New York Law School Faculty and Students

Before you get started on the legal process, it’s helpful to have a general sense of what to expect. Here’s an overview of personal injury lawsuits and some rules affecting them.

When you bring a lawsuit for compensation, you often need to prove that the other party was “negligent.” In most everyday situations, this means they didn’t act as carefully as a reasonable person would have. For instance, a reasonable person wouldn’t run a red light because it’s dangerous. If a driver runs a red light and causes an accident, an injured person could claim that the driver was negligent.

If someone gets injured by an employee while they were working, the victim might have a claim against the employer too. This is known as “vicarious liability,” meaning the employer can be held responsible even if they didn’t directly do anything wrong.

Sometimes there are different ways to prove fault, like “strict liability,” which applies in specific situations. With strict liability, you don't need to show that the other party was careless. You just need to prove that you were injured due to a condition or event for which New York law imposes strict liability. For instance, if you’re hurt by a defective product, you can often file a strict liability claim without needing to prove negligence.

Another way to seek compensation for injuries caused by a defective product is through a “breach of warranty” claim. This means that the product didn’t live up to certain promises that were made or implied about it, and you got injured as a result.

One unique category of personal injury cases is known as “intentional torts.” These involve situations where the defendant intended to harm the victim, such as in cases of assault and battery. Victims can often get compensation even if the defendant isn't convicted of a related crime. This is because proving liability in a civil case is generally easier than securing a criminal conviction.

If you’re injured and considering a lawsuit, it's important to know that you have a limited time to file. This deadline is called the statute of limitations. Meeting this deadline is crucial because if you miss it, the defendant can usually get the case dismissed, regardless of their fault. In New York, the main statute of limitations for personal injury cases is three years. However, there are some variations. For instance, the statute of limitations for medical malpractice cases is two and a half years.

Even if you have time under the statute of limitations, it's a good idea to start your case as soon as possible. Acting quickly helps preserve important evidence that can prove liability and damages. Also, it signals to the defendant or their insurer that you’re serious about your case.

Some other rules to keep in mind when bringing a personal injury lawsuit include:

• Comparative negligence: you can still get damages even if you were partly responsible for causing your own injuries, but these will be reduced in proportion to your percentage of fault
• No damages caps: unlike some states, New York doesn’t limit the amount of damages that you can get for your injuries
• No-fault rules for car accidents: due to the no-fault system in New York, you usually can get non-economic damages like pain and suffering after a crash only if you suffered a “serious injury” as the law defines this term
• Suing the government: the deadline for bringing these cases is shorter than the ordinary statute of limitations, and an injured person usually needs to file a “notice of claim” within 90 days

These aren’t the only nuances that might play a role in your case. You should talk to an attorney as soon as possible so that they can spot any potential concerns or obstacles.

Most personal injury lawsuits don’t actually go to trial. Instead, it's much more common for the parties to reach a settlement out of court. This can happen early on or much later in the legal process.

A settlement means the defendant or their insurer agrees to pay a certain amount of money to the injured person. In return, the injured person agrees to drop their claims related to the injury. This can be beneficial for both sides because it avoids the uncertainty of a trial. Even if you believe you have a strong case, there's no guarantee how a judge or jury will view it. Also, settling is usually quicker, allowing the injured person to receive compensation sooner, which can be crucial if they need the money urgently.

Even if you’re feeling financial pressure, it’s important not to rush into accepting the first offer from a defendant or insurer. They might try to settle the case for much less than it's worth to save money. Engaging in several rounds of negotiations can often lead to a more appropriate settlement that truly reflects the harm you've suffered. This is especially crucial if you have serious injuries that may need future treatment or affect your ability to work and enjoy activities. Keep in mind that once you agree to a settlement and release your claims, you likely can't go back and ask for more compensation.

It's usually a good idea to hire an attorney to guide you through the legal process. The other side will almost certainly have attorneys working for them, so having your own attorney helps level the playing field. Additionally, it can relieve you of the stress while you deal with the physical and emotional impact of your injuries. Building a strong case isn't as simple as it may seem. An experienced attorney can develop a strategy to maximize your compensation and gather various types of evidence to support your claim. Depending on the situation, these might include:

• Photos or videos showing what happened
• Testimony from any eyewitnesses of the accident
• Medical records of your injuries
• Testimony from doctors and other experts about the scope of your injuries, potential treatments, and how any lasting impairments may affect aspects of your life moving forward, such as your ability to work or enjoy certain activities
• Bills and pay stubs showing the medical costs and lost income that you incurred
• Statements from people who know you and can explain how your life has changed because of the accident

You can also benefit from your attorney's advice on how much your case is worth. Having handled similar cases before, they can give you a good idea of what to expect. This insight can help you decide whether to accept a settlement offer or proceed to trial. If your case does go to trial, your attorney will be familiar with court rules and procedures, making them more comfortable presenting your case before a judge or jury.

