Personal Injury

Published on: September 18, 2023

Res ipsa loquiter did the apply because the defendant did not have exclusive control. Dermatossian v. New York City Transit Authority 67 N.Y.2d 219 (N.Y. 1986)

by Stephen Bilkis

The exclusive control doctrine is a legal principle often invoked in personal injury cases, particularly those involving negligence claims. It forms a critical component of the res ipsa loquitur doctrine, a Latin phrase that translates to “the thing speaks for itself.” Res ipsa loquitur allows a plaintiff to establish a presumption of negligence based on the very occurrence of an accident or injury and the likelihood that such events don’t typically occur in the absence of negligence. Within the context of personal injury law, the exclusive control doctrine posits that if an injury or accident occurs under circumstances where the defendant had exclusive control over the instrumentality or situation that caused the harm, and the plaintiff did not contribute to the injury in any way, the law presumes that negligence by the defendant was the cause.

Dermatossian v New York City Tr. Auth., 67 NY2d 219, centers around Joseph Dermatossian, a passenger on a New York City Transit Authority (NYCTA) bus, who claimed to have suffered injuries due to a defective grab handle. A grab handle on a bus is a safety device designed to assist passengers in maintaining their balance and stability while standing or moving within the vehicle. It is typically a sturdy, handgrip-like structure that passengers can hold onto for support. Grab handles are strategically positioned throughout the bus to provide passengers with something to hold onto during sudden stops, sharp turns, or other movements that might cause imbalance.

Factual Background

Published on: November 9, 2022

In a personal injury case, because there was a factual conflict, res ipsa loquitur did not apply. Morejon v. Rais Construction Company, 818 N.Y.S.2d 792 (2006)

by Stephen Bilkis

Res ipsa loquitur is a Latin phrase, which means “the thing speaks for itself.” In order to prevail in a personal injury case, the plaintiff must show that the defendant’s negligent or wrongful actions cause the plaintiff’s injury. Ideally, the plaintiff would have access to direct evidence such as eyewitness testimony, but this is not always the case. In some instances, the only evidence that the plaintiff has is circumstantial evidence. In New York, the doctrine of res ipsa loquitur means that circumstantial evidence may be sufficient to prove liability if the injury was would not normally occur absent negligence. In Morejon v. Rais Construction Company, the plaintiff sought a summary judgement motion based on res ipsa loquitur

Backgound

Fabio Pardo was working for Rais Construction on December 26, 1998, when while delivering materials to a private residence that was undergoing renovation, a roll of roofing material fell from a roof at a construction site and hit Pardo in the head. Eventually, Pardo died. The plaintiff estate of Fabio Pardo filed a lawsuit against defendant Rais Construction Company alleging that Pardo was fatally injured at a construction job while working for Rais Construction because of Rais Construction’s negligence.

Published on: November 7, 2022

Appellate Division found jury award for medical expenses to be excessive. Reinoso v. N.Y.C. Transit Auth., No. 2022-02242 (N.Y. App. Div. Apr. 5, 2022)

by Stephen Bilkis

In personal injury cases, there are different types of compensation that may be awarded, including past medical expenses, future medical expenses, past pain and suffering, and future pain and suffering. Medical expenses are economic damages. Past medical expenses are relatively easy to determine as they are simply the bills from the victim’s doctor, hospital, and therapists, as well as the fees for medication and medical equipment. Fees for future medical expenses are more speculative in that it would be based on medical testimony as to the type of treatment that the victim is like to have to have in the future—sometimes years in the future. The jury would have to decide on the credibility of competing medical testimony as to what is likely to happen in the future.

Pain and suffering is even more difficult to determine. With past and even future medical expenses, the basis for the calculations are the costs of specific treatment. Pain and suffering is compensation for the physical pain that the victim suffered as well as the emotional pain. For future pain and suffering, the life expectancy of the victim is a significant factor in determining the amount of damages. For example, if the victim ends up with a permanent limp or with permanent facial scars, the “suffering would be for the rest of that person’s life. If they are 20-years old at the time of the accident, the length of suffering would be much longer than that of a 20-year old victim because generally, the life expectancy of a 20 year old is longer than the life expectancy of a 70-year old.

Background and Injuries

Published on: November 2, 2022

Appellate Division set aside future pain and suffering award as it was based on too short of a life expectancy. Abreu-DePena v. Weber, 2021 N.Y. Slip Op. 224 (N.Y. App. Div. 2021)

by Stephen Bilkis

In a personal injury case, when it comes to determining the amount of damages for pain and suffering and future medical expenses, the jury will look at number of factors including who was at fault, the seriousness of the injuries, the treatment involved, the treatment that will be required in the future, and the life expectancy of the victim.

In general younger victims will receive higher pain and suffering awards than older victims with similar injuries because younger people have a longer life expectancy. As a result, they would have a longer period of future pain and suffering.

