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Articles Posted in Developments in Law

The author in “virtual court” arguing an appeal

As I write this blog post, I just got an appointment for my first COVID vaccine shot for February 6.  I am 65, just barely, which qualifies me for this early round of vaccines.  Lucky me! With the vaccine soon to be widely available, the pandemic lockdowns and distancing may (we hope!) soon end.

This got me thinking about the post-COVID world.  In my little corner of the world representing New York personal injury victims, COVID has driven many changes to the way we practice law. Will the COVID way of practicing of law end when the pandemic ends?

Most New York State counties, including Monroe, Onondaga, and all the counties in between, have a law on their books which allows the county public health commissioner to issue an order for involuntary isolation if an individual disobeys a quarantine request and is believed to be an immediate threat to public health.  And the counties are not shy to enforce the law.  Example:  One of my brothers, who lives in Auburn, New York, developed Coronavirus symptoms a few weeks ago.  The Onondaga County Health Department ordered him to get the test (which he willingly did) and then ordered him quarantined in his home until the test results came back (7 days later).  Fortunately, he tested negative, but a County Health Inspector stopped by his house two times a day to make sure he was not leaving the home.  If they had found he had “flown the coop”, they likely would have issued an order for his arrest.

Here’s an even better example:  A Monroe County resident with Covid-19 symptoms, who refused testing, and then disobeyed a Monroe County Department of Public Health civil order to quarantine himself, was arrested and jailed recently in a County jail in Brighton, New York.   He has been isolated from other inmates to prevent COVID-19 spread.

Assuming this selfish and anti-social person passed the virus onto others, who got very sick or died, can his victims or their families sue him for money damages in New York?  That’s our New York personal injury law question for today.

I sue for a living. I say that with pride.  I help injured folks get compensation from wrongdoers.  But when the wrongdoer is the Government, it gets tricky. And when I say “the government”, I mean not just “THE” Government, but all the cities, towns, counties, school districts legally deemed subdivisions of the State of New York. On the road to victory against such defendants lies a minefield of bombs.

The procedural requirements for suing the government are rigorous.  On the way to the finish line, government lawyers will be watching for your mistakes.  But not just watching.  Slung across their wool suit jackets, they carry a quiver packed with sharp arrows, legal defenses that are available only to government entities.

Why is suing the government so hard?  Because the legislature has deliberately set up an obstacle course between the injured victim and government money.

As a longstanding NY personal injury lawyer, I have seen my clients’ right to privacy disintegrate over the years.  And just when I thought it could not get much worse, it got worse. Let me tell you about it.

First, though, a little background. When you sue for personal injuries, you give up some of your privacy.  The insurance company lawyer has a right to pry into your medical records, at least to the extent they are relevant to the injuries you are claiming from the accident.  So if you are claiming a broken right arm, for example, they have a right to scour through any medical records related to your right arm, whether from before or after the accident.  But they would not have the right to look at records for treatment unrelated to that arm.  You don’t give up all your privacy, just that much of your privacy that is related to the injuries you are claiming.

Now, if you are claiming that your injuries have hampered your lifestyle – as they often do – and that you can no longer do certain things you used to do, the insurance company lawyers can try to uncover evidence that you are either lying or exaggerating your disability.  For example, they can have investigators secretly trail you and try to catch you – on camera – performing activities you claim you can’t do.

Did you ever wonder where the expression, “to read the Riot Act” comes from?  Well, if not, you are probably wondering now.  So here’s the explanation:  The so called “Riot Act” was an Act of the Parliament of Great Britain when the USA was still part of Great Britain (1715).  It authorized the government to declare any assembled group of twelve or more people unlawful, and force them to disperse.  Before the group could be arrested or punished for illegal assembly, the authorities had to read aloud the Act as a warning to disburse.  The phrase “to read the Riot Act” thus came to mean more generally any situation where an authority delivers a stern reprimand or warning to someone indicating that they must change their behavior or else suffer dire consequences.

A recent Court of Appeals (New York’s top court) Decision has New York personal injury lawyers “reading the Riot Act” to their clients.  Before I can tell you why the “Riot Act” is being read to New York personal injury claimants, I have to first explain the Court’s ruling.

In Forman v. Henkin the Court held that, when you sue someone for personal injuries, their lawyers can get access not only to your “public” Facebook posts, but also – under certain circumstances — to the ones you posted under your “privacy” settings.  Those private postings do not automatically need to be disclosed to the insurance company lawyer, but those lawyers – whose goal is to defeat your claim — can force you to turn them over by showing they are reasonably likely to be relevant to the credibility of your injury claims.

Warning:  This blog may be a little too “legalese” for many of my readers, but it is an important development in New York personal injury law, so I feel compelled to write about it for my many lawyer-readers and others with a more-than-casual interest in the law.  The new development is a case from New York’s top Court — the Court of Appeals — called Rodriguez v. City of New York”.

The particular facts of that case don’t matter for our purpose here.  So I am not even going to talk about them.  Here’s what you need to know:  Whenever we New York personal injury lawyers sue a defendant for negligence, there comes a point, usually after depositions, when we consider making a “summary judgment motion on liability”.  That means we are asking the Judge – without a jury – to rule that the evidence so clearly shows the defendant was negligent that the Judge – without even giving the case to the jury to consider – should rule that the defendant was negligent and is liable to our client, the plaintiff.  At that point, if we get “summary judgment on liability” in our favor, we gain several advantages.

First, the only remaining issue now for a jury to decide is the amount of “damages”, in other words, how much is the injury worth?  We get to go to the jury and tell them “the judge has already found the defendant liable for what he did to our client and now you only have to consider HOW MUCH he owes our client, not WHETHER he owes our client.”  Huge advantage.  It’s like starting a football game with a three-touchdown head start.

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