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Parties to lawsuits have some obligation to preserve or to not destroy evidence.  If a party improperly destroys evidence, the other party may seek sanctions for “spoliation” of that evidence.  The destruction does not have to be intentional.  A court may still issue sanctions for spoliation of evidence that was negligently lost or destroyed.  If a court determines the evidence was intentionally or willfully destroyed, it presumes the relevance of the evidence.  If it was negligently destroyed, the party seeking sanctions must show relevance.  Available sanctions vary, depending on the importance of the evidence, and can range from a jury instruction to dismissing the case.

junkyardThe issue of spoliation recently arose in a case involving an automobile accident.  The plaintiff was involved in two accidents less than three weeks apart.  She sued the driver who rear-ended her in the first accident.  The defendant accepted liability for the accident, but the parties did not agree on which accident caused the plaintiff’s alleged injuries.

The defendant moved for sanctions against the plaintiff for spoliation of evidence.  The defendant argued the plaintiff disposed of her vehicle before his insurance company had a chance to inspect it.  He argued the inspection was crucial to determining which accident caused the injuries the plaintiff claimed she had sustained.  In seeking sanctions, the defendant had to show the plaintiff had a duty to preserve the vehicle and had a culpable state of mind, and the vehicle was relevant to and supported his defense.

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Sometimes a city or another government entity is at fault for a person’s injuries, but suing the government can be complicated.  Whether a city can be held liable often depends on the nature of the act or omission that caused the injury.  The city is “immune” from liability for actions taken for the protection and safety of the public, or “governmental functions.”  If the city is engaged in activities that would traditionally be performed by private enterprises, it is engaged in “proprietary functions” and may be sued for negligence like any other party.  New York case law has held that the planning, design, and maintenance of roads are generally proprietary functions.  However, the city has qualified immunity for highway planning decisions relating to roadway safety.  This issue recently arose in a case involving a pedestrian struck by a bicycle.

bicycleThe plaintiff was injured when she was struck by a bicyclist in a designated bicycle lane.  The Department of Transportation placed safety barrels in the area, upgraded the crosswalks, and trimmed the bushes within two weeks of the incident.  It made additional changes about six months later.

The plaintiff argued the city was negligent in designing and maintaining the roadway. She also argued the city was negligent because it had not conducted proper safety studies or implemented remedial measures.  She argued that the nine previous incidents on that street had given the city actual notice of the dangerous condition.

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In a New York car accident case, a plaintiff must show that he or she was injured and that the injuries were proximately caused by the accident.  It is not enough to show that there was an accident and that the plaintiff has injuries; the plaintiff must also show that the accident was the proximate cause of the injuries.  If a plaintiff has suffered previous injuries or has a condition in the same area of the body, the defendant will likely challenge causation.

FilesIn a recent case, the plaintiff sought a post-trial directed verdict after the jury found in the defendant’s favor.  She filed suit for injuries allegedly resulting from an automobile accident.  She appealed the trial court’s denial of her post-trial motion that the court set aside the verdict and direct a judgment in her favor or alternatively order a new trial.  She also appealed the judgment on the jury’s verdict of no cause of action.

The plaintiff argued the trial court erred when it denied her motion for a directed verdict as to causation.  The plaintiff testified that she had not had an injury to her neck before the accident, but her medical records indicated complaints of chronic neck pain several months before the accident.  Her chiropractor and orthopedic surgeon each concluded that the accident proximately caused her injuries.  The appeals court noted, however, that they had relied on the plaintiff’s self-reported medical history in reaching their conclusions.  The plaintiff’s chiropractor testified he did not think she had a neck injury before the accident and would have to reevaluate if the information he received was incorrect.  Her orthopedic surgeon testified he first thought her shoulder pain was caused by a neck injury but concluded that it was instead a shoulder injury.

