Liability

Statutes of Limitation

1. N.Y. C.P.L.R. § 214(5) Negligence resulting in personal injury - 3 years from date of accident
2. N.Y. C.P.L.R. § 214(4) or N.Y. C.P.L.R. § 214-c Property damage - 3 years
3. Breach or oral/written contract for cargo losses
1. N.Y. C.P.L.R. § 213(2) Contract in writing – 6 years
2. N.Y. C.P.L.R. § 213(2) Contract oral or not in writing – 6 years

Negligent Entrustment, Hiring, Retention, Supervision

What if Course and Scope is Admitted?

Negligent Hiring or Retention

A claim for negligent hiring or retention arises when an employer places an employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in supervising or retaining the employee. An essential element of these causes of action is that the employer knew or should have known of the employee's propensity for the conduct that caused the injury.

Negligent Entrustment

Negligent entrustment is a cause of action in New York. If an owner of a motor vehicle allows the vehicle to be used by an incompetent or unfit person with the knowledge, or constructive knowledge, that the driver is incompetent or unfit to operate the motor vehicle, the owner may be liable for an injury which is negligently inflicted by the use of the vehicle by that driver. The owner would be liable even if the use of the vehicle at the time of the injury was beyond the scope of the consent which the owner granted to the operator.

Course and Scope of Employment

When determining whether tortuous conduct occurred within the course and scope of employment, the jury should consider a number of factors including, but not limited to:

1. intent of the employee;
2. nature, time and place of the employee’s conduct;
3. type of work the employee was hired to do;
4. incidental acts the employer should reasonably expect the employee to do;
5. amount of freedom allowed to the employee in performing his or her duties; and
6. amount of time consumed in the personal activity.

Comparative or Contributory Negligence

In New York, fault is allocated under the pure comparative fault legal doctrine. Pure comparative fault means that even if a plaintiff is found to be at fault, he is entitled to collect the damages awarded to him by the jury minus his percentage of fault. For example, if a jury awards a plaintiff $100,000 and the plaintiff is found to be 40% liable, the award is reduced by 40% and the defendant is only liable for damages to plaintiff in the amount of $60,000. The pure comparative fault system applies to any action to recover damages for personal injury, injury to property or wrongful death.

Sudden Emergency Defense

The emergency doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection may not be negligent if their actions are reasonable and prudent in the context of the emergency.

Contribution or Implied Indemnity from Third-Parties

1. Under New York law, two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought. A cause for contribution can be asserted in a separate action or by cross-claim, counterclaim or third-party claim in a pending action. Consequently, a defendant found liable is not prevented from subsequently seeking contribution from a third party who is not a party to the original suit.
2. The principle of common law, or implied indemnification, permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party. The party seeking indemnification must have delegated exclusive responsibility for the duties giving rise to the loss to the party from whom indemnification is sought, and must not have committed actual wrongdoing itself. In the classic case, implied indemnity permits one held vicariously liable solely on account of the negligence of another to shift the entire burden of the loss to the actual wrongdoer.

Exclusivity of Workers Compensation

1. Every employer shall secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment without regard to fault as a cause of the injury, except that there shall be no liability for compensation when the injury has been solely occasioned by intoxication from alcohol or a controlled substance of the injured employee while on duty; or by willful intention of the injured employee to bring about the injury or death of himself or another; or where the injury was sustained in or caused by voluntary participation in an off-duty athletic activity not constituting part of the employee's work related duties unless the employer (a) requires the employee to participate in such activity, (b) compensates the employee for participating in such activity or (c) otherwise sponsors the activity.
2. The liability of an employer prescribed above shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom, except that if an employer fails to secure the payment of compensation for his or her injured employees and their dependents, an injured employee, or his or her legal representative in case of death results from the injury, may, at his or her option, elect to claim compensation, or to maintain an action in the courts for damages on account of such injury; and in such an action it shall not be necessary to plead or prove freedom from contributory negligence nor may the defendant plead as a defense that the injury was caused by the negligence of a fellow servant nor that the employee assumed the risk of his or her employment, nor that the injury was due to the contributory negligence of the employee.

Seat Belt and Helmet Use

1. In New York, the seat belt defense can be submitted to the jury only if the defendant can demonstrate, by competent evidence, a causal connection between the plaintiff’s non-use of an available seat belt and the injuries and damages sustained.
2. New York State has a helmet law requiring all riders and passengers on a motorcycle to wear a helmet approved under the Federal Motor Vehicle Safety Standards. New York’s helmet law is found in the Vehicle and Traffic Law at Section 381(6), which states as follows:

It shall be unlawful for any person to operate or ride upon a motorcycle unless he wears a protective helmet of a type which meets the requirements set forth in section 571.218 of the federal motor vehicle safety standards as may from time to time be amended.