Background

Published on: April 18, 2022

Court of Appeals concluded that plaintiff mother could not seek damages for emotional distress for injuries to her baby. Sheppard-Mobley ex re. Mobley v. King, 4. N.Y.3d 627 (2005)

by Stephen Bilkis

In this case the Court of Appeals considered whether an expectant mother may recover damages for emotional harm where her baby was injured in utero injury and subsequently born alive.

When Plaintiff Karen Sheppard learned that she was pregnant, her obstetrician, Dr. King, also informed her that she had fibroids and that she was not likely to carry the fetus to term. Her doctor advised her to terminate the pregnancy. Her doctor also referred her to Dr. Spector for a second opinion concerning the performance of a surgical abortion. Dr. Spector advised against a surgical abortion and recommended a nonsurgical abortion using the drug methotrexate. Methotrexate breaks down fetal tissue.

During the plaintiff’s seventh week of pregnancy, Dr. King administered the methotrexate. Upon administering the second dose, Dr. King told the plaintiff that no there was no fetal heartbeat. The plaintiff then met with Dr. Sheila Kumari-Subaiya who performed a sonogram and advised Sheppard that there was no fetal heartbeat.

Published on: April 11, 2022

Court of Appeals concluded that time-barred medical malpractice claim could be revived based on equitable estoppel. Pahlad v. Brustman, MD, 4. N.Y.3d 627 (2005)

by Stephen Bilkis

In New York, a medical malpractice case must be filed within 2.5 years of when the underlying act of negligence occurred. CPLR 214-a. However, in extraordinary circumstances, the doctrine of equitable estoppel can be invoked to revive time-barred claims.

In Pahlad, the Appellate Division considered whether a time-barred medical malpractice claim should be allowed where the plaintiffs claimed that the defendant’s actions contributed to their filing their claim late.

Background

Published on: March 14, 2022

Appellate Court rejected claim based on employment-related accidental death. Smith v Park, 2020 NY Slip Op 03583 (3d Dept. June 25, 2020)

by Stephen Bilkis

In the case of the death of a 14-year boy , the appellate court considered whether his death was in the course of his employment as determined by the New York Workers’ Compensation Board, or whether it was due to his employer’s criminal activity.

Exclusive remedy rule

In New York, when an employee is injured or killed during the course of their employment, Workers’ Compensation benefits are the victim’s exclusive remedy. That means that the victim and/or the victim’s family do not have the option of pursuing a personal injury claim against the employer. An exception to the exclusivity rule is where the employer engaged in deliberate acts that caused the victim’s injury.

Published on: March 1, 2022

Court rejects New York State’s “storm in progress” defense. Tucker v. N.Y.C. Transp. Auth., 2020 N.Y. Slip Op. 30115 (N.Y. Sup. Ct. 2020)

by Stephen Bilkis

In a personal injury case involving a plaintiff slipping and falling on subway stairs, the court considered whether the defendant, New York City Transit Authority (NYCTA), had a reasonable opportunity after the end of a snow storm to address the slippery condition, or whether NYCTA had actual or constructive notice of the hazardous condition.

Background

The events that led to the plaintiff’s injury happened on March 6, 2015 at 8:30am at the entrance of the subway station on the northwest corner of the 110th Street and Lenox Avenue. The night before it had snowed, and the stairs were covered in slush.

Published on: February 1, 2022

Court upholds medical malpractice award in a case involving an injury during delivery of baby. Cinthya ARCOS v. Yehuda BAR–ZVI, 185 A.D.Sd 882 (2020)

by Stephen Bilkis

In a medical malpractice case where the jury found the defendant to have been negligent, resulting in a severe injury to the plaintiff, the defendant asked the second department to determine whether the jury award should be set aside as excessive.

Background

On November 12, 2011, 27-year old Cinthya Arcos gave birth. During delivery, Dr. Yehuda Bar–Zvi performed an episiotomy on Arcos. The episiotomy involved Dr. Bar-Zvi made an incision in the area between the vagina and the rectum. Dr. Bar-Zvi then used a vacuum extractor to deliver the baby.

Published on: February 1, 2022

Court upholds medical malpractice in a case involving a baby with brain damage. Young v. Heller (N.Y. Sup. Ct. 2022)

by Stephen Bilkis

In a medical malpractice case where the jury found the defendants liable for the plaintiff’s birth injury, the second department was asked to determine whether a new trial should be ordered.

Background

On June 1, 2010, 38 years old Vashti Daisely, who was in the late stages of pregnancy, went to the emergency room at Vassar Brothers Medical Center. She had contacted her doctor when she was concerned about decreased fetal movement. Her doctor instructed her to immediately go to the nearest emergency room. She was seen by Dr. Kimberly Heller and Dr. Donna Kasello.