Central New York Injury Lawyer Blog

I get this question all the time. A client is hurt by someone else's negligence and wants to know what to expect, and more specifically, HOW MUCH to expect in settlement for her personal injury.

First, you can usually only tell after the doctor has released you from further treatment. Only then can the doctor tell us whether you will have any permanent injuries, and if so, how bad.

But after the injury has healed as much as it can, the math itself is pretty simple. You take the average jury verdict you expect a jury to give (jury verdicts vary widely, so you simply take what the average jury would probably give), and then multiply it by the percentage chance you believe you have of winning at trial. For example, let's say you have an injury an average jury would award $100,000 for. But there are some weaknesses in your case, so that about 1 out of 4 juries would rule against you. Doing the math, you have a 75% chance of winning on a $100,000 injury, and thus a fair settlement would be $75,000.

But it is really not that simple. The hard part is figuring out what an average jury would give you to compensate you for your pain and suffering. Pain and suffering is a pretty loosey-goosy concept. How do lawyers figure this out? Well, here at Michaels & Smolak we have a system. First, all our lawyers read religiously a publication called "The Jury Verdict Reporter", which reports personal injury and medical malpractice verdicts all over New York State. This is like having our finger on the pulse of juries. It gives us a very good idea of what juries are generally giving for certain types of injuries. We also have taken many verdicts ourselves, so those too act as a point of reference. Next, we take into consideration the age of our client (younger clients get more because they have more years to suffer with their injuries), the place where we have to try the case (some counties produce juries that are traditionally more stingy, and others are more generous - see my previous blog on this), and how the injury has affected our client's life (physically active clients who are rendered inactive because of an injury usually get bigger verdicts than couch potatoes). Insurance policy limits are also taken into consideration. Other factors count too, but I have listed the main ones.

Next, we have to figure out our chances of winning at trial. That's also tricky. It is more of an art than a science. Some cases are clear slam dunks (drunk blows stop sign and crashes into client), but most cases have some "holes" in them. The lawyer just has to roughly measure the size of those holes! Before I enter into settlement talks, though, I have in my head what my "chances" at trial are (slam dunk, 50-50 chance, 30% chance, long shot, etc.). The Jury Verdict Reporter I mentioned earlier really helps; you see cases with your same fact pattern in there, and if the jury is consistently rejecting those cases, you know you are fighting an uphill battle.

And by the way, what I think would be a fair settlement really doesn't matter --- we always let the client decide whether to settle, and if so, for how much. All I can do is advise my client what I think would be fair.

And that's pretty much the nuts and bolts of it. If you want to know more, email or call me

Surprise, surprise. Toyota is getting sued. Just this past Monday, a grieving Texas widower filed a wrongful death lawsuit against Toyota, claiming that a defective accelerator pedal in a 2009 Corolla caused his wife's death. There have been about 10 lawsuits filed in the U.S. and Canada so far for injuries allegedly caused by the sticking-pedal problem.

Some of Toyota's most popular models, such as Corolla, Camry, Tundra and Rav, are subject to a Toyota recall, mainly for vehicles built between 2008 and today. But even as Toyota has already recalled about 6.5 million vehicles, some people are getting hurt, and they are suing.

When you manufacture a car whose pedal tends to stick in the down position, either because it just sticks, or because a dangerously designed floor mat catches it and makes it stick, you should expect to get sued. Under New York products liability (defective products) case law, which is similar in most states, a manufacturer or distributor of a defective product can be held liable even if it was careful in designing and manufacturing the product. The only thing that counts, really, is if the product ends up, for whatever reason, being "unreasonably dangerous". If it is, then the manufacturer and distributors must generally pay for the harm in a New York defective product liability lawsuit.

An accellerator pedal that stick is sure a good candidate for "unreasonably dangerous".

But still, I was feeling sorry for Toyota. After all, they gave us the Prius, a nice green-step forward. And they made good, reliable cars.