Spoliation

1. When a person or company withholds, alters, hides, or destroys evidence relevant to the litigation, either intentionally or negligently, it is considered “spoliation” of evidence and can lead to sanctions against the party that is guilty of spoliation including, but not limited to, dismissal of the action, striking a pleading, assessing monetary penalties, or permitting the jury to take a negative inference against the spoliating party. The negative inference at trial can be very damaging to a party because it permits the jury to infer that there was something to hide (e.g., the party had a “guilty conscience”) and the missing evidence is unavailable because it negatively impacted that party’s affirmative case or defense.
2. A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a “culpable state of mind,” and “that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense.” Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed. On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party’s claim or defense.
3. The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised the movant’s ability to prove a claim or defense.

Damages

Caps?

New York has no damage caps.

Joint & Several Liability

In New York, the general rule is joint and several liability, however exceptions exist. Personal injury defendants who are less than 50 percent liable face several-only liability for the plaintiff’s noneconomic damages. Intentional acts, collusion and recklessness always trigger joint and several liability. A host of other exceptions also exist that are intended to yield to the rules of substantive areas of law, including Labor Law and Business Corporation Law. Where a tortfeasor has paid more than its proportionate share, it is entitled to contribution.

The plaintiff’s fault, if any, diminishes the amount of damages he is entitled to recover by the degree of his own fault – but it does not bar the plaintiff’s action. A partial settlement extinguishes the right to contribution for and from the settling tortfeasor. In case of such a partial settlement, the remaining defendants are entitled to a setoff of the total damages by the greater of the pro rata or the pro tanto approach.

Standard of Proof Required for Compensatory Damages

Collateral Source (Meds billed v. paid)

1. Under the common law collateral source rule, a personal injury award may not be reduced or offset by the amount of any compensation that the injured person may receive from a source other than the tortfeasor. This common law rule has been widely criticized because it allows plaintiffs to recover more than their out-of-pocket expenses and permits double recovery.
2. To address the inequity of a double recovery, the New York legislature statutorily modified the common law collateral source rule by permitting the reduction of damage awards “by the amount of collateral source payments in certain instances.” Among those instances are actions in which a plaintiff seeks to recover the cost of any past or future medical services. New York law provides that in any action in which a plaintiff seeks to recover the cost of any past or future medical services, the court may reduce the amount of the damages award by any amount plaintiff is entitled to receive from collateral sources. These sources have generally included insurance policies (except for life insurance policies), most social security benefits, workers' compensation awards, and employee benefit programs. New York’s collateral source rule, however, only applies to verdicts; it does not apply to settlements.
3. The defendant bears the burden of proving entitlement to collateral source set-offs. The defendant must prove entitlement to a collateral source set-off with “reasonable certainty,” which is “more than a preponderance of the evidence but less than proof beyond a reasonable doubt,” also defined as “clear and convincing evidence that the result is ‘highly probable.’
4. It is well established under New York law that when an insurer pays for losses sustained by its insured that were caused by a wrongdoer, the insurer is entitled to seek recovery of those payments under the doctrine of equitable subrogation.

Hedonic Damages

The term "hedonic damages" refers to loss of enjoyment of life. It's the intangible impact an injury has on your life. In New York, injured people can recover for the conscious pain and suffering and loss of enjoyment of life that they suffer as a result of injuries they sustained in an accident. Conscious pain and suffering, is pain and suffering of which there was some level of awareness by the plaintiff. Damages can be awarded to compensate a victim for loss of pleasures of life, as part of the award for pain and suffering, only if there is cognitive awareness of the loss. When a person’s injuries preclude any awareness of the loss, the law holds that a damage award fails to serve its compensatory purpose. Loss of enjoyment of life, includes the loss of the ability to perform daily tasks, to participate in the activities which were a part of the person’s life before the injury, and to experience the pleasures of life.

Hedonic damages can be discussed in a personal injury action if the injured person is not comotose. However, Loss of enjoyment of life is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by the jury in assessing damages for conscious pain and suffering.

Life Care Plans

Life care planners: formulate life care plans - detailed descriptions of special damages the disabled individual suffered, what progressive disablement can be anticipated and, most importantly, the present and future monetary costs of all necessary care.

