New York's Vehicle and Traffic Law section 388 makes an owner of a car responsible for the actions of a driver of that car. If the driver gets into an accident and hurts someone, that injured party can collect from the owner of the vehicle. New York also allows a passenger to sue a driver when both get into an accident.
The case of Schuyler v. Perry brings up an interesting question. The case involves a 2 car collision. The plaintiff was the owner of a car she was also a passenger in. She sues her driver and the 2nd car. The second car argues that any damages award from it should be limited because as an owner, the plaintiff has vicarious liability for her driver's negligence. In other words, the second driver is trying to impute comparative negligence on the plaintiff.
The Court said that vicarious liability could not be invoked in such a case. The Court looked beyond the language of 388 to its intent as expressed by other Courts. The intent of 388 is to expand protections for people injured in car accidents. The Court quoted NY's highest court, "where the general rule now is that a passenger's right to recover should not be barred merely because he bears some special relationship to the driver...." Kalechman v Drew Auto Rental, 33 NY2d 397.
This decision serves two aims. The first is to reaffirm that vicarious liability and CPLR 388 is a weapon for the plaintiff, not the defendant. The second is to underscore the principle that in most cases a passenger is held to have no negligence in a car accident. After all, the passenger wasn't driving. By refusing to impute vicarious liability to the owner/passenger, the Court did not expand the very narrow circumstances (ex: knowingly getting into a car w/ a drunk driver) where a passenger can be negligent. Car crash victims can breathe a sigh of relief; their protections remain intact.
Showing posts with label New York State. Show all posts
Showing posts with label New York State. Show all posts
Friday, October 9, 2009
Friday, August 14, 2009
Damages in a New Light
It has been almost a month to the day that this blog was updated. For those of you that are keeping with us, thank you. Summer hiatus goes by faster than you would think.
When at the recent American Assocation for Justice conference in San Francisco, we had the opportunity to attend a thought provoking conference on damages. One usually thinks of the damages claimed in a law suit as being the medical costs and pain and suffering associated with bodily injury. One also thinks of damages as economic loss in the form of lost wages.
But what about economic loss that isnt measured in actual dollars lost? What about economic loss that is one degree removed from the out of pocket doolar? I'm talking about damage to credit.
The argument works this way- an injury which prevents someone from working causes the loss of income. However, bills do not just stop coming in. So the person has to fall back on using credit cards to pay for things such as groceries and utilities. Credit card balances rise but remember, the injured party still has no money coming in. When the injured party falls behind on their credit card payments, their credit rating is damaged. As you know, a bad credit rating can affect one's ability to get a loan, the interest rates on loans one does get, the ability to buy a house or car in the future among other things.
The damage to one's credit rating is measurable. The increased interest rates one would have to pay on future loans can be acurately predicted and opined about by experts. These experts are generally admissable as witnesses in court. The documentary evidence about one's credit rating is similarly admissable.
The key here is that injury can cause loss that isnt immediately observable. Injry can cause loss that while identifiable, won't necessarily rear its head until years into the future. Such damages must be included- and can be included- when an injured person seeks compensation in court.
When at the recent American Assocation for Justice conference in San Francisco, we had the opportunity to attend a thought provoking conference on damages. One usually thinks of the damages claimed in a law suit as being the medical costs and pain and suffering associated with bodily injury. One also thinks of damages as economic loss in the form of lost wages.
But what about economic loss that isnt measured in actual dollars lost? What about economic loss that is one degree removed from the out of pocket doolar? I'm talking about damage to credit.
The argument works this way- an injury which prevents someone from working causes the loss of income. However, bills do not just stop coming in. So the person has to fall back on using credit cards to pay for things such as groceries and utilities. Credit card balances rise but remember, the injured party still has no money coming in. When the injured party falls behind on their credit card payments, their credit rating is damaged. As you know, a bad credit rating can affect one's ability to get a loan, the interest rates on loans one does get, the ability to buy a house or car in the future among other things.
The damage to one's credit rating is measurable. The increased interest rates one would have to pay on future loans can be acurately predicted and opined about by experts. These experts are generally admissable as witnesses in court. The documentary evidence about one's credit rating is similarly admissable.
The key here is that injury can cause loss that isnt immediately observable. Injry can cause loss that while identifiable, won't necessarily rear its head until years into the future. Such damages must be included- and can be included- when an injured person seeks compensation in court.