Then one of Toyota's former lawyers, Dmitrios Biller, hit the news waves claiming that Toyota had tried to suppress evidence of the pedal-sticking defects, and that it had ignored safety concerns that could have prevented fatal accidents. (Sound familiar? How about tobacco litigation?)

But even then I was still in Toyota's corner, at least a little. Weren't they the little guys of the 60's who made it big in the 80's through sheer guts and competitive spirit?

But then Biller, the whistle-blowing former Toyota lawyer, told ABC News that "Toyota in Japan does not have any respect for our legal system. They did not have any respect for our laws".

Now that got to me. Our U.S. legal system not good enough for you, you say? Well, then, we'll just teach you a lesson with some good'ol U.S. lawsuits.

New York car accident lawyers like me are taking in more and more car crash cases where our clients were struck by a "texting" driver.

Why is texting while driving so dangerous? Research shows that texters take their eyes off the road for an average of 4.6 seconds out of every 6 seconds. At 55 miles per hour, that means a driver is traveling the length of a football field without looking at the road! Studies show that drivers who text while driving get into 20 times more accidents than non-distracted drivers.

Sure it's dangerous for a car driver to text while driving, but think how much more damage a distracted tractor trailer driver can do while texting from his big rig. And that's precisely why today U.S Transportation Secretary Ray LaHood announced a regulatory guidance that expressly outlaws "texting" by drivers of commercial vehicles such as tractor trailers and buses. The prohibition is effective immediately. Under the new rule, truck and bus drivers who text while driving commercial vehicles can get slammed for up to $2,750 in civil or criminal penalties.

This won't be the last measure the federal government takes to combat distracted driving. During a September 2009 "Distracted Driving Summit", Secretary LaHood announced his goal of reducing the risks posed by distracted driving. President Obama has also recently signed an Executive Order directing federal employees not to text while driving government-owned vehicles. More to come. You can follow the progress of the U.S. Department of Transportation in combating distracted driving www.distraction.gov.

We have brought many New York legal malpractice lawsuits against other New York personal injury lawyers. In fact, we are one of the few firms in our area willing to sue other lawyers for malpractice. Our experience has taught us a few things. One thing we have learned is how a client can suspect that his lawyer has committed legal malpractice in his personal injury or medical malpractice case even when the lawyer won't tell the client. How? Read on.

Phone rings. Secretary tells me a potential client is on the phone with a personal injury case and he wants to "switch lawyers". I take the call. The potential client says, "my lawyer at first told me that I had a great personal injury case, that I had a lot of money coming to me, but now all of a sudden he tells me the case is not worth pursuing. He is trying to talk me into dropping the case. But I don't want to drop it. Can you represent me?"

Wooo! When I hear this, red flashing lights go off in my head. The first question I ask is, "WHEN did your accident happen?" If the answer is, "just over three years ago", I say to myself, "bingo".

The New York statute of limitations for most negligence (injury) cases is three years (for medical malpractice cases it is usually 2 ½ years). These statutes of limitations are generously long for a reason; you can't know how much to sue for, or how much to settle for, untill you see whether the injury will heal, how it will heal, what the client has to go through to heal (i.e. surgery, physical therapy), whether there will be any permanent disabilities, and if so, how bad they will be. So at first, before a lawsuit is filed, there is usually a long waiting period.

The problem is that some lawyers don't carefully diary the statute of limitations while they wait for the injury to play itself out. If the statute of limitations goes by without a lawsuit being filed, the case is dead. But if your lawyer missed your statute of limitations, your case is not REALLY dead, it is just transformed from a case against the careless person or company that caused your injury into a case against the careless lawyer who missed your statute of limitations.

But guess what? A lot of lawyers who miss statutes of limitations or other filing deadlines don't tell their client. Instead, they try to talk the client into dropping the case, claiming that the case is not winnable. Of course this is completely unethical, deceptive and dishonest. But believe me, it happens all the time. Lawyers don't want to be sued, even though they usually have malpractice insurance to cover them for their mistakes. It hurts their pride.