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Generally, an employer may be held liable for the negligence of its employees when they are acting within the scope of their employment.  This theory of liability is known as respondeat superior.  Respondeat superior applies when the negligent person is an employee, but it generally does not apply to independent contractors.  The question of whether a person is an independent contractor or an employee turns on whether the purported employer exercises control over either the means or the results.  The court may consider a number of factors, including whether the worker worked at his own convenience, could engage in other employment, received fringe benefits, was on the payroll, and was on a fixed schedule.  New York car accident attorneys know that the question of whether a person is an employee or an independent contractor is not always clear, as seen in a recent case.

crosswalk signThe plaintiff alleged she was injured when she was hit by a car while crossing an intersection.  She identified the vehicle by the license plate number.  She alleged that the owner and operator of that vehicle was employed by a car service.  In his answer, the defendant driver did not deny being the owner of the vehicle or operating and controlling it.

The car service was a livery, rather than a taxi service.  It denied having control over the vehicles affiliated with its base or their drivers.  The car service denied being the employer of the defendant driver and argued it should be granted summary judgment because it was not vicariously liable under the theory of respondeat superior.

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A person injured in a New York car accident must show he or she suffered a serious injury under the New York Insurance Law.  The Insurance Law sets forth several categories of significant injuries, including the limitation of use of a body function or system.  To defeat a defense motion for summary judgment on the issue of limitation of use, the plaintiff must provide objective medical evidence showing the extent, percentage, or degree of the limitation or loss of range of motion.  The plaintiff must also submit evidence of the duration of the limitation.  A minor limitation or pain that is unsupported by medical evidence with diagnoses and identification of the injuries will not be considered a significant injury.  Medical reports of the examining physician or chiropractor are insufficient, but a plaintiff may rely on an unsworn MRI report if the defendant’s expert referred to it.

yellow lightIn a recent case, the plaintiff’s evidence was found to be insufficient to defeat the defendants’ motion for summary judgment.  The plaintiff alleged she was injured when the defendants’ vehicle rear-ended her vehicle while she was stopped at a flashing yellow light.  The defendants moved for summary judgment, alleging the plaintiff had not sustained a serious injury as defined in the New York Insurance Law.  The defendants’ evidence included the sworn report of the doctor who conducted an independent orthopedic exam.  The doctor stated in his report that he found the plaintiff had a full range of motion in the spine, with no evidence of muscle spasms, tenderness, or trigger points.  He concluded that the trauma she sustained in the accident had resolved.  The doctor further noted that there was no indication she needed further orthopedic testing or treatment for injuries related to the accident.  His report also stated that there was no indication she had a residual functional impairment, and she was capable of participating in her daily activities without restrictions.

The court also noted that the plaintiff’s testimony showed that substantially all of her daily activities had not been restricted.  She testified she had missed just one day of work due to her injuries, and there was no change in her duties, salary, or bonus as a result.  She testified she stopped treatment after six months, but she had continued chiropractic treatment for about a year and a half.  At the time of her testimony, she did not have any appointments scheduled related to her injuries.

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The New York Labor Law requires owners and contractors to provide a safe construction site and imposes liability on them if they fail to meet certain safety requirements.  Although they are generally considered to apply to construction sites, the applicability of the statutes is based on the work being performed and may be somewhat broader than what one would generally imagine as a construction site.  Thus, New York construction injury attorneys know that there may sometimes be a question as to whether these laws apply, as seen in a recent case.

broken cableThe plaintiff was working as a “cable splicer” for a telephone company at the time of his accident.  According to the plaintiff, a tenant in the defendant’s building requested service on some telephone lines that were not working.  The plaintiff alleged he had to access the wires through a “splice box,” which was on a wall in the stairway.  The plaintiff alleged he was on a ladder working on the splice box when he fell.  He filed suit against the building owner for violations of Labor Law § 240(1), § 241(6), and § 200, and common law negligence.

The defendant moved for summary judgment, arguing the Labor Law was not applicable because the plaintiff was not engaged in any of the enumerated activities that would trigger those claims.  The defendant argued the plaintiff was simply performing routine maintenance and only replaced component parts that had been damaged through normal wear and tear.  He was not altering a structure at the time of his accident.  The defendant further argued it did not have notice of his presence on the property.  According to the defendant, utility workers were required to sign in at the front desk, but there was no record of that happening.  The defendant also argued that Section 200 did not apply because the defendant did not control the plaintiff’s work.  Additionally, the defendant argued the plaintiff was in control of his own work, and the alleged unsafe condition was therefore solely in his control.

