Personal Injury Claims for Motorcycle Accident Victims

Motorcycle accidents can be fatal and those who do survive often suffer devastating injuries. The federal government estimates that in 2014, the number of deaths on motorcycles was over 27 times that of people in cars. Motorcycle accidents often result in serious brain injuries. In 2015, 40% of motorcyclists involved in fatal accidents were not wearing a helmet. It is for this reason it is important that helmets are worn. Motorcycle helmets are approximately 37% effective in preventing death and approximately 67% effective in preventing brain injuries.

Duty to mitigate
In a New York personal injury action, when a person is injured by the negligence of someone else, even through no fault of his or her own, the injured person has a duty to minimize the consequences of the injury. This is also known as the “duty to mitigate.” In the case of a motorcycle accident, defense counsel may raise a defense to prevent recovery for any injuries caused or enhanced by a plaintiff’s failure to wear a helmet.

New York’s No-Fault Law does not apply to motorcyclists.
Unlike drivers and passengers injured in cars, motorcyclists do not receive the protection of New York’s No-Fault law. This is because motorcyclists do not fall under the statute’s definition of “motor vehicle.” Thus, motorcyclist will not be entitled to receive the benefits of no-fault insurance including payment for accident-related medical bills, lost wages and extraneous expenses such as travel to and from medical appointments and household help.

Motorcyclist plaintiff’s do not have to meet the “serious injury threshold.”
Although motorcyclists do not receive the benefits of New York’s No-Fault law, they also do not have to meet the often challenging “serious injury threshold.” This is the threshold that you must meet in order to sue for pain and suffering resulting from a motor vehicle accident. New York’s No-fault statute sets forth what qualifies as a “serious injury” and limits who can recover for injuries suffered in a car accident.

An experienced personal injury attorney can assist you in getting maximum compensation for your motorcycle accident-related injuries.
Though the fallout after a motorcycle accident may be traumatic and the wellbeing of all parties involved should be the primary concern, you should seek an experienced attorney to represent you in the claim against the driver who hit you. The attorneys at Spiegel, Brown and Fichera, LLP are here to assist you in pursuing your claim, will evaluate your case free of charge and obtain the maximum recovery available for your injuries.

Keeping Kids Safe in the Car

Motor vehicle injuries amongst children are a tragic cause of death that can be prevented by an increased use of the appropriate safety restraints. The first step to keeping kids safe in the car is ensuring the use of a child safety seat, booster seat, or seat belt as their height and weight requirement permits. According to the Center for Disease Control and Prevention, car seats reduce the risk of infant fatality by 71% and to toddlers by 54% in passenger vehicles.

Aside from ensuring kids are buckled up, correct usage of car seats and booster seats can save lives. Knowing which kind of car seat your child should be using based on their age, height and weight is preeminently important. After installing the car seat following your specific car seat’s guidelines, you should register the car seat here to receive any recall notices should they occur.

New York’s Occupant Restraint laws require the following:

  • Children up to the age of 4 must be properly restrained in a federally approved child safety seat that is attached to a vehicle by a seat belt or universal child restraint anchorage (LATCH) system. However, a child who is under the age of 4 and weighs more than 40 pounds may be restrained in a booster seat with a lap/shoulder safety belt.
  • Children ages 4, 5, 6 and 7 must be properly secured in a child restraint system that is designed to accommodate a certain height and weight.
  • Children ages 8 through 15 must be restrained by a seat belt that has both a shoulder and lap belt. According to The CDC states that seat belts reduce the risk of death and severe injury in half for older children and adults.
  • Although not required, it is recommended that children be secured in a booster seat until the child reaches 4 feet 9 inches in height or weighs 100 pounds.

In addition to New York’s laws, the CDC recommends that children be seated in the back seat until the age of 12 to prevent injury from a front seat airbag. The safest spot for children in the back row is the middle back seat. Having your child seated in the back seat reduces his/her risk of death by 33%.

New York recently passed legislation that would require children under the age of 2 to remain in rear facing car seats. The legislation cites a study conducted by the American Academy of Pediatrics that showed a rear-facing car seat best protects a child’s head by “preventing the relatively large head from moving independently of the proportionately smaller neck.” If Governor Cuomo signs this bill, failure to abide by the law will result in a penalty of a fine of $100 and 3 points on the driver’s license for violations involving children under the age of 16. This penalty applies to violations of any of the above referenced requirements under New York’s Occupant Restraint laws.

Above all, parents and caregivers must set an example for children by using a seat belt themselves. As children get older, they may be resistant to comply with the child safety restraint laws, especially if they see a role model ignoring regulations. To keep your kids safe, you must also take your own safety seriously.

 

Back to School Safety For You And Your Children

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Summer is coming to an end and it’s that time of year when our children head back to school. With the new school year approaching, it is important to keep in mind some safety tips to help our children have a safe and successful school year.

Maintain slow speed while driving near schools and residential areas
With the reopening of schools comes increased vehicular traffic as well as child pedestrians, especially at and around the beginning and end of the school day. Around these times, the areas close to schools are potentially dangerous for drivers as well as children walking to and from school. Younger children are less aware of potential danger around them and more impulsive, thus they tend to run in the road unexpectedly. For this reason, is it is important to drive slowly around schools as well as around residential areas where children may be waiting for the school bus.

