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Answers to
your Questions
If I have been hurt, does that mean I definitely have
a personal injury lawsuit?
No, that is a very common misconception. You
only have a lawsuit if there is some "negligent" party
who caused your injury.
What
is "negligence"?
A failure to act reasonably in a situation is
considered negligence. This includes either doing something
carelessly or failing to do something that you
should have done; i.e. driving without your
headlights on, driving too fast, failing to fix a
rickety set of stairs, etc. The general idea
is that you didn't do something that you should have
done OR you did something carelessly that you
should not have done.
How
is "negligence" determined?
Negligence does not simply mean doing something
wrong. All of the following elements must exist for
an act to be considered negligent and for you to
have a valid lawsuit:
a. Lack of
reasonable care
b. Breach of duty
c. Injury to the victim
d. Forseeability (knowing an act would occur based
on the circumstances) and
e. Damages
What
are "punitive damages"?
Damages awarded to punish the defendant, above those
damages awarded for injuries or medical care.
What
does "pain and suffering damages" include?
This would generally be money awarded over and above
medical costs and lost wages, specifically for the
emotional suffering and the physical pain an injury victim
endured. In N.Y., pain and suffering includes
many things including: loss of enjoyment of
life, grief, sorrow, etc.
What is a "tort"?
The word "tort" comes from the Latin word, tortious,
which means wrong. A "negligent" tort occurs
when someone through carelessness causes harm or
loss to another person or his or her property.
What
is an "intentional tort"?
Conduct intended to harm another person or their
property. Examples include assault, battery, fraud, misrepresentation
and slander.
What is a
"plaintiff"?
The "plaintiff" is the person who has been injured
or damaged.
What is a
"defendant"?
The "defendant" is the person who caused the
plaintiff's injuries.
What
is "comparative negligence"?
It is a common defense to a negligence claim stating
that the plaintiff's negligence contributed to their
injuries.
N.Y. is
considered a "pure" comparative negligence state.
That means that generally, any recovery the
plaintiff gets against the
negligent party is reduced by whatever % it is
determined that your negligence may have contributed
to your injury. For instance, if you were
involved in an intersection collision and the jury
found that the accident was 75% the other guy's
fault and 25% your fault, any verdict against the
other driver would be reduced by 25% representing
your % of fault. In N.Y., a plaintiff can
recover even if he was more than 50% responsible for
causing his injuries. For example, if
plaintiff was 90% responsible for his injuries,
he/she could recover but his recovery would be
limited to only 10% of the verdict.
Pennsylvania has adopted a "modified rule" of
comparative negligence. A plaintiff's recovery is
barred only if his contributory negligence is
greater than the causal negligence of the defendants
against whom recovery is sought. 42 Pa. Cons. Stat.
§ 7102(a) (LEXIS 2003). Otherwise, the plaintiff's
damages are diminished in proportion to the amount
of negligence attributable to him. What this
means is that in PA a plaintiff cannot recover
anything if he/she is more than 50% responsible for
causing his injuries.
There ARE
exceptions to these
general rules that your attorney can explain to you
if they apply in your case.
What
is the statute of limitation in a civil case?
In NY, it is generally 3 years from the date the
incident occurred although there are many exceptions
to this general rule so the best advice is to
promptly consult with an experienced personal injury
attorney. In Pennsylvania, the general time
limit is 2 years.
I've
heard the phrase "assumption of risk." What does it
mean?
It is used as part of a defendant's defense in an
attempt to say that your injury was your fault in
assuming the risk of getting hurt as opposed to the
defendant's fault in having injured you. A judge
and/or jury will determine whether this defense has
merit or not. Examples of assuming the risk are:
a. You've
discovered the risk, but chose to disregard it,
b. You've failed to properly maintain an item and
therefore you have assumed the risk of being hurt by
it, or
c. You've failed to follow the enclosed directions
and therefore you have assumed the risk of being
hurt by it.
What
is a "class action" lawsuit?
When a large group of plaintiffs sue a large group
of defendants, naming a representative in place of
the entire group. Examples would be the tobacco
industry suits, the asbestos cases and the suits
against the drug manufactures of the popular diet
medications, such as Fen-Phen. The personal injury
attorneys at the Ziff Law Firm have prior experience
with class action suits and can advise you whether a
class action is in your best interest. For instance,
Attorney Jim Reed is currently handling several
cases for local persons who suffered heart injuries
as a result of taking Vioxx which has recently been
pulled from the market by its manufacturer.
Do I have to pay taxes on a settlement for my
injuries?
No, generally you do not have to pay taxes on a
settlement unless a portion of your settlement was
specifically designated as compensation for lost
wages. The other exceptions to this general rule are
set forth below. Most good personal injury attorneys
are aware of these exceptions and will make sure
that your settlement is properly structured so as to
avoid or minimize any taxation.
In New York and
Pennsylvania, compensation for your
injuries and pain and suffering is tax free. You will receive notification
from the insurance company that paid you
compensation with documentation about your
settlement. You need to give that to your
accountant. However, there are no taxes to be paid
on your settlement.
Once you receive the settlement proceeds, the
taxability of that money is just like any other
money you invest or put in a savings account.
When you invest those monies into taxable
investments, then any profit or gain you achieve is
obviously taxable.
In a death case, an award for pain and suffering is
generally taxable to the estate. In some instances
there are legal ways to allocate the monies to the
wrongful death cause of action (which is not taxable
to the estate) rather than the pain and suffering
cause of action (which is taxable to the estate).
It's bad enough being injured, and then having to
bring a lawsuit to obtain proper compensation and
payments for your disabilities. Can you imagine the
impact it would have if you then had to pay income
taxes on those monies? Luckily, the government
realized that injury settlements are not earned
income. Rather, they compensate an injured victim
for the pain, suffering, and disabilities they
suffered at the hands of another's carelessness.
Accordingly, they generally (and thankfully!) are
NOT taxable.
IF A PERSON IS SERVED ALCOHOL AFTER THEY ARE VISIBLY
INTOXICATED AND THEY ARE THEN INJURED, CAN THEY
BRING A LAWSUIT AGAINST THE BAR THAT SERVED THEM?
N.Y. law
recognizes a cause of action on behalf of those
persons who are damaged as a result of injuries or
death caused to a person who was served alcohol
while in a visibly intoxicated or
drunk condition. This is called "dram shop"
liability. Under this cause of action, the
intoxicated person himself does NOT have a claim
but the dependents of the intoxicated person DO
have a claim. The public policy behind this law
is that a bar or tavern (formerly called "dram
shops") should be actively discouraged from
serving visibly intoxicated patrons and that the
dependents of the intoxicated person should be
compensated if the patron is improperly served
when they are already drunk.
Please see our webpage on
Personal Injury
for more information. |