Choosing the right personal injury lawyer in New York can feel overwhelming, given the many options available. Each attorney has their own unique personality and background. Sometimes you might get a referral from someone you know who has previously hired an attorney. However, many people find their attorney online through resources like the Justia Lawyer Directory. This can help you compare different lawyers and find the best fit for your needs.

A key factor to consider is the lawyer's relevant experience. Many attorneys specialize in specific areas of personal injury law. It's important to choose a lawyer who has handled cases similar to yours. For example, if you’re filing a medical malpractice claim, you wouldn't want to hire an attorney who almost always deals with car accident cases. Similarly, if you’re suing a grocery store for a slip and fall, it wouldn’t make sense to work with someone who mostly focuses on defective product lawsuits. Make sure your attorney has the right experience to effectively handle your specific type of case.

You can learn about an attorney's areas of focus by exploring their website. This will also give you a chance to see the successes they've achieved for previous clients. You’ll probably want to check out client reviews and any peer reviews by other attorneys as well.

The New York State Bar Association has specific rules of professional conduct that all attorneys must follow. It’s important to ensure that your attorney doesn’t have a history of constantly breaking these rules. However, keep in mind that a minor violation from many years ago might not be a deal-breaker.

It's a good idea to create a shortlist of personal injury lawyers and schedule a consultation with each of them. During these conversations, you can outline the basics of your case and ask some general questions. Pay attention to how comfortable you feel talking to the attorney and whether you have confidence in their ability to represent you effectively.

Careless or intentional acts can cause injuries in many settings. Here are some of the most common examples:

• Motor vehicle collisions, including car, truck, motorcycle, and bicycle accidents
• Slip and falls, trip and falls, and other accidents on property
• Defective products
• Medical malpractice
• Nursing home negligence and abuse
• Construction accidents
• Dog bites

If you get injured on the job, you can likely receive workers’ compensation benefits through your employer or their insurer. These benefits can cover your medical expenses and a portion of your missed wages. However, workers’ compensation does not provide non-economic damages like pain and suffering, and you can't sue your employer for these damages. If a third party (someone other than your employer or a coworker) at least partly caused your injuries, you might be able to file a lawsuit against them. This can allow you to recover pain and suffering and other damages that aren’t available through the workers’ comp system.

A recent study on jury verdicts in personal injury cases in New York revealed that the median damages award was $287,628. In other words, half the cases resulted in lower awards than that number, and half the cases resulted in greater awards. This is far higher than the national median for personal injury damages. It’s thought that this may be partly because of the no-fault system for car accident cases. This keeps many relatively low-value claims out of court entirely because no-fault insurance covers them.

Here are some notable personal injury settlements and verdicts recently issued in New York:

• $287 million for a fatal motorcycle accident caused by a defective software system
• $120 million for a delayed diagnosis that resulted in permanent brain damage
• $32 million for a hotel guest who was injured when a bathroom door fell on her after the hotel failed to repair its broken handle
• $3 million in a birth injury lawsuit that alleged a failure to conduct a timely emergency C-section in response to signs of fetal distress
• $2.4 million for a passenger in a stopped vehicle that was rear-ended by a bus

Note that you shouldn’t expect to get the same amount as a verdict or settlement in a particular case. The outcome of each claim or lawsuit depends on the specific facts.

The Institute for Traffic Safety Management & Research provides a summary of car crashes throughout New York State in its Traffic Safety Statistical Repository. Data for 2023 show that there were 381,306 total car crashes in New York State, including 1,022 fatal crashes and 113,576 crashes resulting in injuries. Car accidents resulted in 1,104 deaths and 12,794 serious injuries, as well as 20,322 moderate injuries and 118,040 minor injuries. (Several thousand additional injuries were unknown severity.)

The data also single out certain types of crashes. For example, there were:

• 5,704 crashes involving motorcycles, of which 188 were fatal and 4,470 caused injuries
• 4,651 crashes involving pedestrians, of which 307 were fatal and 14,098 caused injuries
• 8,268 crashes involving bicycles, of which 52 were fatal and 7,781 caused injuries
• 16,801 crashes involving large trucks, of which 86 were fatal and 4,461 caused injuries

The TSSR also provides reports on crash data by region, county, and municipality.

