New York Injury Lawyers Blog

Port Jefferson Station resident Francisco Cardozo was struck and killed by an oncoming vehicle in Huntington Station early Friday morning. Police have determined that Cardozo was most likely walking in traffic when he was hit by the vehicle. The driver of the vehicle walked away unscathed, although police took custody of his car as part of an ongoing investigation.

This incident while undoubtedly tragic may not result in a successful personal injury lawsuit against the driver of the vehicle. Solely because this man was struck by a vehicle does not entitle his family to recover damages. Many questions must be answered including whether he was walking in the crosswalk, whether the driver of the vehicle violated any traffic laws, etc. The defendant in any potential case will seek to place responsibility on the accident with the injured party. Mr. Cardozo's family would need to prove that the accident was caused by the negligence of the driver in order to prevail.

Additional questions that a personal injury attorney would need answered during their investigation include whether he was working at the time of his death, whether he was supporting any family members at the time of his death, whether he died instantaneously or after suffering from his injuries for a period of time before dying. The answers to all of these questions and many more will dictate whether a successful personal injury / wrongful death case can be proven.

Website Resource: Pedestrian killed in NY suburb AP

Judge-directed negotiation is a somewhat novel idea, aimed at avoiding lengthy trials and settling civil suits early in their lifespan. From a public policy standpoint, this process circumvents drawn-out legal proceedings, saving time for courts and money for taxpayers. On the other hand, from the standpoint of the parties involved in the proceeding, the costs and benefits are not as black and white.

An obvious benefit of judge-directed negotiation, both for plaintiffs and defendants preparing to litigate a personal injury matter, is the avoidance of protracted litigation that proves costly for both sides. Under the program, attorneys for both sides must have authority from their respective clients to settle the cases. This precludes the possibility of merely determining the other side's bargaining position with no intention of accepting or working toward a reasonable offer.

Conversely, the procedure of judge-directed negotiation has its drawbacks. Because both the judge and opposing counsel are aware of each side's authority to settle, attorneys may feel pressured to accept an offer that perhaps they otherwise would not. While negotiation always has been, and always will remain, an integral part of any legal proceeding, the circumstances are changed when the negotiations are being led by a judge. It is the job of a plaintiff's attorney to obtain the maximum level of just compensation for his or her client. Likewise, it is the role of defense counsel to minimize the amount that his or her client must dispense. Under the conditions of judge-directed negotiations, an attorney may feel compelled to offer more, or accept less, than he or she would under more traditional negotiating situations.

In the fluid essence of the American judicial system, judge-directed negotiation is simply another way of attempting to accelerate cases from inception to conclusion. As the program develops, its overall effect on the process of civil litigation will become more clear. In the interim, it is still the essential duty of lawyers to obtain a result that is both fair and efficient, but most importantly in the best interest of his or her client.

Website Resource: To Curb Malpractice Costs, Judges Jump In Early

New York Times, William Glaberson, June 12, 2011

The New York Appellate Division, Second Department recently held that in a slip-and-fall case, the plaintiff's inability to identify the cause of the fall is fatal to the case because any finding of negligence and its causal connection to the injury would be based on speculation.

At his deposition, the plaintiff was asked if he slipped because the step was slippery or because of a crack in the step. The plaintiff responded, "I really wouldn't know to tell you. I just put my foot forward and stepped on something and I flew in the air. So, I don't recall seeing or feeling anything." When the plaintiff was asked whether his right foot ever touched the second step, he replied, "I don't know exactly. I don't recall what happened. I think it did. I don't know."

The Court reasoned that because it is just as likely that the accident could have been caused by some other factor, any determination by the trier of fact as to the cause of the accident would be based upon guesswork. The Court further dismissed the plaintiff's expert engineer's report which alleged there were unsafe conditions in the staircase where the fall occurred since plaintiff failed to present any evidence connecting these alleged violations to the fall/injuries.

Rajwan v. 109.23 Owners Corp., 2011 NY Slip Op. 02649, 82 Ad3D 1199 (2d Dept 2011)