Wrongful Death Standing and Damages

In New York, a personal representative, duly appointed in New York or another jurisdiction, of a decedent who is survived by distributees, may bring an action to recover damages for any wrongful act, neglect, or default which caused the decedent’s death. It is to be pled as a separate cause of action. Such an action may be brought against the person who would have been liable to the decedent based on such wrongful conduct if death had not ensued. The right of action in a wrongful death suit only accrues to a distributee and as such, if there is no distributee, there is no right of action to anyone.

In wrongful death actions, recovery is limited to general damages which result from the pecuniary loss of those distributees for whom the action is maintained. The measure of the pecuniary loss is the reasonable expectation of future assistance or support to the survivors had the decedent survived. The survivors may also recover for reasonable expenses of medical aid, nursing, and attention incident to the injury causing the death and reasonable funeral expenses of the distributees, or for the payment of which any distributee is responsible. There is no recovery for grief, heartache, or sorrow, but there is a recognized claim for loss of guidance, such as where an infant loses a parent. Damages from conscious pain and suffering are also recoverable. In addition, punitive damages may be recoverable if same would have been recoverable had the decedent survived.

Punitive Damages

1. Recoverable? If so, standard for it?

The bar for the imposition of punitive damages in New York is extraordinarily high. A defendant’s conduct must not simply be intentional, but must evidence a high degree of moral turpitude, as well as a wanton dishonesty as to imply a criminal indifference to civil obligations. The person’s conduct must rise to malicious, wanton, or reckless conduct. Where liability arises through a theory of respondeat superior, the evidentiary standard is one of clear and convincing evidence. In the transportation industry, two cases of note are Marcoux v. Farm Service & Supplies, Inc., 283 F. Supp.2d 901 (S.D.N.Y. 2003) (poor maintenance of trailer tires, hiring and retention of truck driver with substantial adverse driving record, do not evidence the degree of recklessness and wantonness requisite for an award of punitive damages); and Evans v. Stranger, 307 A.D.2d 439, 440-41, 762 N.Y.S.2d 678, 680 (3d Dept. 2003) (University’s hiring and retention of bus driver with known recent DWI conviction and repeated drug abuse not so flagrant as to transcend mere carelessness or evince conscious disregard for the rights of others).

2. Caps?

There are no statutory caps on damages in New York. The award of punitive damages by a jury should not be disturbed unless it is so grossly excessive as to warrant the conclusion that it was “actuated by passion.” Nardelli v. Stamberg, 377 N.E.2d 975, 977 (N.Y. 1978).

3. Insurable?

No. See Home Ins. Co. v. Am. Home Prod., Corp., 550 N.E.2d 930 (N.Y. 1990) (where the Court of Appeals held that requiring an insurer to reimburse the insured for punitive damages awarded in an out-of-state action would violate New York public policy). See also Biondi v. Beekman Hill House Apt. Corp., 731 N.E.2d 577 (N.Y. 2000) (holding that indemnification defeats the purpose of punitive damages, which is to punish and deter others from acting similarly).

Offers of Judgment

Except in a matrimonial action, at any time not later than ten days before trial, any party against whom a claim is asserted, and against whom a separate judgment may be taken, may serve upon the claimant a written offer to allow judgment to be taken against him for a sum or property or to the effect therein specified, with costs then accrued. If within ten days thereafter the claimant serves a written notice that he accepts the offer, either party may file the summons, complaint and offer, with proof of acceptance, and thereupon the clerk shall enter judgment accordingly. If the offer is not accepted and the claimant fails to obtain a more favorable judgment, he shall not recover costs from the time of the offer, but shall pay costs from that time. An offer of judgment shall not be made known to the jury.

Biomechanics

Experts in biomechanics are educated and trained in a variety of subjects including engineering, medicine, anatomy and physics. Some biomechanical engineers are also medical doctors. Biomechanical experts often provide expert opinions on causation. For example, the expert may testify as to the forces necessary to produce certain types of injuries and the forces at work in a car accident, considering the driver’s position at the moment of impact, the speed of the vehicles, and other factors.

Biomechanical experts are admissible however are usually hotly contested at trial because this testimony can be highly influential on a jury. Upon receipt of an expert disclosure that describes engineering expert testimony, the adverse party is likely to request a Frye hearing to determine the admissibility of the evidence. The Frye test provides that expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community.

Must policy limits be disclosed pre-suit?

N.Y. Ins. Law §§ 2601 and 3420 provide that insurers must disclose the bodily injury limits of liability of their insured to an individual or that individual’s duly authorized representative who has filed a claim for damages against the insured and has made a written request for such information. The information must be provided within 45 days of the written request.

May claimant recover general damages if the claimant does not have own auto-insurance? So called no pay no play rules.

Yes