Encourage children to be aware of their surroundings
It is important to remind your children to be observant of their surroundings while waiting for the school bus or walking to and from school. Not only may there be distracted drivers who may not be looking out for children, but there may be unleashed dogs also posing a potential risk to your children’s safety. If possible, children should walk with other children in the neighborhood so that they are not alone and more visible to drivers.

Recognize warning signs of bullying
Motor vehicle accidents and unleashed dogs are not the only causes of injuries to children, however. In recent years, the incidents of childhood bullying have significantly increased especially due to developing technology. Bullying often occurs over the internet or through phones also known as cyberbullying. Some of the signs children may exhibit if they are being bullied include withdrawing, speaking negatively of their days at school or showing a strong aversion towards going to school. If your child exhibits any of these signs you should reach out to your child’s school if you think your child is a victim of bullying.

Unfortunately, bullying is not always done through technology and can occur in person while your child is at school. As a result of bullying, your child may sustain physical injuries. If your child is injured by another student or a third party at school you may be entitled to compensation.

 

WHAT IS A STATUTE OF LIMITATIONS?

There is a period during which an individual can be charged for a crime or file a lawsuit, called the statute of limitations. It is put in place largely to protect individuals from being sued or criminally charged for a violation beyond a reasonable amount of time. The statute of limitations varies from state to state, but overall does not include serious crimes such as murder, kidnapping or forgery. These crimes do not have a statute of limitations because the perpetrator might remain a danger to society for an open-ended amount of time after the crime was committed.

In the state of New York, the statute of limitations on civil cases ranges depending on the type and facts of each case. For example, a case in which a plaintiff is suing the defendant for intentional emotional distress, the statute of limitations is 1 year. This means, after one year following the traumatic event, an individual could not sue another based on intentional emotional distress

Slip and fall cases and motor vehicle accidents based on a theory of negligence have a slightly longer statute of limitations, and these types of cases can be brought to the court up to 3 years after the event. Medical malpractice cases can be filed up until 2 years and 6 months from the date of malpractice, or from the date of the last treatment rendered by the physician if continually treated by that physician for that condition.

If you’ve been the victim of negligence resulting in personal injury, although you generally have 3 years following the date of incident to file a lawsuit, it is important to note that there are many exceptions to these rules, and an attorney should always be consulted if you feel you’ve been the victim of someone else’s wrongdoing. The attorneys of Spiegel, Brown and Fichera, LLP will provide a free consultation and advise you of these time limits based on the individual circumstances of your case and help you decide the best course of action.

Breathalyzer: Should You Blow?

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You’re on your way home from a night out with friends at the local bar when a police car pulls up behind you with the lights flashing. As you pull your vehicle off the road, your thoughts send you into a panic. Where is my license and registration? What if the officer can tell that I was drinking? Will I be asked to take a breath test? Will I get arrested? Although this blog will not answer all the potential questions that may go through your head, it will give you an idea about New York DWI laws and consequences of refusing to submit to a breath test and provide some situations where it may better to submit to a breath test and situations where it may be better to refuse to submit to a breath test.

New York’s Vehicle and Traffic Law §1192 prohibits driving a motor vehicle when your blood alcohol content (BAC) is .08% or higher. If a police officer has probable cause to believe you are impaired from alcohol, he or she may ask you to submit to a breath test to determine whether your BAC is above the legal limit. Because driving is a privilege, you are obligated to submit to a breath test. Therefore, there are consequences if you refuse a breath test. If you refuse to submit to a breath test you will be subjected to not only criminal proceedings but an administrative refusal hearing conducted by an administrative law judge for the Department of Motor Vehicles (DMV).

If you refuse to submit to a breath test, have no prior offenses and lose at the refusal hearing, there is an automatic 1 year revocation of your driver’s license for a first offense. If however, you have a prior DWI offense within the last 5 years, your driver’s license will be revoked for 18 months if you refuse to submit to a breath test and lose at the refusal hearing. On a first offense, you will be eligible to enroll in a Drinking Driver Program (DDP). Once you complete this course you will be able to apply for a conditional license with the DMV. If however, this is your second offense within 5 years, you will not be eligible to take the DDP. Once you have completed the DDP, you cannot take it again until 5 years has passed since the date of completion. As a result, you will not be eligible to apply for a conditional license.

Situations in which it may be better to submit to a breath test are as follows:

  • Second offense within 5 years and prior offense was a misdemeanor
  • If you possess an out of state driver’s license
  • You are pretty confident that your BAC is below .08%
  • You need to drive for work and cannot lose your license

Situations in which it may be better to refuse to submit to a breath test are as follows:

  • Second offense within 5 years and prior offense was a felony
  • You hold a Commercial Driver’s License (CDL) even if you were not driving a commercial vehicle at the time you were pulled over
  • You are pretty confident that your BAC is higher than .08%

Keep in mind that whether it is better to blow or not depends on each individual case and circumstances. It is for this reason that is important that you contact an attorney experienced in the intricacies of the New York DWI laws. The law firm of Spiegel, Brown and Fichera, LLP has offices in Poughkeepsie and Beacon and will provide an initial consultation free of charge.