So, if your lawyer at first told you had a good case, but now he wants you to drop it, do some math. How long has it been since your accident? Then call me and we'll talk.

I get it all the time: "I'm not THAT kind of person. I'm not the suing type". They fidget nervously, from their chair on the other side of my desk, afraid I will think they are "that kind of person" for coming to see me. I think silently, "What must you think of me, who makes a living out of being 'that kind of person?'"

But I don't say that, of course. I show compassion. No one wants to be in their position. Here they are, forced by circumstances to become "that kind of person". Embarrassed by it, really. I tell them what they are feeling is very common. No one wants to sue anyone. No one wants to claim money for an injury. Money won't make the pain go away. But they need to think about the future, about their lost income, about their medical costs, and of course about their pain, suffering and loss of enjoyment of life that may last forever. And they shake their head in agreement knowingly, relieved that I am not going to judge them to be "that kind of person".

So what makes them overcome their embarrassment and come to see me? Their life has suddenly changed for the worse because someone was careless. Maybe they got hit by a drunk driver that didn't stop at the stop sign. Maybe they slipped and fell on an icy walkway that no one bothered salting. Maybe they were injured on a construction job where the safety rules weren't being enforced, causing them to fall from a ladder or scaffold. Whatever it was, they are hurt, it wasn't their fault, and after mulling it over for a few days, after seeing how their life has changed, perhaps forever, and how unfair that is, and after feeling the rage, the injustice of it all ---- they call. They set up the appointment. They come in. They sign the retainer.

And so we are on our way to getting them a measure of justice.

A New York Times article today, written by two fourth-year Harvard Medical School students, describes the frightening pervasiveness of medical malpractice in the United States, and the medical profession's seemingly incorrigible habit of turning a blind eye to it. In my blog post today I will extract the article's pearls of wisdom, and hand them to you, my reader. If you want the full oyster, shell and all, I highly recommend the full article.

The authors start by summarizing some of the more alarming studies that have catapulted medical malpractice to the headlines in recent years, including the famous (or infamous) Institute of Medicine Report in 1999 estimating that medical errors kill as many as 98,000 people a year, and a more recent New England Journal of Medicine study with similar findings.

Most interesting, though, was the authors' discussion of recent polls of medical students regarding their experience with medical malpractice. Surprisingly, a poll of third-year students revealed that most students had already witnessed medical errors (and they aren't even doctors yet!) or had committed errors themselves, but did not know what to do about it, who to report it to, or how to handle it. The system just wasn't set up to admit, explore, or learn from medical error.

According to the two authors, the message that medical malpractice is out of control has not hit home. In a recent survey of some 391 medical students, four out of five opined that medical school had only, at best, provided a "fair" emphasis on patient safety and quality improvement. According to one medical school professor, there was "still some debate" about how and when to teach patient safety! (I've got an idea --- how about from day one!)

The medical establishment needs to find a cure to its own blindness, and these young docs just might provide it with a much needed shot in the arm. As fresh-faced, idealistic neophytes to the profession, these authors are positioned to rattle the smug, old-school, doctors-can-do-no-wrong mentality of the medical profession. But here's how we can really tell whether they stand a chance: How were they received by their colleagues, professors, and senior physicians after this article hit the press? Were they ostracized for "outing" medical malpractice secrets, or were they greeted as dragon-slaying heroes? Hate to say it - but I suspect it was the former.

The Syracuse Post Standard reports that eight people were injured in a two-car crash last Friday night in Eaton, Madison County, New York. That's a lot of injured people for one accident! It's unusual, too, because nowadays most vehicles on the road have NO passengers. Look around next time you are driving and you will see what I mean!

One of the two cars was headed northbound on Route 46, failed to stop at a stop sign at Route 20, and was struck by the other car heading east on Route 20. The car that failed to stop at the stop sign was carrying three passengers, all whom were injured, though apparently not seriously. The driver traveling on Route 20, who had the right of way, suffered neck injuries, but one of his three passengers suffered a serious leg injury, so serious that she was taken by helicopter to Upstate University Hospital in Syracuse.

