[Music] Hello and welcome to the Millennial Lawyer Podcast with Mark Shirian. I am your host Kevin Rosenquist and today we’re going to discuss the types of personal injury claims. Mark is going to give us a comprehensive guide. Mark, are you ready to chat about this? 

We’re ready to chat. 

All right, let’s do it. Well let’s start the very very beginning, what are the different types of personal injury claims and how do they vary? 

Obviously we have personal injury. So within personal injury there are different types. You have motor vehicle accidents, you have medical malpractice, premises liability, which could be trip and falls, slip and falls, you have product liability cases where if there’s a defective product that causes injuries, you can sue for money damages because of the way that product was manufactured or designed, and then you have intentional torts, so assault and battery, those are the types of personal injury cases that we handle. 

Can you explain the nuances between intentional torts and negligence in personal injury cases? 

With an intentional tort such as assault or battery, like I said, it’s a one-year statute of limitations. You have to prove that the defendant acted with an intent to cause harm. In contrast with negligence cases, the element of negligence is that there was a duty that the defendant breached. That duty causation, so that breach was related to your damage. And the last element of damage, of negligence rather, are damages. Okay, so you have to show that the defendant acted carelessly or, you know, as reasonable. They didn’t act like a reasonable person under similar circumstances. Okay, so like I said for negligence cases, you have to show that the defendant owed a duty, breached that duty, and caused the plaintiff injuries as a result intentionally. You don’t need to prove that the harm was foreseeable, just that the defendant intended to commit the act. So I would say the biggest thing is with negligence cases, even if you can show that the defendant had a duty and breached that duty, if you can’t prove damages, it’s not going to be much of a case because it’s an element for negligence cases. 

Intentional tort is probably something most people don’t know. I’ve never heard of it before. What does that mean?

Like an intentional act, okay, creating some sort of fear of contact or actual contact that makes you feel uncomfortable. Whether it’s a punch or a shove, that’s what we call a battery. Now an assault is if someone looks to punch you, but doesn’t punch you, or puts his fist out, it doesn’t make actual contact with you. That could be a civil assault in New York okay. 

All right, interesting, well thank you for clarifying. How do personal injury claims related to vehicle accidents differ from something else, like say medical malpractice? 

Well with motor vehicle accident cases, straight negligent standard, so you have to show that you know when you’re on the road, cars are supposed to yield to the right of way, to make sure that they have enough space between other pedestrians and other cars, and to, you know, obey all traffic rules and laws that are on the road. You know, you have to demonstrate that they breach that duty and cause you injuries. With medical malpractice, you need an expert in order to demonstrate that the standard of care was breached as opposed to a car accident case, you don’t typically need an expert to demonstrate that you know another car rear ended you or T-boned you and ran through a red light. With a medical malpractice case, you need to prove that the health care provider deviated from the accepted standard of care causing you injury. And that could vary with respect to the location that you’re in, but again a much higher standard. 

One of the things you mentioned earlier is something that I don’t think I’ve thought about when it comes to personal injury, and perhaps other people listening haven’t, and that’s product liability. What challenges do you face in product liability cases and how do you tend to approach those? 

I’ll tell you, I’ve had a product liability case where, I won’t name the company, but my client, the case was about a bra. So the allegation was that the bra that she was wearing was defective. She was in a warm weather area, the gel padding expanded and contracted and caused burns on her body. As a result of this bra, so the challenge in that case, there were a few of them. Number one, this particular bra had been, for whatever reason, and I’m not sure why ,and I don’t know if it was related to this issue, but the bra had been discontinued. And we had retained an expert to look into this product to see where it was defective, but we were unable to get our hands on this product because it was discontinued, like I said. It was discontinued. But to make matters worse, when this incident happened, where her bra had basically exploded, she threw out the bra. So I would say based on my experience, when you’re dealing with a product liability case, the same way, you know, expect the defendants to preserve evidence, it’s very important that you preserve evidence. Especially the defective product, but I don’t blame my client because the bra exploded and she quickly, you know, she was young at the time, I think she was in her late teens or early 20s. But she went and threw out the bra. 

Yeah I  can’t blame her. 

Yeah we didn’t have, it’s funny, but it did, it was a bit challenging, but we were able to overcome that. But I would say that’s the biggest challenge. Actually keep the product that’s defective. We could get that product in the hands of our own expert to give our opinion as to what exactly was defective about that particular product, without the product. Especially if it’s discontinued and we’re not able to order another one. Very difficult to prove where it was defective. So that’s based on my own personal war stories. 

Yeah just a difference and different kind of challenge than other cases for sure. So it’s important to preserve the evidence, especially in a product space. We talked a bit about slip and fall accidents in the last episode. Can you discuss the legal implications of these and remind victims what they need to prove to succeed in these cases? 