Wednesday, July 15, 2009
Judge Sotomayor's Supreme Court Nomination Hearings
Litigants, including injury victims, are not simply affected by the judges and juries who hear their individual cases. They are not just affected by the laws of the state in which they live. Litigants are affected by the interpretations and rulings of law made by the United States Supreme Court.
For example, I would cite the Supreme Court's recent decision in Wyeth v. Levine. The Supreme Court ruled that people injured by drugs may file lawsuits against the drugs' manufacturers in state courts, even if the drugs in question had been approved by the Food and Drug Administration. This decision protects and perhaps even expands the rights of injury victims.
On the other side of the coin, the Supreme Court has also recently ruled against the interest of injury victims. In CSX Transportation, Inc. v Thurston Hensley, a railroad worker who's exposure to asbestos has caused him to develop asbestoses, was denied a cause of action for mental anguish.
What's my point? As you probably know, the U.S. Senate is holding the confirmation hearings for Judge Sonia Sotomayor. We at Tolmage Peskin are advocates for our clients. In that, we take no Democratic or Republican positions. As such, we take no formal position for or against Judge Sotomayor for Supreme Court justice. However, we do recognize that a new justice, with different views and interpretations of the Constitution will affect injury victims and their pursuit of compensation. That is why why are following the hearings closely.
We believe that an informed and capable public is as important informed and educated attorneys. For your convenience, click for transcripts of day 1 and day 2. of the hearings. Check back for transcripts of the rest of the hearing as it goes forward.
-Matthew Lomabrdi, Assocaite Attorney
For example, I would cite the Supreme Court's recent decision in Wyeth v. Levine. The Supreme Court ruled that people injured by drugs may file lawsuits against the drugs' manufacturers in state courts, even if the drugs in question had been approved by the Food and Drug Administration. This decision protects and perhaps even expands the rights of injury victims.
On the other side of the coin, the Supreme Court has also recently ruled against the interest of injury victims. In CSX Transportation, Inc. v Thurston Hensley, a railroad worker who's exposure to asbestos has caused him to develop asbestoses, was denied a cause of action for mental anguish.
What's my point? As you probably know, the U.S. Senate is holding the confirmation hearings for Judge Sonia Sotomayor. We at Tolmage Peskin are advocates for our clients. In that, we take no Democratic or Republican positions. As such, we take no formal position for or against Judge Sotomayor for Supreme Court justice. However, we do recognize that a new justice, with different views and interpretations of the Constitution will affect injury victims and their pursuit of compensation. That is why why are following the hearings closely.
We believe that an informed and capable public is as important informed and educated attorneys. For your convenience, click for transcripts of day 1 and day 2. of the hearings. Check back for transcripts of the rest of the hearing as it goes forward.
-Matthew Lomabrdi, Assocaite Attorney
Wednesday, May 20, 2009
Forum Selection Clauses in Contracts
In Yakin v. Tyler Corp, a case reported in last week’s NY Law Journal, the US Court of Appeals upheld a contract provision which limited the litigation of any dispute between the parties to Nassau County, NY.
There is nothing particularly unique about this decision. It simply got me thinking of forum selection clauses. We here at Tolmage Peskin have increasingly come across these contract provisions in our commercial practice. Its now routine for me to ask a potential client in the first few minutes of the initial consultation if their contract has a forum selection clause.
People have to be very careful about the contracts they sign. The general principle in NY is that forum selection clauses are valid and enforceable. In short, if you sign a contract limiting your ability to bring a suit to California, you’re going to California in all likelihood.
For both litigants and lawyers, the implications of these clauses are profoundly felt. Practically speaking, the NY may not be able to take the case. The potential client has to have a lawyer who is licensed to practice in the forum designated by the contract. If the NY lawyer isn’t admitted to the contractual forum’s bar, the potential client is forced to look elsewhere.
In my opinion, forum selection clauses make it prohibitively difficult for individuals and consumers to bring suits; that is why these clauses can be so dangerous. If you’re a consumer signing a contact: 1) you probably don’t have any input on the contact’s drafting and 2) you don’t have the resources to travel and litigate. Indeed, very few individuals or consumers can travel for litigation, even if the chosen forum is only several states away from NY (you try driving back and forth to, say, Delaware and see how costly and problematic it becomes). We had a case where the forum designated was London, England. Our client was an elderly woman; she wasn’t going to London. She could not afford the travel costs, the food and lodging costs, plus the legal fees and strain of travel. Our challenge was to keep the case here in NY. The case was resolved without having to go to London. If the case was removed to London, the defendants would have for all intents and purposes, won.