A study of fatal accidents throughout New York State identified certain stretches of road as particularly deadly. Here are the top 10 roads on the list:

• Third Avenue from Seventh Street to 52nd Street in Brooklyn
• Atlantic Avenue from Rochester Avenue to 85th Street in Brooklyn and Queens
• County Route 93 from Richmond Boulevard to 13th Street in Islip and Bohemia
• Lake Avenue from Denise Road to Phelps Avenue in Rochester
• State Route 27 from Albany Avenue to Harvard Road in Babylon
• Bruckner Boulevard from Balcom Avenue to Jackson Avenue in the Bronx
• Woodhaven Boulevard from 91st Avenue to Dry Harbor Road in Middle Village and Queens
• Northern Boulevard from 70th Street to Main Street in Queens
• Flatbush Avenue from Avenue V to Midwood Street in Brooklyn
• South Conduit Avenue from Sutter Avenue to Rockaway Boulevard in Middle Village and Queens

It’s not surprising that most of these roads are in the New York City region, which tends to have higher volumes of traffic than other parts of the state.

If you've been injured in a car accident, obtaining a copy of the police report can be crucial for your insurance claim or lawsuit. For accidents investigated by the New York State Police, you can request the report through the New York DMV by submitting Form MV-198C. However, if the accident happened on the New York State Thruway or certain related highways, you'll need to fill out Form TA-W4310 and send it to the New York State Thruway Authority. If a different police department handled the investigation, it's best to contact that department directly to find out their specific process for obtaining the report.

If you feel that a doctor has given you inadequate care, you can file a complaint with the Division of Professional Medical Conduct at the New York State Department of Health. This agency can also provide information about any complaints previously filed against doctors. Should you encounter substandard services at a hospital or clinic in New York State, you can report your concerns by calling the Hospital Complaints Hotline at 800-804-5447.

For issues related to nursing homes, the Division of Nursing Home and ICF/IID Surveillance within the Department of Health is responsible for investigating complaints and incidents that may involve state or federal regulatory violations. You can submit a complaint about a nursing home online or by calling the Nursing Home Complaint Hotline at 888-201-4563.

If you have been injured as a result of a crime, the New York State Office of Victim Services offers a range of resources to help you. Additionally, there may be local programs available in your city or county. For example, the Crime Victim Assistance Program provided by the New York City Police Department offers support to those affected by crime.

If you’ve been injured at work, the New York State Workers’ Compensation Board is a valuable resource. For example, they offer an "Injured Worker’s Toolkit," which explains how the workers' compensation system works and guides you through the process of filing a claim.

1. What should I do after an accident?

   If you are involved in an accident, it's important to gather as much evidence as possible. Take photos of the accident scene and collect contact information from any witnesses. Even if you don't feel severe pain, it's wise to see a doctor, since some injuries may not be immediately apparent and could worsen over time if untreated. Keep thorough records of all medical treatments and any related expenses, including bills and receipts. It's also crucial to obtain copies of any official reports related to the accident, such as a police report for a car crash or an incident report from your employer if it was a workplace accident. Lastly, consider consulting an attorney to discuss your legal options.

2. How long will my case take?

   It's hard to predict exactly how long it will take to resolve a case. While some cases may be wrapped up in a few months, others could take years to conclude. It's generally advisable not to rush into a settlement that might not fully compensate you, since once you agree to a settlement, you typically can't ask for more money later. Taking the time to ensure you receive a fair settlement is usually in your best interest.

3. What is a serious injury in a New York car accident case?

   New York law lists certain types of injuries that are considered serious injuries, such as death, a broken bone, significant disfigurement, the permanent loss of use of a body organ, member, function, or system, or a significant limitation of use of a body function or system. In addition, an injury or impairment is considered a serious injury if it prevents the victim from performing their usual daily activities for at least 90 days during the 180 days after the accident. You generally can get pain and suffering damages for a car crash only if you suffered a serious injury.

4. What is a class action?

   A class action is a type of lawsuit brought by many injured people (or other plaintiffs) who have suffered the same type of harm caused by the same defendant. For example, it may be an efficient way to handle a situation when a single defective product has injured numerous consumers. A judge will need to approve any settlement in a class action before it takes effect.

5. What are some ways in which a product can be defective?

   Defects in products can happen in several ways. Sometimes a defect occurs during the manufacturing process, which usually means that it affected only one item or a specific batch of items. In other instances, the defect is in the design itself, affecting all items in that particular product line. There can also be marketing defects, when a product lacks proper warnings or instructions about potential risks associated with its use.