In this blog post I want to discuss how insurance will cover all these injuries, minor and serious alike.

Under New York State car accident law, everyone's medical expenses and lost wages up to $50,000 will be paid out of the "no-fault" insurance for the car they were traveling in. There might be additional insurance in the policy, but $50,000 is the standard, and the minimum. In addition, if any passenger owns his or her own car, or if a family member they live with does, they ought to check those auto insurance policies for additional no-fault insurance, known as "APIP" (additional personal injury protection).

So that's it for the basic medical expenses and lost wages. But what if the passengers and innocent driver have MORE medical expenses and lost wages than no-fault insurance covers? What then? And what about compensation for their pain and suffering?

That's where "liability", also known as "bodily injury", insurance kicks in. The insurance policies for the at-fault vehicle (the one who blew the stop sign) will have to pay for any "excess economic loss", meaning medical expenses and lost wages beyond what no-fault paid. In addition, it will have to pay pain and suffering compensation for any "serious injuries". I discussed what a "serious injury" is in an earlier blog.

But there might not be enough "bodily injury" insurance here to cover all the injuries, so everyone needs to seek out additional, hidden insurance, called "SUM" (supplemental underinsured motorist) coverage, which I wrote about on our website. Such additional insurance might be found in the insurance policy for the vehicle they were traveling in, or in the auto insurance policy for the vehicle each victim owns, or is owned by a family member who resides with them.

I wish luck and a speedy recover to all the victims of this unfortunate auto crash. I also hope they all have lawyers who know how to track down all available insurance to help them cover their costs and compensate them.

Two days ago the Syracuse Post Standard reported that the New York State Police had arrested a brother and sister, who are only 22 and 20 years old, for allegedly endangering the welfare of a child in Boonville, New York, by having an underage drinking party at their home on New Year's Eve where the minor was served alcohol.

Here's my blog-post question of the day: What if the under-aged drinker had injured someone because of his intoxicated state? For example, what if he had driven away from the party only to smash his car into an oncoming vehicle? Or what if, emboldened by his alcohol-fueled testosterone levels, he assaulted someone and caused serious injury? Who would be liable for those injuries? Can both the 22 year-old and the 20 year-old kids who hosted this party be held liable in a New York under-aged drinking lawsuit?

Yes they can! Obviously, the under-aged drunk driver or assailant would be liable, but so too would the people who held the underage drinking party, even if they themselves are minors. These rules are all found in New York's General Obligations Law 11-100. Under this law, if someone is injured by an intoxicated minor, the injured victim has a right to bring a New York lawsuit against the person who caused or contributed to the intoxication of the minor by unlawfully selling to, or assisting in the procuring of liquor for, the minor. In order to be held liable, the procurer of the alcohol must have known, or had reasonable cause to believe, that the person he was providing the alcoholic drink to was under the age of 21. Under the law, even an under-aged person who provides alcohol to another under-aged person can be held liable to the victims.

Moral of the story? Never serve alcohol to a minor, even if you yourself are a minor. You can be held liable for any injuries the minor you serve alcohol to causes. Giving alcohol to a minor is like winding up a walking liability-causing machine that you can't control!

The Governeur Times reported yesterday that St. Lawrence County sheriff's deputies are investigating a fatal snowmobile accident on the Tooley Pond Road near the River Road in the Town of Clifton. A 40-year old snowmobiler of Brownville, N.Y. was traveling north on the east side of Tooley Pond Road when he crossed onto the west side of the road, struck a snow bank and was ejected.

Most snowmobile accidents are caused by snowmobile operator error, usually involving excess speed. Most snowmobile accidents involve a smowmobile driver striking a fixed object, just like in this unfortunate accident, where the driver struck a snow bank.

