of inquiries by the family, the funeral home failed to respond and answer one simple question: Where is my sister’s body? As of the date of this post, this simple question has not yet been answered in a manner satisfactory to the family.
This particular case involves a claim known as “Loss of Sepulcher”, in which a deceased person’s next of kin file a lawsuit alleging that a particular defendant negligently interfered with their right to immediate possession of their deceased loved one’s remains. The plaintiffs in such a case can obtain compensation for emotional damages, which are presumed under the law.
These types of claims are often related to claims for wrongful death. Under New York law, and more specifically the New York Estates Powers and Trust Law, next of kin of a deceased person who is killed due to the carelessness, recklessness or negligence of another person may file a lawsuit claiming economic losses incident to the wrongful death of their relative. Wrongful death claims involve purely economic damages; to recover, the family must prove that they have, collectively and individually, suffered an economic loss as a result of the loss of their loved one (e.g., that they have lost a source of household income because the deceased person can no longer work and earn a living to contribute to the family income). If, under the circumstances, the deceased person endured a significant amount of pain and suffering in connection with their untimely passing, the family can also bring a claim for conscious pain and suffering in addition to the separate claims for wrongful death.