I would say there are a lot of nuances especially in New York. Also, you know, we can get into New York City a little bit, but I think when you’re talking about a slip and fall, a trip and fall, it is imperative that you’re able to show that the owner of that property knew or should have known of this dangerous or defective condition. But there are exceptions to that if it’s a situation where they created that dangerous condition, then you don’t necessarily need to prove that they knew or should have known about the dangerous condition. But because they actually created it. So I can give you an example. If you’re at a store and they mopped you know the people that run the store mopped the floor, and it was wet and they didn’t have any wet signs, beware the floor is wet signs, in that area, that’s a condition that if you can demonstrate they created that condition and made it even more slippery, and you don’t necessarily need to show that they knew or should have known. But the way the law is, you need to show that they had an opportunity that they knew that there was a dangerous condition and that they had an opportunity to clean or you know make good whatever that defective condition is. I’ll go even further. There are protections in New York and I’m sure in other jurisdictions with respect to the weather. You know when you’re talking about snow and ice, that’s something that happens a lot especially, you know, if you’re on Long Island and you’re driving. Black ice is something that I don’t think in Florida they deal with a lot, but making sure that you know that there are these municipalities, are responding to these weather emergencies, whether it’s snow and ice or hail in a timely manner. But like I said there are protections when there’s an ongoing storm. Very difficult to show that, to hold them responsible for incidents that occur while a storm is in progress. It’s called the storm in progress rule that gives these defendants protections with respect to weather in a snowstorm and stuff like that, but again within that there are exceptions. If they knew if there were certain precautions that they should take during a snowstorm, whether you’re talking about a hotel lobby and you know and certain precautions that they should take during a snowstorm that they don’t take or that you know they didn’t take. And they knew that there was a condition within the lobby and they didn’t fix it, and that could be grounds for liability, but those are some nuances with respect to those cases. 

Yeah definitely, I mean I imagine, is there a difference between outside of a business and inside too because, you know, if you’ve got a business, that’s only open Monday through Friday and it storms like crazy on a Saturday, are they expected to make sure the outside is safe?

Like if it’s in a public area, again if you’re talking about the sidewalk, typically at least you know in New York city. sidewalks are the responsibilities not of the city, but the responsibilities of the owners that are directly in front of those sidewalks. Iif there’s a certain defect within the sidewalk, typically that is the responsibility of the owner. Now if your store is closed on certain days, I would say yes, it is your responsibility, whether you’re open or not, to ensure that that sidewalk and the area outside of your store or place of business is safe for the pedestrians that walk in that area. 

Yeah that’s interesting, nuanced for sure. Tell me about premises liability claims. How do they work and what responsibilities do property owners have to ensure safety? Probably actually not a bad segue from what we were just talking about. 

Well property owners are responsible to keep these areas safe, meaning they are required to make repairs when needed. They are required to do inspections, however many inspections are required, but they are required to do periodic inspections. They are required to make sure that these areas are clean and free of any sort of debris. So they are responsible to keep these areas safe and clean, and without any sort of dangerous conditions, and if they are aware of issues and they don’t respond to them in a timely manner, they may be held responsible.

If that causes any sort of injuries, can you share any success stories from a unique personal injury case highlighting the importance of legal representation? 

Yeah, there was a case that I had several years ago where my client was going down the stairs of an apartment building of one of her relatives, and the allegation was that she tripped and fell on these stairs. There was no handrail on the staircase, and our allegation was that the lack of handrails with respect to these stairs contributed to the client’s injuries, which were significant. She had an arm surgery and the defendants in that case were able to demonstrate that this was an old building, I believe it was a building from 1927 something like that. Long story short, this building was grandfathered into a new law, so there was a new law in the 30s that said that these staircases needed to have handles, but with with this particular building, even though they were grandfathered in and they didn’t require to have any sort of handle bars, the law was that if they did not, they were only grandfathered in if they didn’t do any sort of material repairs to the building. So we were able to demonstrate that they actually did do material repairs to this building. 

Sure yeah in that much time, of course. 

Yeah they were not afforded, you know, to be grandfathered into this new law that required, you know, handle bars with respect to the stairs. We were able to retain an expert and we were able to resolve the case, so this is a case that could have very well been thrown out because they were grandfathered in and didn’t even need to have any sort of handle bars with respect to the stairs, we were able to demonstrate that they did in fact do material repairs to this staircase and were not a, you know, they didn’t get the benefit of being grandfathered into this new law, and we were able to resolve the case for a significant amount of money for our clients. So that was a great success story with respect to premises liability. 

Maybe this is just an opinion, but I feel like if it’s a safety issue with a staircase, maybe the grandfather rule should be a little bit altered. 

Well that’s the thing, in New York a lot of buildings are older. 

Sure, I used to live in Chicago and it was the same thing. 

Yeah it’s definitely something, you know, there have been a lot of laws that have been amended and it’s very important to keep abreast of how those things are. But again, I will say a lot of these laws are to protect people and to make things safer for everyone. 

Right. 

So you know and that was the point of that new law right to require these handle bars they were just grandfathered in at the time. So we’re very grateful for the legislator that, you know, that creates laws to protect New Yorkers. 

Absolutely, yeah that’s definitely an interesting one. All right, well thanks for joining us on the Millennial Lawyer podcast with Mark Shirian. If you’d like to get in touch with Mark, please visit shirianpc.com and also please like and subscribe to the channel and stay up on all things New York injury law. Mark, great to see you as always, thanks for being here. 

Great to see you again, thank you. 

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