RES  IPSA  LOQUITOR | THE ACT  SPEAKS  FOR  ITSELF

As we have discussed before, a sustainable lawsuit requires an injured party to demonstrate the liability (fault) of another, at least to some degree, in having caused the incident that resulted in that injury.   Most often this is done through witnesses, with the injured party themselves being the most frequent of these witnesses.

There are numerous other sources of direct proof that can show the target of the lawsuit (the Defendant) failed to act with “due care” based upon a duty the Defendant had with respect to the injured party.

BUT SOMETIMES YOU JUST CANNOT SHOW, BY DIRECT PROOF, THAT ANYONE WAS AT FAULT.

In a recent case (Keyser v. KB Toys, Inc.) in Suffolk County New York, a shopper was injured by falling boxes piled high in a toy store. No employees were near the boxes. The jury found for the defendant toy store.  The judge set aside the decision !!  (Yes, a judge can do that saying that, according to law, there simply was not enough evidence to permit the jury to decide the way it did !!).

The injured party (the Plaintiff) had presented the theory of RES IPSA LOQUITOR which the judge believed was not adequately overcome by the Defendant. This theory is based on the thought that, unless someone was negligent, there are certain events that simply do not occur !

For “RES IPSA LOQUITOR” to be applicable in a case, three elements are necessary:

1. the accident that happened must be of the type that normally would not occur unless there was negligence–an “absence of due care,” by someone;

2. the Defendant had a “duty of care” toward the injured party, specifically in relation to the object that caused the Plaintiff’s injury;

3.  the Plaintiff was in NO WAY responsible for the occurrence of the event that lead to the Plaintiff’s injury.

The “Resp Ipsa Loquitor” doctrine is an important tool in the arsenal of the experienced Personal Injury Attorney.   This article should clearly demonstrate to the layman that, even in the event it would seem to an injured party that it would not pay to being a lawsuit since “no one is at fault”, there may well be a party that is, indeed, responsible and who should be compelled to fairly compensate the Plaintiff for injuries sustained.

THE PERSONAL  INJURY CASE – WHY PERSONAL INJURY CASES TAKE SO LONG, PART II : “THE INTAKE”

Having determined that a case should be accepted into their office, attorneys will be eager to begin acting upon certain crucial matters as soon as possible. The most important of all these crucial matters are those that involve time limits.   There are many “time limits” that, if overlooked, could doom a case virtually before it gets off the ground.  Other time limits, if missed, might not doom the case completely but could amount to a financially costly error.

“Notices of Claim,” that must be timely filed in all cases involving governmental or quasi-governmental authorities or agencies, are a top priority.  Failure to file a properly completed “Notice of Claim”, within the proper time limit, upon the proper agent, and in the proper office designated specifically for that purpose will, in most instances, doom the case . (See this BLOG’s ARCHIVE for more on “NOTICES OF CLAIM”).  In motor vehicle accidents, claims for “No-Fault “ benefits must be timely filed as well as notices to “MVAIC”, the State established agency, that will be available to pay an injured vehicle occupant in the event other vehicle insurance is, for whatever reason, not available.   Failure to file appropriate documents in the prescribed fashion is a failure that can only bring gloom and doom to both an attorney and his client.   For this reason alone, the experience of the attorney you choose is an invaluable commodity!

The basis of an attorney’s relationship with a client is the “Retainer Agreement”.

This sets forth the rules governing the relationship between the attorney and the client.  It should be written in simple language, so that every client should be able to understand it.  The client should feel absolutely free to read it carefully and ask any questions that may come up.  And a client should ask for a copy of the agreement, if one is not offered by the attorney, to take with them for later review.   An attorney is also obligated to send a “Retainer Statement”, which sets forth the identity of the client, the nature of the fee arrangement, and how the client was referred to this particular attorney, to the Office of Court Administration, which is then filed and kept until an eventual “Closing Statement” is sent at the end of the case, describing how the case concluded.

The work immediately following intake does not stop there.  Investigations necessary to the eventual success of a case often begin at once.  Scenes of accidents examined and photographed, witnesses interviewed while the incident is still fresh, clients advised NOT TO SPEAK AT ALL WITH INSURANCE COMPANY AGENTS, hospital records ordered, and a myriad of other items, each specific to the needs of the individual case before the attorney, are tackled at this early stage.  There will be plenty to do later on as the case develops to make it worthwhile to see these important preliminary steps are attended to now. At The Orlow Firm our New York City Personal Injury Attorneys can help you with your case. Call us today.