Are forum selection clauses going to disappear? No; courts and corporations like them because they provide a bright line as to where disputes are to be litigated. As a consumer, you must protect yourself. Ask if there is a forum selection clause in the contract. Ask where that forum is. See if you can negotiate a more convenient forum for yourself. Or simply walk away from the contract. You may well be better off in the long run.
-Matthew Lombardi, Associate Attorney
There is nothing particularly unique about this decision. It simply got me thinking of forum selection clauses. We here at Tolmage Peskin have increasingly come across these contract provisions in our commercial practice. Its now routine for me to ask a potential client in the first few minutes of the initial consultation if their contract has a forum selection clause.
People have to be very careful about the contracts they sign. The general principle in NY is that forum selection clauses are valid and enforceable. In short, if you sign a contract limiting your ability to bring a suit to California, you’re going to California in all likelihood.
For both litigants and lawyers, the implications of these clauses are profoundly felt. Practically speaking, the NY may not be able to take the case. The potential client has to have a lawyer who is licensed to practice in the forum designated by the contract. If the NY lawyer isn’t admitted to the contractual forum’s bar, the potential client is forced to look elsewhere.
In my opinion, forum selection clauses make it prohibitively difficult for individuals and consumers to bring suits; that is why these clauses can be so dangerous. If you’re a consumer signing a contact: 1) you probably don’t have any input on the contact’s drafting and 2) you don’t have the resources to travel and litigate. Indeed, very few individuals or consumers can travel for litigation, even if the chosen forum is only several states away from NY (you try driving back and forth to, say, Delaware and see how costly and problematic it becomes). We had a case where the forum designated was London, England. Our client was an elderly woman; she wasn’t going to London. She could not afford the travel costs, the food and lodging costs, plus the legal fees and strain of travel. Our challenge was to keep the case here in NY. The case was resolved without having to go to London. If the case was removed to London, the defendants would have for all intents and purposes, won.
Are forum selection clauses going to disappear? No; courts and corporations like them because they provide a bright line as to where disputes are to be litigated. As a consumer, you must protect yourself. Ask if there is a forum selection clause in the contract. Ask where that forum is. See if you can negotiate a more convenient forum for yourself. Or simply walk away from the contract. You may well be better off in the long run.
-Matthew Lombardi, Associate Attorney
Wednesday, May 13, 2009
Your Internet and the legal world
Social Networking sites such as Facebook, MySpace, and Twitter, as well as the proliferation of blogs have changed the way we communicate with each other and present ourselves to the world.
As a general matter, anything you place on the web is open for the public to see. If you have a public MySpace page or blog for example, that content is fair game for a lawyer. We had a case in which our client was a blogger. The defense Google'd our client's name, found his blog, downloaded exerpts and questioned him line by line from it during his deposition. As much as our firm was angered by such a tactic, the fact is our client's blog was discoverable.
We had a case where a minor, unfortunately, was one of the defendants. The minor defendant had a MySapce page on which he stated "booze" was among his favorite things. We found the page. Given the nature of the litigation, we questioned him thoroughly about underage drinking and what he meant on his MySpace page.
Many people make their social networking website pages private. I do not believe making a page "private" can prevent the content from being used in litigation. Federal courts outside of NY have upheld subpoenas to view and take information from litigants' private social networking site pages. I believe this precedent could also be expanded to content that users have taken off their sites, but is still stored in the social networking websites' archives and databases.
Twitter presents an interesting case. Twitter is much more fluid, with posts coming in the form of first person statements. You're talking via Twitter to your Internet audience about your day, you're feelings, etc in almost real time. I would argue that your Twitter posts could become admissible evidence via the "excited utterance", "present sense impressions," or even "statement against interest" exceptions to the NY hearsay rule.
Jurors' postings on the web are also fair game. There have been an increasing number of motions to set aside the verdict based upon what jurors have posted on the Internet. If you're on a jury, I would counsel you to be very circumspect about what you write concerning a case you participated in. And please, please, don't write about a case while its still going on.
What s the bottom line here? The bottom line is that courts are starting to recognize the information individuals post on the web. Lawyers are increasingly finding ways to utilize what you post about yourself and others. I wouldn't tell you to swear off social networking sites like Facebook or Twitter. I would just say: be aware and know that what you post can and will resurface.