Sometimes snowmobile accident victims are not at fault, or some other person is partially at fault. This Central New York snowmobile accident lawyer has blogged several times recently about snowmobile accident lawsuits in New York State. You can read all my snowmobile accident blogs, which include safety tips for snowmobiling, by clicking here, here, here and here

The Syracuse Post Standard reports today that State police have arrested a 28-year old socio-therapist at a residential center for teenage boys on rape charges. The socio-therapist is alleged to have had sexual contact with a 15-year-old resident of Snell Farms Children Center in Bath, in Steuben County.

Criminal charges have been filed, but the question I want to address in today's blog is, what are the possible CIVIL LAW consequences? In other words, assume the child has suffered some psychological trauma, pain and suffering, and has a need for psychological treatment. Can the child, through a parent or guardian, bring a New York rape or child abuse lawsuit for money damages to pay for his treatment and to compensate him? Who would the child-victim sue and how would he be compensated?

The child, through his guardian or parent, can sue both the alleged rapist and the employer, Snell Farms Children Center. The lawsuit against the rapist would allege assault and battery and other intentional acts. But, even if the child wins at trial, that lawsuit would almost certainly be a waste of time and money. Why? Because even if this socio-therapist has liability insurance, such as homeowner's insurance, the insurance company won't pay out a dime on this case. Insurance never covers INTENTIONAL wrongdoing. And what can be more intentional than rape?

What about the employer, the Snell Farms Children Center? Can the child-victim, through a guardian or parent, sue the employer? Yes. But the employer is not automatically liable for the rape committed by its employee. The child's lawyer must prove that the employer was NEGLIGENT in hiring, retaining, or supervising its employee, the alleged rapist. If the employer carefully checked its employee's background before the hiring, and found no past incidents of child abuse, and if the employer properly supervised the employee's work and had no reason to suspect such behavior, then the employer cannot be held liable.

It might be a tough case against the employer, but at least the employer's liability insurance will cover the costs of the legal defense and, if the jury renders a verdict favorable to the plaintiff, will pay money damages to the child.

But wait a minute! Didn't we just say that insurance won't cover intentional wrongdoing? True, but while "rape" is by definition "intentional", the EMPLOYER'S wrongdoing, if any, was not "intentional" (the employer did not commit the rape), but merely "NEGLIGENT". In other words, although the employer may not have been careful enough in hiring or supervising its employee, it did not "intentionally" harm the child. It was at most "negligent", and "negligence" is precisely what liability insurance is supposed to cover.

The Geneva Finger Lakes Times ran a story yesterday about a car-on-pedestrian accident in Waterloo (Seneca County). The story was of interest to me because I pass through Waterloo twice a day on my way from my home in Geneva to my office in Auburn. Here's what happened:

On January 11, a vehicle struck a 14-year-old student on Stark Street. For at least two years, the child's mother had been one of several parents voicing (to put it mildly) concerns to local officials about the lack of sidewalks for school children who walk to and from school in that area. The parents say the Village of Waterloo and School officials merely shrugged their shoulders and pointed their finger at each other or at other entities. The Village of Waterloo owns the roadway in the area in question. Everyone, including the Village, appears to agree there is a safety concern with children walking to and from school in that area.

As I read the article, I asked myself, "who can be held accountable for this injury in court"? And "who can be held liable for future accidents if nothing is done"? I answered my own questions, and now it's your turn. Readers, I give you two choices: Who can be held liable? (1) the Waterloo School Disctrict or (2) The Village of Waterloo?

Answer: (drum roll please . . . ): It's number 2, the Village.

Why not number 1? Well, a school district, including the Waterloo School District, cannot generally be held responsible for the safety of its students once they are released from school and leave school premises. The exception is if the school district somehow created the off-premises danger that caused the injury, which does not appear to be the case here.

Instead, here the Village owns and controls the road in the problem area. Therefore, providing sidewalks for pedestrian safety in that area is the Village's responsibility.

