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Let’s get concrete for just a minute. Some of this “damages in personal injury” material is kind of abstract.  Let’s bring it down to earth with an actual case, involving a tragic, fatal motorcycle accident. How are pain and suffering and loss of enjoyment of life established if there was a traumatic incident that led to death? Consider this (very unfortunate, sad) fact pattern:  A motorcyclist going straight with the right-of-way strikes the passenger side of an automobile making a left turn from the opposite lane crossing directly across the path of the motorcycle.  The driver of the automobile testifies at deposition: “I never saw the motorcycle before I turned.”  That’s negligence as a matter of law as against the car driver. Now for damages.

In this and the blog entries that follow, we will explain the different types of general damages recognized under New York State negligence law. First and foremost, let’s address the two “big” general damages categories in personal injury: (i) pain and suffering; and (ii) loss of enjoyment of life. In New York law, they go together like ham and eggs. If an injured plaintiff sustains pain and suffering, he or she almost always can identify and quantify related loss of enjoyment of life.  

In our last blog post, at Part III, we began the discussion about the insurance industry utilizing computer software to analyze personal injury claims, including equalizing claims payments across localities, regions and the U.S. generally.  The name of this computerized game is “Reduce Risk, Raise Profits, Repeat.” To really understand the liability insurance business in America, you have to grasp just one concept: risk.  That is all the insurance companies care about: minimizing, reducing and even eliminating risk that they will have to pay money -- big money, little money, any money at all -- to resolve a claim for damages against their insureds.

According to Black’s Law Dictionary, approximately 95 percent of personal injury cases in the U.S. settle.  The other five (5) percent are cases where: (i) the insurance carrier thinks the demand is too high and the case defensible, or (ii) the plaintiff has an outstanding case that appears a sure winner and the offer is too low -- so the case goes to trial.  Black’s tells us further that of the 5 percent that go to trial, approximately 90 percent of the time plaintiffs lose.  Of those trial cases where a plaintiff does win, damages are better and paid at a higher monetary rate when the case is before a trial judge, rather than a jury.

Damages in personal injury can seem mysterious to both attorneys and laypersons alike.  In this series of posts, we attempt to lift the veil and shed light on these concepts.  The ultimate cost of damages falls upon the party who was negligent and caused the incident and injuries (called the “tortfeasor”), and their insurer.  In this post, Part II, we drill down deeper into those concepts, especially in actual practice in the real world of tort settlements and litigation.  

In this post, we begin the first of a series of informative blog analyses and discussions regarding the award of monetary damages in negligence for personal injury cases in New York State. These blog posts are not meant to offer specific legal advice, which can only occur where an attorney-client relationship exists, but we trust they will be helpful to you in a general way.

It is with great honor I can say I have been selected to the list of Upstate New York Super Lawyers again for 2018.  The announcement was just made.

It was a jaw-dropping verdict: on July 12, 2018, a jury in Missouri awarded 22 women who were alleged to have contracted ovarian cancer by using Johnson & Johnson baby powder $550 million in compensatory damages and $4.14 billion in punitive damages, for a total award of almost $4.7 billion.  The plaintiffs in this case alleged that the Johnson & Johnson talc-based powders, sold as “Baby Powder” and “Shower to Shower” contained asbestos -- a well-known carcinogen -- and, when applied as a feminine-hygiene product, was absorbed through the skin and caused ovarian cancer.  Six of the 22 women plaintiffs had died from their cancer at the time of trial.

In New York State, for on-premises pharmaceutical delivery/pick-up by a patient or patient representative, pharmacists have a mandatory, non-delegable legal duty, pursuant to 8 N.Y.C.R.R. § 63.6(b)(8)(i)(a), to personally counsel each patient or patient representative “on the premises of the pharmacy … who presents a prescription … in person in a face-to-face meeting whenever practicable.

But imagine for a moment you are blind or deaf, or have a serious vision impairment or a utilize a cochlear implant for hearing loss.  What would you do to ensure you know all about your medicine in consultation with a pharmacist referring to a prescription label you cannot see, or a speaking with a pharmacist you cannot hear?

I have an interest and experience in providing legal help to individuals with all kinds of sensory impairments and disabilities, to ensure they have proper accommodations and access to equal, effective communication under New York State and Federal law.  This includes the New York State Civil Rights Law, N.Y.S. Human Rights Law, and the Americans with Disabilities Act (ADA).

Today we begin to talk about access to pharmacies for individuals who are blind and vision-impaired.

Curtilage.  Sounds like something that describes yogurt gone bad.  Or something your doctor scrapes off an infected wound. 

Nothing having to do with motorcycles would ever come to mind when using the word “curtilage.”

