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Frequently Asked Questions (FAQs)

Personal Injury Lawsuit Questions

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. ยง 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.