The Village and its lawyers would be well advised to read the New York Court of Appeals (highest court in New York State) case of Ernest v. Red Creek Cent. School Dist., 93 N.Y.2d 664 (1999), where it was held that Wayne County, who owned and controlled the road just outside the village of Wolcott, near a school, could be held liable for failing to install sidewalks for school children's use if there was no "reasonable basis for the failure to act and the failure to do so was a contributing cause of an accident". In that case, as in this case, the entity who owned the roadway (there, Wayne County, here, the Village of Waterloo) had been warned for years that sidewalks were needed for the safe passage of school children. There, as here, parents and others had pleaded with the authorities to build sidewalks, but those pleas were ignored. In the Wayne County case, a seriously injured student, hit by a car, sued the County for its failure to install sidewalks, and the Court gave the injured student a green light to go to trial. Fortunately, in Waterloo, the lack of sidewalks has caused only one minor injury so far.

Will the Village of Waterloo wait for a SERIOUS injury before it does the right thing? Let's hope not.

Today Community General Hospital in Syracuse, New York, opened its new $7.6 million orthopedics unit. The new unit, located on the hospital's sixth floor, will care for patients recuperating from knee, hip (including hip and knee replacements) and spine surgery. The Hospital's old orthopedics unit on the fourth floor provided insufficient space, as the orthopedic surgery practice has grown. The new, modern facility will provide better care and may even reduce orthopedic medical malpractice lawsuits. Outgrown, overcrowded surgical recovery units are breeding grounds for medical malpractice lawsuits.

The new unit is timely. We are going to need more, better, and larger orthopedic units in the future. One big area of growth in the orthopedic surgery field is joint replacement, especially knee and hip replacements. To demonstrate this growth, let's just look at knee replacements. In 2006, 59,077 people between the ages of 45 and 54 had knee replacements. But experts predict that, by the year 2030, that number will have increased to almost 1 million, nearly 17 times as many! Similar statistics are available for hip replacements.

Why this increase? Three facts are driving the trend: (1) Joint replacements are more successful than before, and thus attract more patients. New technology allows the artificial parts to withstand more stress and strain; (2) Seniors are more active, and need those hips and knees to work for them; and (3) There are more and more obese people, which triggers earlier and greater arthritis and other orthopedic problems.

Kudos to Community General Hospital for building this new unit to meet Central New Yorkers' ever increasing orthopedic surgery needs.

When I look back over the past month or so (December and January), I see that I have been blogging quite a bit about car and snowmobile accidents. It is no coincidence. This time of year, these kinds of accidents fill up the newspapers and tie up my phone line.

Car accidents happen with greater frequency in winter for two reasons: (1) the slippery conditions and (2) the shorter days (People are driving in the dark more often, with more limited visibility, both on the way to work and back). And do I need to explain why snowmobile accidents happen with greater frequency in winter? I think not!

A few days ago I blogged that car accidents are sometimes the "road's fault", that is, that a government entity (New York State, or a town, city or county) negligently designed the road or its signage, traffic control devices, drainage ditches, shoulders, etc. I explained that, in such cases, motor vehicle accident victims may have a valid claim against whatever government entity designed and maintained the roadway.

The same can be said for snowmobile accidents. Sometimes the government or a private party owns and maintains snowmobile trails. Sometimes snowmobile accidents are caused by the poor maintenance, planning, or design of those trails.

But hold on! These are not easy cases. Even though the landowner may be at fault, there is a special statute in New York that protects them in many cases. It is called General Obligations Law section 9-103. This law provides that landowners "have no duty to keep the premises safe for entry or use by others for (among other things) snowmobile operation" and that they have no duty to "give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes". In other words, generally you can't sue the landowner for dangerous snowmobiling conditions, or even for failing to warn you about them.

The law's purpose is laudable; it encourages landowners to open up their property for snowmobiling and other recreational use by the public. Many landowners would be reluctant to do so if they thought they could be sued for accidents that happen on their property.

But there are many exceptions to the blanket protection provided by Obligations Law section 9-103. By way of example only, a government entity such as a County, that opens up its land for snowmobile use, and maintains snowmobile trails, may be held liable under a "public parks" exception to the rule. In fact, Michaels & Smolak is currently litigating such a case against Oswego County. There are many other such exceptions, too.

