Negligent Infliction of Emotional Distress

While exposure to the HIV virus, and subsequent contraction of the Aids virus, is no longer, thankfully, a death sentence, it is nevertheless a frightening and life altering event that, without proper and constant lifelong medication could, eventually , lead to a premature death. Consequently, being exposed to the HIV virus, because of the negligence of someone else, may well be grounds for a lawsuit for “emotional distress”.

“Emotional Distress,” unlike a matter involving a purely physical injury, consists entirely of a psychological component.

While a fracture of the ankle cannot be easily faked, the objective determination that “emotional distress” truly exists is far harder to establish. The courts are well aware of this potential for fraud, and rules have been established that, while making it far harder to create a false cause of action, also, unfortunately, do result in many legitimate actions being denied.

To maintain a cause of action arising from a fear of contracting the aids virus, the person bringing the lawsuit (the Plaintiff) must either show:

1. He or she actually contracted the aids virus or, if he or she did not contract the virus, then, 2. That he or she ACTUALLY was exposed to the HIV virus. To show that the exposure to the virus was “ACTUAL” the Plaintiff must show that the way the virus was allegedly transmitted was recognized as a scientifically acceptable means of transmission (such as a hypodermic needle), AND that the source of the possible infection (the blood or other liquid or residue) was, IN FACT, infected with the HIV virus !! If you are, for example, stuck by a needle by accident in some medical office, and the needle is lost (perhaps because maintenance throws the needle out before it can be retrieved), you may well have NO CASE for “emotional distress” for the entire time you wait to find out if you are HIV positive≠unless you eventually DO contract aids. Why? Because you cannot show that the needle was contaminated with the HIV virus.

WARNING: While the rules regarding an action for “emotional distress”, especially in “Aids Phobia” cases, are very stringent, there are some exceptions that have been carved out by the courts. Never assume, in serious matters, that the option of a lawsuit does not exist. Be certain to consult with an experienced personal injury attorney who can guide you through the thicket of laws and court decisions in making the proper decision.

At The Orlow Firm we have over 30 years experience in personal injury law. We will fight for your justice.

Comparative Negligence

How is responsibility for an accident determined?

When someone involved in an accident relates how the accident happened, most times they attribute the “fault” for the accident to the other party.   “He was speeding while I made the left turn”; “he had the red light “, “the bulb was out on the stairway”; in each instance the presumption being that another person was the cause of the accident, and therefore the other person was “at fault”.
For those of us dealing with accidents every day, we have come to expect “two sides to every story”.   This does not necessarily mean someone is lying.  It very often means that two people just see things differently.   Police will tell you that witnesses to the very same occurrence will often see different, if not contradictory, aspects of the same event.  That is human nature.
Except for the rare situation where identifying where fault lays–for example a “rear end” auto collision–where the car being hit squarely in the rear is virtually never held to have any fault whatsoever–most cases have some apportionment of fault..  If a case goes to trial and there is a jury, then the jury will be asked to decide to what extent each party is at fault for the accident.  The jury, based on the evidence presented, can decide any combination of responsibility from 0% for one party and 100% for the other, or any percentage breakdown in between.  The jury is determining the “LIABILITY” of each party.
In the event the matter is settled before there is a trial, then the lawyers for each of the parties will have to agree on the percentage of “LIABILITY” of each party before they can reach a settlement.
The lawyers, or the jury, are comparing the negligence, or fault, of each party.  New York has a “COMPARATIVE NEGLIGENCE” system.   The negligence, or fault, of each party is apportioned.   Then, when the parties, through their lawyers, or the jury, decide how much the injury sustained by the injured party is worth, they can decide exactly how much the injured party actually will receive.  If, for example, it is determined that the fractured ankle suffered by the driver of a vehicle is  “worth” $100,000, and it is decided that the driver was himself 50% responsible, then the driver will only receive $50,000, and not the full $100,000.
Negotiating the settlement of a personal injury lawsuit is, more often than not, as important as being able to successfully take a case to trial.  As personal injury attorneys will tell you, the vast majority of lawsuits are settled before the completion of a trial.   Negotiations are crucial to obtaining a result with which the client will be satisfied and which will fairly and adequately compensate the client for his or her injury.   There is no substitute for experience and, if possible, references by previously satisfied clients, when choosing an injury attorney to represent you.

Posted by New York Accident Injury Attorney Steve Orlow