Until now. Because a new U.S. Supreme Court decision, Collins v. Virginia, 584 U.S. ___ (2018), was just handed down last week that held the automobile exception to the Fourth Amendment does not permit the warrantless entry of a home or its surrounding area -- the curtilage -- in order to search a vehicle therein.

It’s “Speed Week” this week in New York State.  The weather is nice, roads are clear, and people are out in their cars and trucks.  So law enforcement is out, too, with extra patrols working the highways and byways all around New York State looking for speeders and aggressive drivers on the road. Think you can’t get caught?  In 2017 during “Speed Week,” police in New York State issued more than 21,000 tickets to motorists across the state -- in one week.

Being pulled over for speeding gives the police all kinds of extra opportunities to look at your car, question you, possibly even ask you to get out of the car to conduct a personal or vehicle search, depending upon the circumstances. That’s when the trouble begins.

On Tuesday, June 5, 2018, I was sitting in the evening on the West Side piers in lower Manhattan when I saw the actual construction scene set forth above.  I watched, dumbfounded, as the laborers worked high above the ground and water.  I could see no safety gear in use as the workers actively crawled and walked all over the superstructure as the boom trucks delivered huge loads of decking at least three or four stories up….

In 2005, Congress delivered (yet another) sweet chocolate bonbon to major corporate enterprises when it enacted what is commonly called the “Graves Amendment.”  The Graves Amendment was enacted to shield and protect motor vehicle leasing and rental companies from vicarious liability as “owners” of the millions of cars and trucks they lease or rent to consumers, either directly or through vehicle fleet and rental agencies.

But maybe those companies are not completely off the hook.  There’s a fly in the Graves Amendment soup that a sharp plaintiff’s lawyer and law firm in Buffalo, New York, has identified and exploited -- to the benefit of a dead woman horribly killed by a negligent truck driver operating a leased tractor-trailer in New York: Stratton v Wallace, 2014 U.S. Dist. LEXIS 105816 (W.D.N.Y., July 31, 2014).

New York’s highest Court, the Court of Appeals, has just issued what can only be called a seismic-shift decision that greatly benefits injured persons in New York State.

The case, Carlos Rodriguez v. City of New York, 2018 N.Y. LEXIS 793 (2018), issued on April 3, 2018, makes the summary judgment process on liability much more fair and equitable for injured plaintiffs.

How is loss of consciousness after a personal injury accident measured to determine pain and suffering damages?

In a brain injury setting following a car crash or motorcycle accident, construction injury, slip and fall or medical malpractice incident, loss of consciousness -- temporary or permanent -- raises the question of whether and to what extent the injured party is conscious “at some level” of his or her pain and suffering, sufficient to establish general pain and suffering damages, for example, at New York State Pattern Jury Instructions § 2:280.

Here’s another report from California about how badly self-driving, “autonomous” vehicles operate, recently described by the online tech newspaper The Register:

“Self-driving cars still suck.  On the subject of self-driving cars, a recent report from the California’s Department of Motor Vehicles reveals that autonomous vehicles still make simple mistakes. The DMV asked eight companies: Baidu, Delphi Automotive/APTIV PC, Drive.ai, GM Cruise, Nissan, Telenav, Waymo and Zoox to identify common failures and how often human drivers had to take over during mishaps….

Will self-driving cars replace human drivers?

 Probably someday.  Sooner rather than later.  But hopefully for those of us who love cars, we’ll continue to have the option of driving ourselves, in addition to having our car or truck drive us around. However, until that day, self-driving cars are going to be dangerous to be around. They are being tested in real-world driving scenarios in California, Arizona and now Connecticut, and no one seems to think that’s a problem. Perhaps because the companies developing these cars are so big, powerful and wealthy they can bend the various state Departments of Motor Vehicles to their will?

Unfortunately, I was going to the public library yesterday morning in a small but busy town near my home, and as I traveled down the main street, I saw the flashing red and blue lights of multiple emergency vehicles and police cars at the intersection where I would turn right into the library.  Across the street at the intersection was a donut shop.  As I approached, I saw a huge, beautiful Harley-Davidson loaded on a flatbed wrecker, its entire front wheel and fork assembly ripped off and dropped on the flatbed next to the cycle.  Adjacent to the wrecker and the police cars was a small blue sedan, front end destroyed, its hood up, over the curb and pointing in the direction of the donut shop.  There were fluids all over the road.

You’re a plaintiff’’s personal injury attorney in New York State, and you mostly practice in New York State court.  However, occasionally you end up in Federal court, likely removed from state court on the grounds of diversity jurisdiction, 28 U.S.C. § 1441.  Or, you might consider just commencing that multi-state motor vehicle collision claim in Federal court, based upon the belief you will be removed to Federal court by the defendants on diversity grounds anyway.

Two important cautions are in order for New York State plaintiff’s practitioners who become involved in diversity jurisdiction in Federal court.