Make no mistake; the number one cause of snowmobile accidents is unsafe driving.But if you or a loved one is injured in a snowmobile accident and you believe it might have been at least partly "the trail's fault", call a New York snowmobile accident lawyer to discuss the case.

There are between 300 and 400 snowmobile accidents in New York State each year, with about 25 fatal ones. Two more snowmobile accidents were reported in recent days. I previously blogged about safety rules for snowmobiling. These recent snowmobile crashes remind us of the do's and don'ts of snowmobiling:

Snowmobile Accident #1: The Syracuse Post Standard reports that a Lyncourt man died from a snowmobile accident in Lewis County last Saturday night. The snowmobiler was traveling on Smith Road in the town of West Turin around 8 p.m. when he apparently LOST CONTROL of his sled on a curve, and STRUCK SOME TREES. He was pronounced dead upon his arrival to Lewis County General Hospital.

Snowmobile Accident #2: The Saratogan reports a snowmobile accident near Edinburg on Great Sacandaga Lake this past weekend. An East Greenbush resident allegedly CLIPPED THE REAR OF ANOTHER SNOWMOBILE, causing him to fall off the sled and strike his head on the ice. He was airlifted to Albany for treatment and was listed in stable condition. Fortunately, he was WEARING A HELMET.

So what safety rules do these accidents remind us of?

Safety Reminder from Accident #1: SLOW DOWN, especially at night.

Safety Reminder from accident #2: DON'T FOLLOW TOO CLOSELY to the snowmobile in front of you. And WEAR A HELMET (this may have saved the man's life here).

Snowmobiling can be safe if you make it safe. Thanks for driving safely.

I have blogged many times about Central New York auto accidents. I have discussed recent Central New York car accidents and shown how one or more of the driver's would most likely be found at fault. Today I want to discuss another type of car accident case: Specifically, I want to discuss New York defective road design cases, that is, cases where the accident is the road's fault.

The road's fault? Yes, sometimes car accidents are caused by the negligent design or plan of a road, street, or highway. Maybe it tends to accumulate too much water during rainy times. Maybe it was not properly marked with signs, or the speed limits were too high, or the shoulder or draining ditch was too deep, or there should have been guardrails, or the guardrails were not properly designed, or the trees or shrubbery were too close to the road, or . . . well, the possibilities are almost infinite.

If you are injured in an accident caused by a defective road design, can you sue anyone? Yes you can, but you have to prove more than just that the road could have been better. Roads in New York are designed, built and maintained by New York State, or its Counties, or other municipalities such as towns, in other words, some kind of government entity. Generally, New York State and its counties and towns have what is known as "qualified immunity" from liability for highway, road and street planning and design decisions. What does "qualified immunity" mean? Well, it means that just proving the roadway design was bad is not enough to win your case. You must also show that the road was built "without adequate study or lacked a reasonable basis".

What if the road was designed a long time ago when standards for safe road design weren't as strict as today? Isn't the government required to upgrade the road to meet modern safety standards? Generally, no. The road has to comply only with the standards existing when it was built, not later standards. Like most rules, however, this one has exceptions, in fact, two exceptions: (1) If the road build under the old standards has a history of accidents, then the government may be required to upgrade it to comply with modern standards; and (2) If the roadway undergoes a significant repair or reconstruction, then the government is required to upgrade the design to comply with current standards.

What if your car collides with objects near the road, such as trees, shrubs, or posts? Generally, the government is required only to maintain the roadway itself in a safe condition, not the area near the roadway. But again there is an exception: You can sue for collisions with those objects when there were other collisions with those objects that put the government on notice of a specific dangerous condition.

Bottom line: Faulty roadway design cases are not easy. They are a maze of rules, exceptions to the rules, and exceptions to the exceptions to the rules. If you believe your car accident may have been caused by a roadway defect, you need a New York defective road lawyer who understands the rules, the exceptions, and the exceptions to the exceptions.