-Matthew Lombardi, Associate Attorney
As a general matter, anything you place on the web is open for the public to see. If you have a public MySpace page or blog for example, that content is fair game for a lawyer. We had a case in which our client was a blogger. The defense Google'd our client's name, found his blog, downloaded exerpts and questioned him line by line from it during his deposition. As much as our firm was angered by such a tactic, the fact is our client's blog was discoverable.
We had a case where a minor, unfortunately, was one of the defendants. The minor defendant had a MySapce page on which he stated "booze" was among his favorite things. We found the page. Given the nature of the litigation, we questioned him thoroughly about underage drinking and what he meant on his MySpace page.
Many people make their social networking website pages private. I do not believe making a page "private" can prevent the content from being used in litigation. Federal courts outside of NY have upheld subpoenas to view and take information from litigants' private social networking site pages. I believe this precedent could also be expanded to content that users have taken off their sites, but is still stored in the social networking websites' archives and databases.
Twitter presents an interesting case. Twitter is much more fluid, with posts coming in the form of first person statements. You're talking via Twitter to your Internet audience about your day, you're feelings, etc in almost real time. I would argue that your Twitter posts could become admissible evidence via the "excited utterance", "present sense impressions," or even "statement against interest" exceptions to the NY hearsay rule.
Jurors' postings on the web are also fair game. There have been an increasing number of motions to set aside the verdict based upon what jurors have posted on the Internet. If you're on a jury, I would counsel you to be very circumspect about what you write concerning a case you participated in. And please, please, don't write about a case while its still going on.
What s the bottom line here? The bottom line is that courts are starting to recognize the information individuals post on the web. Lawyers are increasingly finding ways to utilize what you post about yourself and others. I wouldn't tell you to swear off social networking sites like Facebook or Twitter. I would just say: be aware and know that what you post can and will resurface.
-Matthew Lombardi, Associate Attorney
Tuesday, May 5, 2009
Advocating Outside the Courtroom
We here at Tolmage Peskin believe that advocating for our clients doesn't stop when you exit the four walls of the courtroom. We know that injured people are not only affected by the individual facts and circumstances of their cases, they are affected by the laws and policies set forth by New York State.
Because our clients are affected by elements outside their individual cases, we are members of the New York State Trial Lawyers Association. NYSTLA is a state-wide organization of attorneys who seek "to promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers."
On April 28, NYSTLA organized a group of over 170 lawyers to go to Albany and talk to lawmakers in the New York State Assembly and New York State Senate. I had the opportunity to be part of that group. We talked to these lawmakers about issues that affect injured New Yorkers. We tried to impress upon them that the hurt and injured are among the most vulnerable subsets of people. That injured people need to be assured access to the court house. That laws must be strengthened so that the rights of the injured are protected just as much as the rights of insurance companies and landlords are protected. Many of the issues we talked to lawmakers about can be found here.
I was encouraged by the NYSTLA trip to Albany. The lawmakers seemed very receptive to what NYSTLA attorneys had to share with them. I know the wheels of government turn slow; they are supposed to. But I believe that the advocacy we engaged in on behalf of the injured, coupled with a sustained campaign to educate people about our issues can bring about change. This sort of work is important; so that if you ever find yourself injured, you have the full protections afforded under law at your disposal.
Because our clients are affected by elements outside their individual cases, we are members of the New York State Trial Lawyers Association. NYSTLA is a state-wide organization of attorneys who seek "to promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers."
On April 28, NYSTLA organized a group of over 170 lawyers to go to Albany and talk to lawmakers in the New York State Assembly and New York State Senate. I had the opportunity to be part of that group. We talked to these lawmakers about issues that affect injured New Yorkers. We tried to impress upon them that the hurt and injured are among the most vulnerable subsets of people. That injured people need to be assured access to the court house. That laws must be strengthened so that the rights of the injured are protected just as much as the rights of insurance companies and landlords are protected. Many of the issues we talked to lawmakers about can be found here.
I was encouraged by the NYSTLA trip to Albany. The lawmakers seemed very receptive to what NYSTLA attorneys had to share with them. I know the wheels of government turn slow; they are supposed to. But I believe that the advocacy we engaged in on behalf of the injured, coupled with a sustained campaign to educate people about our issues can bring about change. This sort of work is important; so that if you ever find yourself injured, you have the full protections afforded under law at your disposal.
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