You’re climbing up a set of icy stairs to enter your favorite local cafe in Buffalo, New York, on a frozen January morning. You put your weight on your right foot, which places it right on top of a section of invisible “black ice.” Down you go, 14 steps to the parking lot. There you lay with a sprained ankle, a sprained shoulder, a broken hip, a soft tissue injury in your neck, and a serious concussion.
You wake up in a hospital bed. Do you have a personal injury claim? If so, how much is it worth?
Understanding the value of your personal injury claim can help you be better prepared for what to expect. Consult with a Buffalo Personal Injury lawyer today.
Liability
Before you can decide on the value of your personal injury claim, you’re going to have to establish the defendant’s liability. New York law recognizes several different bases for liability–intentional misconduct, negligence, and strict liability, among others.
Negligence is by far the most common basis for a personal injury claim, and it appears to apply in this instance. To win a negligence claim, you must prove four facts: duty of care, breach of duty, damages, and causation.
Duty of Care
The owner or operator of the cafe has a duty of care towards their customers. They must inspect their property for dangerous conditions, such as ice on a staircase. If they find any dangerous condition, they are duty-bound to either repair the condition or warn you of it. In this instance, lawyers would refer to this duty as ‘premises liability’ because the condition existed on someone’s premises.
Breach of Duty
You would probably argue that the owner breached their duty of care by failing to remove the ice with, say, rock salt or a snow shovel. A sign that read “Warning: Slippery Stairs” would probably be insufficient, given the ease of removing the ice hazard. However, you need more to establish negligence.
Damages
Your damages include, at the very least, your medical bills and your pain and suffering. If you missed work because of your injuries, they would also include lost earnings. They could include other items as well.
Causation
The owner’s negligence must have been the actual cause and the proximate cause of your injuries.
Actual cause
The owner’s negligence was the actual cause of your injuries; if you can truthfully say that, absent the owner‘s negligence, you would not have suffered any injuries.
Proximate cause
If you suffered your accident while intoxicated, the dispute might center on whether the proximate cause of the fall was the icy stairs or your intoxication. The store might argue that your intoxication was the proximate cause, while you would argue the proximate cause was the store’s failure to maintain safe premises.
Assuming that you were not intoxicated at the time of the accident, you can be reasonably optimistic about your chances of winning your negligence claim against the cafe owner. So now what?
Maximum Medical Improvement (MMI)
Maximum medical improvement (MMI) is the point at which your medical condition has improved about as much as it ever will. It is important in a personal injury lawsuit because you won’t know exactly how much money you owe your doctors until your condition improves to the point where you no longer need medical treatment. You might not even know the total number of work days you are going to miss because of your injury.
There are two potential post-MMI scenarios. In one scenario, your condition is stable, but you suffer from a permanent disability. In another scenario, you have made a full recovery–you’re “just like new.” In the first scenario, you will have to estimate your future medical expenses, for which you might need the assistance of an expert. In the second scenario, you’ll just need to add up all your medical bills and incorporate them into your personal injury claim.
Elements of Your Claim
Personal injury claims typically consist of economic damages such as medical care and lost earnings, non-economic damages such as pain and suffering, and (occasionally) punitive damages).
Medical Expenses
Here are some examples of medical expenses you might claim:
- Emergency room expenses, including the ambulance ride
- Your hospital stay
- Diagnostic imaging, including X-rays, CT scans, or MRI
- Prescription medication
- Surgery
- Physical therapy
- Chiropractic care
- Pain management
- Assistive devices such as wheelchairs, crutches, or walkers
- Follow-up visits
- Rehabilitation programs
- Home modifications, such as ramps or grab bars
- Estimated future medical expenses
This is not a complete list. You might have other medical care expenses as well.
Lost Earnings
Lost earnings are easiest to calculate if you work for an hourly wage. It can get more complicated if you work for a monthly salary with no set hours. It gets even more complicated if you are self-employed with no stable income. However, a lawyer should still be able to calculate these amounts.
Diminished Earning Capacity
Some injuries result in permanent disability. How much would you lose if you had to retire early because your injuries prevented you from working? That depends on at least two main factors–how much you were making before your injury (and your future income prospects) and how old you were at the time of your accident.
You’ll lose a lot more by retiring at 30 than retiring at 60. The degree of your disability matters, too. Perhaps you can return to work, but only in a less demanding, lesser-paid position. If you face this situation, you’re almost certainly going to need an expert witness to help you estimate your future damages. Underestimating these could lead to catastrophic consequences decades down the road.
Out-of-Pocket Expenses
You might have had to pay for child care during your convalescence, for example, or household help. Let your lawyer help you calculate these expenses because it would be easy to miss something important.
Non-Economic Damages
Non-economic damages are intangible losses such as:
- Physical pain and suffering
- Emotional distress
- Loss of enjoyment of life
- Loss of companionship
- Disfigurement
- Permanent disability
- Anxiety and depression
- Trauma and psychological effects
Believe it or not, these damages could easily amount to 1.5 to 5 five times the amount of your total economic damages, including medical expenses and lost earnings. Do not ignore them.
Punitive Damages
Suppose the defendant’s conduct was outrageous (a road rage incident, for example, or a surgeon who operated on you while intoxicated). In that case, you might be entitled to an extra amount known as punitive damages. This element of damages can add up to a lot.
Comparative Fault
Suppose you were intoxicated while climbing that icy staircase. The insurance company will seize upon comparative fault to reduce the amount of your claim. In New York, a judge will assign you and the shop owner a percentage of fault.
If you were 40% at fault, for example, you would lose 40% of your damages. If you were 99% at fault, you would lose 99% of your damages. If you’re negotiating a private settlement, you’ll both have to estimate what percentage of fault a court would assign and then adjust the settlement amount accordingly.
A Buffalo Personal Injury Lawyer Can Help You Assess the Value of Your Claim
As long as your claim is reasonably strong, and the amount you could win makes the case worth pursuing, you shouldn’t have any worries about paying your lawyer. Personal injury lawyers work on a contingency fee basis, which means you only pay if you win.
Contact O’Brien & Ford Buffalo Car Accident and Personal Injury Lawyers, to schedule a free consultation with our Buffalo personal injury attorney and learn more about what your case could be worth.