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New York car accident attorneys must fight hard for their clients from the beginning of the case.  New York defendants often seek summary judgment on the ground that the plaintiff did not sustain a “serious injury” as defined by New York insurance laws.  Defendants will use independent medical examinations to show that the plaintiff’s injuries were not “serious.”  Plaintiffs can successfully defeat these motions if they have records from their own doctors that show they have met the definition of a serious injury, as seen in one recent case.

car crashThe plaintiff filed suit, alleging a serious injury resulting from an automobile accident.  According to the plaintiff, he had to brake suddenly to avoid hitting several mattresses in the roadway and was rear-ended.

The defendant moved for summary judgment on the ground the plaintiff had not suffered a serious injury.  The plaintiff had testified he missed some days of work in the four weeks following the accident.  He then missed two months of work after having shoulder surgery four months after the accident.  However, the total number of days was less than 90.  The court found the defendant had made a prima facie showing that the plaintiff had not suffered a serious injury in the 90/180 category.

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Social media has become a significant part of many people’s lives.  It allows people to maintain contact with family and reconnect with old friends.  New York personal injury attorneys understand, however, that a social media account can be detrimental to a case.  Defendants often seek the photographs and posts in a plaintiff’s account, as seen in a recent case.

NotebookThe plaintiff filed suit against the defendant for injuries she allegedly sustained when she fell off his horse.  She testified she had previously posted pictures of her active lifestyle on Facebook before the accident, but she had deactivated the account a few months afterward. She stated her injuries caused her difficulty using a computer and writing coherent messages and that it took her hours to write a simple email.

The defendant moved to compel an unlimited authorization for the plaintiff’s entire private Facebook account.  He argued she claimed she could not cook, travel, go to the movies, go boating, and do other specified activities.  He further argued that her Facebook posts would likely be material to her allegations of limitations and her claim that the accident affected her ability to read, write, and use a computer. He noted that the timestamps could show how long it took her to write a post or respond to received messages.

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Evidence submitted in support of a motion for summary judgment must be in admissible form.  Medical records should generally be affirmed or certified, but a defendant in a New York auto accident case may rely on unsworn medical records received from the plaintiff.  The defendant should, however, provide a foundation for such records in counsel’s affirmation.  A New York court recently disregarded the records submitted by defendants in support of a motion for summary judgment due to their form.

documentsThe defendants filed a motion for summary judgment with seven exhibits.  One exhibit was described as records from a hospital emergency room, but the records were not affirmed or certified.  The defendants did not provide a foundation for the admissibility of these records, and the defense attorney’s affirmation did not provide a basis for the attorney’s knowledge that the records were what they were purported to be.  The court disregarded those records.

The court also disregarded an unaffirmed report from a pain management doctor.  Additionally, the court disregarded the affirmed report of a chiropractor.  The court noted that chiropractors’ reports must be subscribed before a notary or other official to be in admissible form.

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Showing a New York car wreck victim sustained a “serious injury” under New York insurance law is an important part of a negligence claim against the other driver.  There are several categories of serious injury, including the 90/180 day category, which requires a showing the accident resulted in a disability that prevented the plaintiff from doing his or her regular daily activities for a period of at least 90 of the 180 days after the accident.  The relevant period for a serious injury under the 90/180 day category is the 180 days after the accident.  A defendant cannot defeat a plaintiff’s claim under this category by showing that the plaintiff does not continue to have impairment, if the plaintiff has evidence showing that he or she was impaired for the requisite period.  A New York court recently denied summary judgment to a defendant who tried to show a lack of serious injury with a medical examination that occurred after the 180 day period.

taxiThe plaintiff was a taxi driver whose vehicle was hit while stopped at a red light.  Later that day, he was driven to the emergency room.  He complained of pain in his knee, ribs, shoulder, and lower back.  He subsequently filed suit, alleging serious injuries.

The defendant moved for summary judgment, arguing the plaintiff had not sustained a “serious injury” as a result of the accident.

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